Alternative Dispute Resolution

Posted by & filed under General Family Law.

For the most part, parties involved in a divorce, custody, or parenting time dispute are required to attempt Alternative Dispute Resolution (ADR) prior to bringing their issue(s) to court.   Because Rule 114 of the Minnesota General Rules of Practice allows parties to “create an ADR process” by agreement, in theory the possibilities are literally endless.  In practice, however, most parties in Minnesota use one of two main, well-established processes: mediation and early neutral evaluation.

Mediation is the process by which both parties sit down with a neutral third party and attempt to reach resolution through negotiation.  It is considered a “facilitative” process because, as Rule 114 points out, mediation is  “[a] forum in which a neutral third party facilitates communication between parties to promote settlement.”  While, by rule, “[a] mediator may not impose his or her own judgment on the issues for that of the parties,” different mediators have different styles.  Some mediators are strongly facilitative and work only to improve communication between the parties without imposing judgment on the parties’ positions.  Other mediators are strongly evaluative and provide an opinion on the parties’ positions in an effort to move the parties closer to resolution. Many mediators fall somewhere in between.

Social Early Neutral Evaluation (SENE) is a process by which the parties sit down with two evaluators, one male and one female, for a structured conversation regarding custody and/or parenting time issues.  The evaluators generally begin by having a conversation with the petitioner (the person who started the case) and then the respondent.  Both parties are present in the room when the evaluators hear from each party, and are encouraged to listen, but not to interrupt or interject. The evaluators ask questions, gather information, and ensure that each party has had an equal chance to be heard.  After the allotted period of time, the evaluators leave to discuss the issues and return with a recommendation, which they present to the parties.

Financial Early Neutral Evaluation (FENE) deals with financial issues such as property division or spousal maintenance.  Often there is only one evaluator in this process and the discussion may be less structured than it is in a SENE.  Overall, however, the process is the same.  The parties take turns speaking with the evaluator about the issues.  The evaluator gathers the information he or she needs to make an informed recommendation regarding what he or she believes a court may do in a similar situation.  The recommendation is then used to focus the parties’ negotiations.

While mediation and ENE are the most common types of ADR processes in Minnesota family law cases, there are a few other commonly used processes worth mentioning.

Arbitration allows each party to present his or her case to the neutral arbitrator who acts as a private judge.  Unless the parties agree that the arbitration will be non-binding, the arbitrator’s decision will be binding upon the parties, although it can be appealed.

Mediation – Arbitration (Med-Arb) is a hybrid process by which the parties attempt to mediate the dispute, but if they are unable to resolve the issues through the facilitative process, the neutral will switch roles from mediator to arbitrator and will provide an evaluative decision on the issues.

Moderated Settlement Conferences most commonly occur in the middle or towards the end of the divorce process.  One neutral facilitates negotiations between the parties.  The negotiation takes place at the courthouse at a time when the judge is available to take the bench and allow the parties to read an agreement into the record or, in some cases, to offer the parties feedback during their negotiations.

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