Alternate dispute resolution, sometimes referred to as ADR, has taken many paths in family law litigation in the last twenty years. Some would ask why we even need an “alternative”? Don’t our civil courts handle the disputes? In the event Mom and Dad or Husband and Wife cannot reach an agreement on their own, why shouldn’t we just present evidence to the Court or a jury? Why isn’t this the best dispute resolution mechanism for family law conflicts?
The primary reason is that matters related to family law issues are more “private” than most other civil litigation. In our legal system we have two types of litigation: criminal matters and civil matters. Criminal is when the State brings a case against a person for violation of an offense as defined by our laws. If found guilty, the person can be put in jail or fined. In civil litigation, person A sues person B for an act that caused damages to person A. For example, your neighbor’s tree falls across your new car. Damages have been incurred by you and either the neighbor or their insurance carrier will likely pay damages. Where does family law litigation fit in those two scenarios? It isn’t a criminal offense, so, by default, it’s heard in our civil courts. It’s somewhat of a “round peg in a square hole”. Most people whose marriage is coming to an end would prefer not to play out the events that have occurred in a personal relationship in such a public forum. And although damages are sometimes appropriate, by and large, most people just want a divorce to be granted so they can move on. Similarly, parties in a dispute regarding terms of custody or child related issues recognize the potential harm to the child in protracted litigation at the courthouse.
What are our options? In larger cities, collaborative law has become a very good model. Each party contracts with an attorney, a neutral mental health expert and a neutral financial expert. The contract states the parties, counsel and their experts will engage in a series of round table meetings with the goal to honestly vocalize each party’s goals and collaboratively resolve disputed issues. In the event of a failed collaborative process, each party would be required to hire a different attorney for a trial due to the free flow of information exchanged in each meeting. Otherwise lawyers would be strategizing during the collaborative process of how information could be used against the other party in trial. Unfortunately, in smaller communities, there are simply not enough family law practitioners to be disqualified from any case where the parties attempted collaborative law and the process failed.
Mediation is utilized in most family law cases. In fact, in about half of the eleven counties that I practice, local rules require mediation before cases may be tried before the Court. In mediation, parties select a mediator, or one is appointed by the Court. The mediator is usually a family law attorney. The parties attend mediation with their attorney and occasionally parties may take another supportive person with them to mediation; however, if the mediator thinks that person is not assisting with the promotion of settlement, they will be asked to leave. In contrast to the collaborative process, parties to mediation are usually not in one room with the opposing side. Mediators will place each party and their attorney in a separate room, called a caucus. The mediator will then go back and forth from room to room taking offers made by the other side. The mediator attempts to explain the position of the other side and with the assistance of the party’s attorney, a “counter-offer” is made. Through this process many cases are amicably resolved without the necessity of trial.
Sometimes emotional and financial pressures do not allow parties to utilize formal mechanisms of dispute resolution. Many families will begin litigation expecting a quick and inexpensive resolution in the Courts. After preparing for the first hearing, called temporary orders, exchanging information such as inventories and appraisements, formal discovery and taking depositions, parties resolve to “sit down at the kitchen table” and work out a viable option they can both “live with” just to avoid months of litigation and the effect it may have on themselves and the children. Even if the attorneys are not present at the negotiation table, they should be consulted prior to finalization of the agreement so that each party is entering into the agreement knowing all ramifications and legal effect to their negotiated settlement.
If you or someone you know is going through a divorce or child related litigation, encourage them to utilize some form of alternate dispute resolution. Our judges certainly appreciate all efforts made by attorneys and their clients to resolve issues out of court.
