Alternative Dispute Resolution
Divorce Mediation, Early Neutral Evaluation (ENE) and Arbitration
Alternative Dispute Resolution (“ADR”) is mandated by the Minnesota Rules of Practice for the District Courts, and is required by most county courts in Minnesota, for parents going through a divorce or other family court matter. Even in cases where it is not required, it may be very beneficial for you to consider participating in one or more forms of ADR before proceeding with a trial. There are several different forms of ADR available to resolve disputed family court issues (nine of them, in fact), and often times they can be a much more efficient and better way to address those disputes than by taking them to court to be decided by a judge. ADR usually involves at least one neutral person, who is not representing or advocating for either party, and may have some special expertise or training in the subject matter of the dispute.
The Advantages of ADR
There are many advantages to addressing your disputes in an alternative process to a trial in court. Some of those advantages are specific to the method of ADR that you select. For example, while most forms of ADR involve a neutral person, sometimes that person will have the authority to make a decision, while other times that person will not make any decisions, but rather, simply assist the parties in reaching a compromised settlement. In either case, here are just a few of the advantages to nearly all of the methods of ADR, which underscore the desirability of participating in ADR:
- You can address your disputes much more quickly than you can by going through the court process.
- You can choose the person who will serve in the neutral role in your case. Do you want to use a forensic expert as a neutral for a custody or parenting time dispute? Do you want to use a business valuation expert? An accountant? A real estate appraiser? You can!
- Sometimes you have the option of establishing your own, unique rules of procedure and/or evidence in your ADR process.
- Sometimes you have the option of establishing your own, specific criteria by which the neutral will follow in the ADR process, or your own criteria by which the neutral will decide the issue (if you use that type of neutral).
- You can choose whether to participate in a binding or non-binding ADR process.
Early Neutral Evaluation
Early Neutral Evaluation (“ENE”) has become a very effective form of ADR, and participation in the ENE process is now required by the family courts in many counties. This process involves an expert or other very experienced professional, usually an attorney, who examines and evaluates the parties’ claims, from a neutral standpoint. This person might also have more extensive experience in the specific county in which your case is located and, as such, might have a better idea as to how the local judges are likely to view your disputed issues. The ENE neutral will give you an opinion as to what they believe is more or less likely to happen in court, based on anything from valuing property, to determining child support and spousal maintenance, to assessing custody and parenting time. They can offer a professional opinion, from which both parties can gain insight about the legal issues that they face.
Mediation is the most commonly utilized form of ADR in family court disputes. Mediation involves a neutral person (the mediator) who assists the parties in exploring settlement options. The mediator does not make any decisions for the parties. Rather, the mediator helps the parties by listening to their concerns, and making suggestions for settlement. It is highly recommended that you utilize the services of a mediator who is familiar with the subject matter of the dispute. Many attorneys, including myself, offer mediation services. However, it is not necessary to hire a lawyer or expert to serve in that role. The parties can save on the costs of mediation by instead utilizing a non-lawyer mediator, such as a mutual friend, counselor, professional, or religious advisor.
Both ENE and Mediation are confidential processes. The parties may not obtain the neutral’s notes, or call the neutral to testify at a hearing or trial in their case. So unless the parties agree otherwise, what is discussed in these sessions stays there! Want to know more about how a mediator can help you? Contact me!
In my opinion, one of the most widely underutilized forms of ADR for family court matters is arbitration. Unlike mediation, arbitration involves a neutral who will actually decide the disputed issues in your case, after reviewing the evidence and hearing the arguments. All of the advantages of ADR listed above are applicable to arbitration. While arbitration is a very common form of ADR in labor and employment disputes, as well as several other forms of civil disputes, it has not yet become a popular form of ADR in family court, although it could be argued that family court is where it is needed the most!
Free Consultations With a Shakopee Divorce Lawyer
There are many other forms of ADR available to those going through a family court dispute. If you would like to discuss any of them further, or are searching for an appropriate neutral to serve in your case, don’t hesitate to contact me!