Alternative dispute resolution (or “ADR”) has been a hot legal topic for the past ten to twenty years. However it is not always well understood outside the legal profession. At its most basic level, alternative dispute resolution is any process which is used to resolve a case short of a trial. The process can encompass several different forms.
If you are involved in a divorce or custody issue it is very likely that you will at least be offered the opportunity to participate in alternative dispute resolution. The goal of this article is to review some of the more common type of ADR available in domestic cases so you will have a better understanding before you agree to participate.
Alternative dispute resolution has become popular in response to crowded court dockets. In addition, some ADR techniques may help reduce the animosity between opposing parties. However that does not mean ADR is right in every case, nor does it many the various types of ADR are interchangeable.
Mediation is a process where the parties meet with a specially trained mediator to try and work out their differences. The mediator is often a lawyer, social worker or a counselor who has undergone specialized training in mediation. The mediator does not decide issues for the parties. Instead, the mediator helps facilitate a dialogue and encourages the parties to resolve their own conflicts. The goal of mediation is for the parties to negotiate an agreement between themselves to resolve the pending dispute. Mediation can take many different forms. The parties can meet individually with the mediator who relays information back and forth (like shuttle diplomacy in foreign relations). More commonly the parties meet together with the mediator. Also, the parties can meet with the mediator with or without their attorneys. Many jurisdictions have begun requiring mediation before parties can proceed to trial. This is particularly common in cases where child custody or parenting time is an issue.
The belief is that by discussing the matter in a constructive format, the mediator can help resolve the issue and reduce the conflict between the parties. The reduction of tension between the parties is often beneficial to the parties’ children. One of the primary drawbacks to mediation is that it forces the parties to engage in a dialogue, even if they do not want to speak to each other. In particularly bitter cases mediation can actually increase the tension by forcing the parties into a dialogue. In these cases it sometimes is more effective to let the attorneys communicate directly and keep the parties from having contact. In addition, if there have been any prior instances of domestic violence or threatening behavior, mediation may not be appropriate.
Arbitration is similar to mediation in that the parties present their issues to a neutral third party who is specially trained. Unlike mediation, however, arbitrators are generally empowered to hear the parties’ positions and issue decisions. Where a mediator attempts to facilitate a discussion the arbitrator analyzes the evidence and issues a finding. The process is less formal than a court trial and can often be done in private rather than in a public courtroom. Often a retired judge is hired to conduct the arbitration. Arbitration can either be binding (meaning the parties must accept the result and cannot appeal) or non-binding. If the arbitration is binding the parties run the risk of being stuck with an adverse decision they cannot appeal. If the arbitration is non-binding the losing party can demand a completely new trial in front of the judge. This can mean the process becomes longer and more expense than proceeding directly to litigation.
Case Management or Special Master
A case manager or special master is appointed by the trial judge to assist parties in high conflict cases. The case manager has authority to issue decisions after consulting with the parties. The case manager is usually an attorney, social worker or psychiatrist who regularly practices in the domestic area. Because the case manager has fewer cases than a trial judge he or she can issue decisions more quickly. The case manager is not limited by the rules of evidence and does not have to hear from both sides at one sitting – the case manager can speak to one party when they are available and speak to the other party later. As a result the case manager can often issue opinions in a matter of days in situations where the parties might wait weeks just to get a hearing before the judge. Case management is generally non-binding. Either party has the right to appeal an adverse decision of the trial judge in the case. In addition, the court has to approve the case manger’s decision before they become binding although it is common for the decision to be automatically approved if no one objects.
Collaborative divorce is a relatively new phenomenon. In this form of ADR the parties, and their attorneys, contract at the start to work out all issues between themselves. The attorneys are not strictly advocates for their clients rather they perform a role similar to that of a mediator. The attorneys also have investigative functions to perform. The parties agree that they will not seek a trial on the matter. In this way it becomes somewhat like binding mediation, the parties are obligated to work towards a resolution. The attorneys must agree to the process up front and they must be specially trained in the collaborative law process. One drawback is that if the parties are unsuccessful they have to each obtain new counsel. The attorneys pledge they will not represent the clients in any litigation. As a result, if the process breaks down then each party has to hire new counsel with no knowledge of the case. This can be expensive as the new attorneys have to learn the facts of the case and review all of the work that has gone into the case to date.
In the right circumstances ADR can save the parties time, money, energy and aggravation. In the wrong circumstances, however, ADR may inadvertently contribute to the parties’ aggravation and cost everyone more money in the long run. Before you agree to participate in ADR you should thoroughly discuss the pros and cons with a qualified domestic relations attorney.
Ken McRae practices exclusively in the area of domestic relations in the Overland Park, Kansas office of Cordell & Cordell, PC.