In Minnesota, once a family court case is filed, many judges will ask that the parties attend Alternative Dispute Resolution (“ADR”). ADR consists of several different options for resolving the issues in the case outside of court. This allows for the parties and a neutral facilitator to try to reach agreements themselves, as opposed to leaving the decisions to a Judge at a motion hearing or trial. Court appearances and trials are very expensive, so it is always recommended that parties attempt to settle the case through ADR before proceeding in Court. An overview of ADR can be found here:https://www.revisor.mn.gov/court_rules/gp/id/114/. Here are the different types of ADR that are frequently utilized in family court cases:
1. Mediation: Mediation is a forum in which an agreed-upon third-party neutral facilitates communication between the parties to promote settlement. Unlike other forms of ADR, the mediator cannot make recommendations or give opinions—they only act as the facilitator. Mediators are to remain unbiased, and they simply listen to the facts. Typically, a mediator starts by hearing both parties’ positions on the issues and asks background questions to better understand the case. The parties usually then go into separate rooms with their attorneys and make settlement proposals back and forth to try and reach an agreement. Unless otherwise agreed upon, the mediator’s fees are typically split by the parties. Mediation can cost anywhere from $80/hour to $300/hour. Mediation is entirely confidential, unless the parties come to an agreement that they choose to memorialize for the Court.
2. Early Neutral Evaluations (“ENEs”): An ENE is an evaluative process designed to facilitate custody, parenting time, or financial agreements. The difference between mediation and ENEs is that an agreed-upon third-party neutral evaluator (unlike a mediator, in general) gives evaluative feedback and recommendations. The process is largely the same as it is with mediation, whereby the ENE provider would start by hearing both parties’ positions on the issues and asks questions to better understand the case. The evaluator may also separate the parties to ask them questions individually. Then, the evaluator provides their recommendations on the issues. ENE providers are provided through the county, whereas mediators are not. Each county has a roster of ENE providers that they accept. ENE fees are mandated by each county individually; however they are typically half of the cost of your attorney’s hourly rate. There are two types of ENEs:
- Social Early Neutral Evaluation (“SENE”): An SENE is used for custody and parenting time issues.
- Financial Early Neutral Evaluation (“FENE”): An FENE is used for financial issues such as asset and debt division, spousal maintenance, and non-marital claims.
3. Facilitated and/or Moderated Settlement Conference: A facilitated and/or moderated settlement conference is not substantively different than mediation, however it is typically court ordered and may be held at the courthouse. An agreed upon third-party neutral facilitates the settlement conference, which is usually held close to the time of trial as a last attempt to settle. Here, the neutral offers an opinion on the strengths and weaknesses of both sides of the case. Unlike a mediation which usually occurs at the beginning of a case, a facilitated and/or moderated settlement conference typically occurs when the parties are prepared for trial with all information having been previously
exchanged by the parties and/or their attorneys.
4. Arbitration: Arbitration is essentially an informal version of a trial, whereby an agreed upon third-party neutral acts as a “judge” and makes a binding decision after the parties and/or their attorneys present the dispute. You can provide evidence to the arbitrator in the same way you would to the Court. Arbitration can be “binding,” which means that the parties waive their right to a trial and agree to accept the arbitrator’s decision as final. Alternatively, arbitration can be “non-binding,” where the parties may request a trial if they do not accept the arbitrator’s decision. An arbitrator’s decision may not be appealed. Unless otherwise agreed upon, the arbitrator’s fees are typically split by the parties. Arbitration is typically suggested when all other avenues have been exhausted and the parties would prefer not to submit the issue to the judge. An arbitrator’s scope of authority can be found here: https://www.revisor.mn.gov/statutes/cite/572B.15 .
5. Consensual Special Magistrate “CSM”: A consensual special magistrate is similar to an arbitrator in that they act as a “judge,” and each party presents their position to this agreed upon third-party neutral. This is a binding process, so the parties waive their right to a trial. However, if a party disagrees with a CSM’s decision, they have the right to appeal, unlike in arbitration. Unless otherwise agreed upon, the CSM’s fees are typically split by the parties. Similar to arbitration, a CSM is typically suggested when all other avenues have been exhausted and the parties would prefer not to submit the issue to the judge. A CSM can only be used if there is an amount in controversy over $50,000. A CSM’s scope of authority can be found here: https://www.revisor.mn.gov/statutes/cite/484.74 .
6. ADR Specific to Custody and Parenting Time: For all of the below options, fees are typically split by the parties unless otherwise agreed upon.
- Brief Focused Assessment: This is an evaluation of a certain issue, or set of issues, done by a qualified neutral custody evaluator or someone from the Court services.
- Custody Evaluation: This is a comprehensive full-scale evaluation done by a qualified neutral custody evaluator. A custody evaluation can be ordered by the Judge if necessary, or the parties can agree to one. The custody evaluation will include a complete assessment of the best interest factors, which can be found here:
https://www.revisor.mn.gov/statutes/cite/518.17.
7. Parenting Time Expeditor (“PTE”): This is a qualified neutral assigned to the case to help assess parenting time and move along the negotiation process. A PTE has the authority to (a) enforce the terms of all court orders; (b) interpret and clarify any ambiguities of any terms in the court orders; and (c) decide parenting issues that were not previously contemplated in any court order. Any decision of a PTE will be reduced to writing and shall be binding and enforceable as though it was a court order. If a party does not comply with an agreement of the parties or a decision of the PTE, any party may bring a motion with the court and shall attach a copy of the parties’ written agreement or decision of the PTE. The court may then enforce, modify, or vacate the parties’ agreement or the PTE’s decision. The PTE’s scope of authority can be found here: https://www.revisor.mn.gov/statutes/cite/518.1751 .
8. Parenting Consultant (“PC”): This is a qualified neutral that is hired by the parties to resolve any parenting issues that occur, removing the need to argue back and forth between counsel and the Court. If a party does not agree with a Parenting Consultant’s decision, they can appeal it.
If you are interested in utilizing ADR in a family court case, contact the family law attorneys at Heimerl & Lammers today at (612) 294-2200.