What is Alternative Dispute Resolution?
Alternative Dispute Resolution (ADR) is a crucial component of modern family law practice. It provides an effective and efficient way for parties to resolve their disputes outside of traditional court litigation. With the court system burdened by numerous cases and complexities associated with each individual matter, ADR offers an opportunity to save time, reduce costs, and create resolutions that better suit the unique circumstances of each family.
In family law, ADR encompasses several methods for resolving disputes, including mediation, arbitration, collaborative law, and neutral evaluation. Each of these processes has its advantages and can be tailored to meet the specific needs of the individuals involved.
Mediation is one of the most common forms of ADR in family law. During the process, a trained third-party expert, known as the mediator, facilitates discussions between parties who are unable to reach an agreement on their own. The mediator does not have the authority to make decisions for the parties, but rather helps them navigate their disagreements and find common ground. Successful mediation results in a Memorandum of Understanding, which is a legally binding contract once signed by both parties.
Arbitration is a more formal process than mediation, with both parties agreeing to present their arguments to an arbitrator who hears the evidence and then makes a decision. This method is similar to a trial, although typically less expensive and time-consuming . The decision made by the arbitrator is final and binding, unless otherwise agreed by the parties or permitted by law.
Collaborative law is another approach that focuses on cooperation between the parties and their legal counsel, with the aim of reaching a satisfactory resolution without resorting to court intervention. Each participant signs a participation agreement in which they commit to resolving the divorce issues among themselves and agree not to litigate. If a resolution cannot be achieved, the lawyers withdraw from the case and the parties must find new legal representation to resume normal litigation.
Finally, neutral evaluation provides an opportunity for both parties to discuss their family law disputes with a neutral evaluator, generally an expert in the family law field. The neutral evaluator will listen to evidence and testimony from both sides, and thereafter provide views on the strengths and weaknesses of each party’s case and on a potential resolution. After neutral evaluation, the parties may go to mediation.
Each of these ADR processes provides couples and their legal teams with a wide array of options that allow litigants to craft creative results that accomplish their needs or avoid adjudication of matters to settle their issues expediently. Furthermore, ADR provides the opportunity to find resolution to a family law matter without subjecting the private details to public court scrutiny.
Forms of Alternative Dispute Resolution
The most common types of Alternative Dispute Resolution used in family law are mediation, arbitration and collaborative law. These three forms of ADR have similarities but also important distinctions.
Mediation
Mediation is an informal settlement negotiation involving a neutral third party, the mediator, who has no decision-making authority. Each of the parties may suggest a list of possible mediators and the two most commonly suggested mediators will "size up" the case and determine who would be more qualified to facilitate the mediation. Each party then has a right to agree or disagree with the mediator’s determination of his/her qualifications.
Once a mediator is selected, each party will fill out an information sheet which sets out the issues to be mediated as well as the party’s thoughts as to their respective positions as to those issues. (The information sheets are sometimes shared, although not always, depending on the approach of the mediator.)
Parties may and often will express their opinions about what they feel is fair and/or equitable based on their individual perspectives. No decisions are made during this phase of the process. The mediator will point out and reiterate to each party that no opinions or positions expressed by either one of the parties is a guarantee of legal entitlements. The mediator will insist that each party retain counsel at least for advice as to entitlement, so that each party can make a fully informed decision as to their final settlement proposal.
Once the mediator has received all the information sheets and discussed their contents with each party, a date for the mediation will be scheduled. Prior to the mediation session, the mediator will meet with each party separately for approximately 5 – 15 minutes. During these pre-mediation sessions, the parties will have an opportunity to discuss their opinions and feelings about the process. Often times, if one of the parties has a pressing need for closure within a certain period of time, they will point out that if the parties cannot agree, they might be forced to go to court. The mediator will remind the parties that if the parties can work together with the mediator, they can avoid litigation and the expense and adverse impact that it will have on their children.
During mediation, after the mediator has discussed the pertinent issues with the parties as well as the obstacles that they have encountered in resolving their family law dispute, the mediator will suggest an offer that he/she feels might bring the parties closer together. If the recommendation is not accepted, the mediator will suggest that they each prepare a new offer to submit to the mediator.
Mediation is a flexible process. The parties need not proceed in any particular order. They can skip around from issue to issue. This gives the mediator the view that he/she needs in order to determine what they should be focused on in order to resolve their family law dispute. It also provides the parties with some flexibility in terms of strategically negotiating various settlement proposals, similar to what they might do if they were to go to trial.
Arbitration
Arbitration is a little more formal than mediation. The parties appoint a third party, often a retired judge, to decide what they "should" do, just like a judge in Family Court. The arbitrator makes a decision after having heard evidence from the parties. In the event that the process becomes seemingly too lengthy to ever reach a resolution, the parties can agree to terminate the proceeding and return to court for the purpose of having a judge decide what they should do.
Collaborative Law
Collaborative Law is a process wherein the parties and their respective counsel agree not to litigate. The negotiations are privileged and confidential. Although settlement discussions may involve experts/delegates, only the attorneys can appear in court and the attorneys agree to withdraw from the case if a judicial proceeding becomes necessary. Collaborative Law cannot be used in circumstances involving domestic abuse.
Advantages of ADR for Family Law Disputes
The preference for ADR to the litigation process holds numerous advantages in family law matters. The most fundamental benefit of ADR is cost-effectiveness. Family litigation can be incredibly expensive, with tens of thousands of dollars easily incurred for motion practice alone. The parties and their children are better served when these costs are spent on something other than legal fees. Whereas litigating a matter before a judge takes months and sometimes years, mediation and arbitration can be completed within weeks, if not months. The ability to resolve matters sooner than court mandates are also beneficial from an emotional perspective. Cases that drag on for long periods of time generally increase tension and prolong disputes. As with any family litigation, ADR allows for parties to maintain a level of control over their case and the desired outcome. The parties can work together to create the best plan of action for everyone involved. Yet another advantage for ADR is that the proceedings are private and confidential. When attending Court, the record becomes public and anyone can walk into a courtroom to observe private family matters discussed as though they were nothing more than a business transaction. All of this takes place under the scrutiny of an officer of the judicial system. Further, the actual proceedings at the courthouse can be lengthy and often require hours of waiting in a small room or hallway with your family and opposing party. This lack of privacy can cause many people to feel uncomfortable. ADR proceedings are narrowly tailored to your specific case.
A Deeper Dive into Mediation
Mediation is another non-adversarial process designed to assist in the resolution of family law disputes. Mediation is not mandatory but occurs with some frequency as opposed to some of the other methods of settlement negotiation. It usually takes place shortly after the Initial Case Management Conference and is scheduled to last 3 hours. Consequently, it is not uncommon to find individuals expressing concern about attending a session as a result of time constraints.
While the process is voluntary, once the litigation process begins and especially post-CMC, parties are provided with the opportunity to engage in this process. The Court will then enter an Order compelling the attendance of the parties unless there is good cause not to proceed. For example, the Court may deem it inappropriate where any number of statutory bases exist which may include serious allegations of domestic violence or child abuse or neglect or where one party alleges that the other is making abusive threats of physical violence.
A mediator (who must be qualified pursuant to the New Jersey Rules of Court) is selected and a date is scheduled for the couples’ attendance. The parties are instructed, in advance, as to the purpose of the mediation and are expected to come prepared with income information, complete an equitable distribution checklist, bring I.R.S. Forms W-2, 1099 or K-1 along with documentation substantiating assets and liabilities such as bank statements, pay stubs, tax returns, credit card statements and appraisals. Further, the couples are told what the "ground rules" are at the outset; basically a list of guidelines intended to provide structure to the process so that each side gets a fair opportunity to present position and offers. It is also suggested that couples begin to think about (and bring with them) what outcome(s) they consider acceptable within the context of reasonable ranges or ranges of proposals.
Essentially, a mediator is meant to be neutral; in other words he/she is not to insert his or her own agenda into the situation and must remain objective. Their job is not to advocate for the position of a particular party, or to make any type of decision for the couple. In fact, the mediator informs the couple of the limitations of what he or she can do. The mediator is not a Judge, nor will he or she be asked to step into that role. Rather, the mediator acts as a facilitator to help the couple focus on the issues as well as the process of negotiation itself. He or she will ask questions and make suggestions in an attempt to get couples to focus on settlement as opposed to dwelling on or prolonging the conflicts inherent in the litigation process. The mediator often meets with the couple in a single room but may move back and forth between rooms, intentionally remaining relatively removed from the decision-making process in order to maintain neutrality.
The process may be fairly straightforward where issues have been largely resolved prior to the session. In such situations the couple might only need to fill in the blanks on an already prepared settlement agreement. If, however, issues are more complex, more discussion and proposal making is the norm. It is not at all strange to see the process take several joint sessions, depending on complexity and the willingness of the couple to negotiate. The mediator’s objective is not to leave the matter "half finished," but rather to identify and resolve regardless of the number of sessions that may require.
Essentially, mediation has been found an effective tool both in and out of the litigation process. Mediators seek to expedite the resolution of the couple’s matter, either through the preparation of a binding Agreement, a Memorandum of Understanding or a Term Sheet from which a Separation Agreement can be drafted. Because the process is voluntary and frankly, in large measure, might depend on a willingness of the couple to be honest regarding their dispute and its resolution, it is often difficult to ascertain the effectiveness of the process in resolving as opposed to further entrenching positions.
Even so, mediation is a tool often relied upon by legal and mental health professionals alike. In that regard, clients should not hesitate to suggest, request or ask questions of their retained, experienced family law attorneys about the process.
Family Law and Arbitration
Arbitration is similar to mediation in that it puts a skilled neutral in front of you and your spouse, but the process of arbitration is a much more formal one. In arbitration, parties give up the right to a judge and jury trial, and the matter is fully or partially presented to an arbitrator. Generally held in arbitration rooms, the arbitration can be conducted in much the same way as a trial, i.e., witnesses are called, evidence is presented, and after all the evidence is submitted, the arbitrator renders their final decision.
The end result is binding on both parties (unless the matter which has been subject to arbitration is to be decided by a jury). Furthermore, the only way to appeal the decision of an arbitrator is to assert a claim that the arbitrator exceeded his/her powers or violated the rules of procedure. As such, arbitration should not be confused with alternative dispute resolution techniques such as mediation.
The Collaborative Law Process
Collaborative law is a problem-solving process where the parties agree to work with specially trained collaborative lawyers in the spirit of transparency and cooperation. In the collaborative law model clients agree that the best outcome for everyone is found outside of the court process with open disclosure and honesty on both sides and use of neutral experts to facilitate the discussions. The lawyers in the collaborative model do not act as litigation counsel if the matter ends up in court. This aspect of the collaborative model is integral to its success and allows all parties to move forward with confidence knowing that the expert advice they received in the collaborative process will not be used by any of the parties in court to challenge each other’s position .
The parties commit to settlement negotiations and contractually agree to create their own solutions to issues, including parenting issues. The Collaborative Model uses voluntarily exchanged four-way meetings with each lawyer present, and other professionals, including financial experts, child specialist and/or mental health specialists to help the family reach an understanding of the family goals, of the values of each family member, and to identify options.
If the matter does end up in court, each party will need to hire new divorce lawyers because the collaborative lawyers are disqualified from doing anything further on behalf of the client in court proceedings.
Selecting the Most Suitable Method of ADR
In choosing the right ADR method, analysing the factors at play will provide some guidance. What is the level of animosity between the parties? If there are strong feelings of resentment, distrust, lack of co-operation and general dislike, then perhaps you do not want to bring them together but try a more formal approach first. Of course, animosity can exist in ADR itself when there are disputes about what should happen. So if the parties are seeking to resolve matters if at all, through an ADR method, then understand from the outset that animosity might be one of the results of the process. If, on the other hand, the parties would prefer to save money (ADR is cheaper than going to court) and reduce the level of stress and tension, as well as avoid a public hearing, you may wish to consider whether a mediation might be appropriate. Mediation has a good success rate for reaching settlement but be warned that it can be a volatile process and normal precautions should be taken to ensure that the safety and security of both parties are preserved. Complexity of issues. You must look at the issues at play to see which procedure suits the case best. I always advise that no matter how simple or straightforward the issues are, the parties take professional legal advice before they embark on any form of ADR procedure. In addition, analyse whether a round table meeting is appropriate because it is vital that the parties are able to express themselves openly and honestly with the other party, which cannot happen in mediation if they choose to have solicitors present. Another factor to consider is whether the parties will settle matters if there is a round table meeting, or whether they will be pragmatic and only do so because they will save money in the long run. If that is the case, it is likely that they will need to draw on family consultants to help them and possibly have those consultants prepare a report for the court to help the parties move forward.
The Importance of Representation During Alternative Dispute Resolution
Even though the intent of ADR is to engage parties in a collaborative process, such sessions can sometimes become contentious if participants are not represented by legal counsel. Each party to the process should always have a lawyer review any proposed agreements or terms so that the negotiator is working from an informed position and understands how the current issue fits into the broader picture of the overall case. When one or more party does not have counsel this becomes even more crucial as it is all too easy to agree to something when the full ramifications of that agreement are not understood.
Further, one party may try to use the absence of representation as leverage by trying to push the other side into settlement terms that are clearly unreasonable or trying to use a recent agreement to shift focus from current issues that could have major implications for that party. By having legal representation involved, the negotiations are fairer and the chances of getting an optimal outcome that is firmly rooted in a complete understanding of the issue are greatly increased.
Practical Applications: Case Studies and Examples
Real-life examples of successful ADR in family law cases can be found in many situations where traditional litigation would have led to a negative outcome for one or more parties. For instance, an experienced mediator recently worked with a couple who had been involved in an acrimonious divorce for more than a year. With both parties emotionally spent, it was clear that the trial process would have left one spouse with fewer assets and higher emotional scars to show for it. The mediator was able to bring them together in the same room and hashed out a settlement in several hours.
While getting help from a private mediator is not free or quick, their credentials and experience with similar matters often allow them to quickly identify what is important to each party so that they can reach an agreement.
Another recent example occurred with a lawyer who was asked to represent a father in a custody case. The father had no time for attorney fees , and was adamant that he would only accept a proposal that gave him full custody of his two children. The lawyer was able to get a phone appointment with the mother (who lived halfway across the country) and had her agree to an arrangement that allowed her to see the kids three weekends per month.
In this case, the father walked away with his children. While that was what he wanted, a lawyer can quickly identify whether the other party will never give in and if they are willing to be unreasonable. An experienced attorney should be able to identify faster and more efficiently than any mediator whether it is desirable to proceed with such clients or to find other avenues by which to find another way to get the dispute resolved.