MEDIATION AND ALTERNATIVE DISPUTE RESOLUTION (ADR)

Alternative Dispute Resolution (ADR)

 

Is a forum to resolve a dispute outside of Court. Most commonly, those forums are arbitration and mediation.

 

 

 

WHAT IS MEDIATION?

 

The parties meet with a Mediator, who is an objective third party, that will try to focus the parties on the issues and try to “facilitate” an agreement between the parties to resolve their dispute. A mediator is sometimes called a facilitator.

 

Most mediators are attorneys or therapists that have completed mediation training.

 

Mediation can take place with or without attorneys. Mediation with attorneys usually take less time because the attorneys are part of the process, and each client is able to consult with counsel throughout the process.

 

If parties attend mediation without counsel, and then consult with counsel later to review the settlement terms or the proposed agreement, re-negotiation, additional mediation sessions, and/or revisions usually become necessary and there is more back and forth.

 

Sometimes a mediator will draft a Memorandum of Understanding at the conclusion of the Mediation. It is extremely important to review a Proposed Agreement and/or Memorandum of Understanding with an attorney BEFORE you sign it! They are important legal documents which may become a Contract or part of a Judgment which will control your rights or obligations.

 

Like attorneys, Mediators have different personalities, styles, philosophies and backgrounds.

 

Some mediators feel that they are simply facilitators and should not make suggestions, provide information, give recommendations, etc.; those mediators allow parties to agree to settlement on their own terms, even if the mediator knows the terms are extremely one-sided or unfair, one party has a more dominant personality, or the parties have unequal bargaining power. This is especially dangerous when parties attend without attorneys.

 

To resolve divorce litigation, I prefer mediators who are personable, practical, experienced attorneys. I feel that experienced attorneys know the issues and likely potential outcomes, if litigated, and can use that knowledge to direct the conversation to help the parties resolve their dispute expeditiously and fairly.

 

If parties are dealing with family/parenting issues, a therapist mediator may be more qualified.

   

 

Mediation works at the right time and most cases will resolve at or shortly after mediation. Mediation is now built into the court process, but parties and counsel can elect to attend at any time.

 

If my client is aware of the family finances with access to statements, tax returns and records, we can participate in mediation immediately. If my client has limited knowledge, we may first need to exchange financial disclosure statements and do some initial paper discovery before attending mediation, or coming to a resolution. If a party is self employed or has a side business etc., we may need additional discovery or an accountant. Each case is different, but when done at the right time, mediation does work.

 

Advantages of Mediation-

 

Cutting off the litigation;

Saving time and money, because while mediation is expensive, litigation is much more expensive;

Moving on with your lives faster and reducing the emotional cost on all parties involved, including children;

Controlling your own destiny, instead of having a stranger make a decision for your life.

 

Over 90% of all cases settle and do not go to trial.

 

 

WHAT IS ARBITRATION?

 

Arbitration is a “trial” in front of a private Arbitrator (“private Judge”) instead of the Judge appointed in Court. A third party will still make the decision in your case. If parties choose to attend arbitration in a divorce context, same is usually binding with limited rights of appeal.

 

Matters where the Judge would have to report the parties to authorities at the conclusion of the trial, that cannot resolve their dispute in mediation, will need to attend arbitration in lieu of trial. Those matters typically involve a self employed party.

 

Advantages of Arbitration-

The parties can select an Arbitrator with a specialty;

Faster than litigation through the Court, with the Arbitrator typically providing continuous days for hearing, and a faster decision at the conclusion of the hearing.

Usually less formal.

Can be confidential.