Mediation and Other Alternative Dispute Resolution Services
While I am an attorney I am also trained and qualified to serve as a mediator and arbitrator. I have participated in hundreds of mediations and a variety of other types of alternative dispute resolution processes.
The best family law judges and lawyers all agree that “litigation” is not the best way to resolve family related disputes. Litigation is the traditional court process where each side presents their case to a Judge and the Judge decides how to structure the mutual relationships between parents and children and each other and financial issues like child support, dividing assets or paying spousal maintenance. Litigation is inherently an adversarial process and the process itself drives parties and lawyers to focus on the worst aspects of the other party, which drives a case to be more contentious, more time consuming and invariably more expensive. Litigants that rely on a Judge to structure their lives in the future are generally unhappy with the results and Judges know this better than anyone.
Accordingly, Courts not only prefer, but generally require that parties’ make an effort to resolve their disputes using an "alternative" to litigation. There are a variety of "alternative dispute resolution" (ADR) processes. Briefly, these processes include Mediation, Early Neutral Evaluation (ENE), Evaluations, Arbitration and other combinations or hybridized versions of these processes.
In addition to Judges typically requiring the use of some form of Alternative Dispute Resolution, the Rules of Court in Minnesota generally require the parties to attempt to settle their case outside of court or through the use of "alternative dispute resolution" (ADR) before a trial will be held. Mediation is one of these ADR processes used to resolve disputes when the parties are unable to negotiate a resolution either directly or through their attorneys. Mediation is not a low cost alternative to having at least one lawyer involved in drafting the documents necessary to finalize a divorce or child custody matter. Mediation involves the parties meeting with a neutral mediator to try to settle their dispute(s), whether they involve child custody, parenting time, property division, spousal maintenance, child support or other issues like where a child attends school or modifying prior orders if someone moves for instance.
Mediation encourages parties to take responsibility for resolving their own problems and to depend less on the professionals. Mediation often works well in allowing the parties to retain more control over their settlement; it reduces the level of hostility and can often save time and money. I generally do not recommend mediation until and unless the party gets legal advice from an experienced attorney in advance of the mediation so they can be prepared to settle their case appropriately.
If the parties are able to reach an agreement in mediation, the mediator will generally prepare a Mediated Settlement Agreement specifying the terms of the parties' tentative agreements and both parties receive a copy. Both parties are encouraged to review the terms of the agreement with an attorney. If mediation is unsuccessful, there are other dispute resolution processes to further assist the parties or either party generally has a right to a trial at the end of the litigation process.
Some of the advantages of
- People who reach agreement in mediation are more likely to be satisfied with the terms of their divorce.
- People who reach agreement in mediation are more likely to comply with the terms of the divorce and less likely to return to court.
- People who have reached agreement in mediation tend to find it easier to deal with their former spouse after divorce. This is especially important if there are children of the marriage.
Early Neutral Evaluation (ENE)
Early Neutral Evaluation is another ADR method gaining popularity around the State. ENE has become the favored approach to dispute resolution in many counties that have adopted ENE programs. ENE has proven to be very successful in resolving both custody and parenting time issues and financial issues. Custody and Parenting Time ENE is often referred to as CPENE or Social ENE. The acronym for a financial ENE is simply FENE.
A Custody and Parenting Time ENE generally involves an experienced and trained male/female team of evaluators and each party has the opportunity to present a summary version of their case to the team. Both parties have an opportunity to respond to the presentation of the other party and the attorneys have the opportunity to offer comments or help in the presentation. The team of evaluators then meets privately, evaluate and discuss the information presented and thereafter make recommendations to the parties based on all of their experience with Judges, trials, custody evaluations and all of the other factors influencing family law outcomes. Having this happen early in a case with neutral experienced professionals who can offer an opinion on eventual outcomes is often very beneficial and helps people settle their cases between themselves, saving time and money and avoiding the stress, anxiety and adversity of litigation.
If you want to learn more about ENE or other forms of Alternative Dispute Resolution please feel free to call me for a free consultation.