By Thomas Tuft

A key consideration to address with a family law attorney is the procedure or method that will be used to resolve the issues in dispute.  These are commonly referred to as Alternative Dispute Resolution (ADR) or Family Dispute Resolution (FDR).  In some cases, multiple approaches are necessary.  The most common methods are mediation, early neutral evaluation, collaborative law, cooperative law, settlement conference, moderated settlement conferences arbitration, and, of course, court litigation. I intend to touch on each of these briefly in this entry and go into more detail about each of them in the coming weeks.

Mediation. This is probably the most commonly used method of ADR.  In this approach, the neutral is to facilitate the discussion of settlement options with a goal of resolving the issues between the parties.  Sometimes the parties' attorneys are present.  There are a number of approaches to mediation which I will address in more detail in future posts.

Early Neutral Evaluation. This is the fastest growing method in Minnesota right now.  In general, there are two types-- social (concerning children) and financial (concerning property and cash flow).  The concept is to get the parties into a neutral evaluator before they become too entrenched in their positions, before formal discovery is served, and before nasty affidavits make settlement difficult or impossible.  Attorneys attend with their clients. The parties (with the assistance of their attorneys) present their issues verbally to the neutral along with supporting documentation as needed.  It is treated as an informal hearing or mini-trial.  After hearing each side present, the neutral deliberates and comes back with a recommendation as to how the court may rule on a given issue.  Then, after getting this feedback, the parties, attorneys, and neutral try to reach a binding agreement on the issues in dispute.  This approach is experiencing a success rate of approximately seventy percent.

Collaborative Law. This approach started in Minnesota and has spread around the world.  Stu Webb, a Minneapolis attorney, conceived this method.  Under this approach, the parties sign a written agreement that they will not go to court unless they reach in impasse. They will use their attorneys, neutral experts, and their own good judgment to resolve the issues themselves.  Generally, the parties and their attorneys meet in four-way conferences to attempt to identify issues, exchange information, and resolve their case.  If they reach an impasse, the parties have to hire new attorneys to take over the case through litigation. There is another concept called Collaborative Team Divorce in which the parties, attorneys and other experts are involved.  This may include a financial planner and a child psychologist, as the case warrants.

Cooperative Law.  This approach adopts many of the concepts of collaborative law, while not requiring the attorneys to withdraw from the case, if it must go to court.

Settlement Conferences. A very common approach is a four-way settlement conference with each attorney and each party sitting down together to address the issues and decide how to resolve them informally.

Moderated Settlement Conferences. This method is much like early neutral evaluation.  However, it is often used in the late stages of a case just before trial. The neutral's job is to settle the case.  The neutral may hear from the parties and their attorneys, may review proposed exhibits, and will likely give very direct feedback in an effort to get the case settled.

Arbitration. Is a process in which the parties hire a neutral to decide their case much like a judge would do.  However, rules and approaches can be decided by contract between the parties.  It may be appropriate where the parties want the proceeding to be more private or they want it to be binding (with no right to appeal) to ensure finality. Sometimes, speed is necessary and a private arbitrator can be more readily available than a judge.  In this process, decision-making is out of the hands of the parties and left to the arbitrator.

Court Litigation. While tried and true, this is probably the most expensive, time consuming, and emotionally stressful.  Like arbitration, the decision-making is out of the hands of the parties and left up to a judicial officer who has to deal with hundreds of other cases as well.

Each of these approaches requires different preparation and a different understanding of the role of the parties, the attorneys and the neutral in that process.  Before selecting a process the parties and their attorneys must consider the legal issues, the cost, the personalities involved, the desired outcome, the interests of the children (if any), the speed of the process, and each party's ability to come to resolution.  Cases involving children, domestic abuse, health (physical and mental), small business interests, nonmarital claims, and spousal maintenance (alimony) require even more careful consideration.

In future posts, I will address each process, including training requirements, the role of the neutral (if any), how to select the neutral, how to prepare for the process, how to participate in the process, the confidentiality of the process, and how to finalize the agreement within the process.