It is becoming very common for our clients to ask about alternative dispute resolution (ADR).  In fact, in many judicial districts in North Carolina, the district court has adopted rules for mandated ADR in family law cases.  The goal of the Administrative Office of the Courts is to have statewide mandatory custody mediation and mandatory ADR for the resolution of financial issues related to separation and divorce.  Even after you file a lawsuit, statistics show that 80 to 90 percent of court cases settle before trial. Unfortunately, many of these settlements occur only after the parties have expended significant amounts of money and time in the process. Many of these risks of losing time and money can be avoided if you are able to negotiate a solution directly and retain control over the outcome.  

There are several forms of ADR which may facilitate the resolution of your case before or after a lawsuit has been filed.  Depending on what sorts of relief you are seeking, they may include mediation, reference, binding arbitration, judicial settlement conference and early neutral evaluation. A new approach to out of court resolution of family law cases is "collaborative law," which is a process designed to completely avoid the litigation process.   With the exception of collaborative law, in each of these methods, the opposing parties seek assistance from a neutral third party to resolve their disputes.  In collaborative law, the parties work with their respective lawyers together to cooperatively reach a mutually satisfactory resolution of all marital issues. There is general agreement about how each method of ADR works, but there are several different approaches to consider.  ADR can provide you with a less costly and more expeditious resolution of your disputed issues.  

The basis for all dispute resolution is open and complete disclosure, financial and otherwise.  Formal discovery, the process of obtaining information incident to litigation, takes a lot of time and can be quite costly.  For the purposes of ADR you will each be required to disclose anything that would have a bearing on the issues. Typically, assets of significant value are appraised and information is gathered, analyzed, and discussed until both of you have a clear understanding of all options and can make informed decisions on each issue.

  Why is ADR encouraged?

Alternative dispute resolution can save financial and emotional costs.  Not only is litigation expensive and time-consuming, but it can be very stressful. You may feel that an important part of your life is on hold while you are waiting for a trial date, wondering and worrying about the outcome. If you have to deal with each other in the future, using an adversary process like litigation risks polarizing and embittering your relationship. The emotional wounds from fighting may never heal, and these wounds can complicate your future dealings and make it impossible for you to have a satisfactory relationship.

Going to court can make people anxious because they feel they face hard to understand procedures, unfamiliar legal language and win/lose scenarios. On the other hand, you have more control over the format if you use ADR.  For example, mediation is a fairly informal process, conducted in regular English and the solution must be agreed to by both of you.  Similarly there is no resolution without agreement in a CFL case and the parties are actively and directly involved in each step of the process including information gathering, evaluation and negotiation.

  What is arbitration?

Matrimonial arbitration can be used to resolve multiple or single family law issues which the parties agree by contract to submit to the arbitration process.  Some parties are bound by the terms of prior contracts, such as premarital agreements, to submit their marital disputes to arbitration.  Others may choose to do so, even after litigation is pending, either as an alternative to mandatory alternative dispute resolution forms required in their judicial district or simply because it is a format which appeals to them. 

Arbitration is a distinct form of ADR.  The arbitration process begins with an arbitration agreement which is a contract governing the terms and process of the arbitration itself.  While the purpose of mediation is to employ a neutral party to facilitate the parties reaching an agreement about a contested issue, and collaboration requires a commitment by the parties and their lawyers to cooperatively reach an out of court settlement, arbitration is a process in which the parties agree to present one or more disputed issues to a trained, unbiased third party who hears the evidence, applies the law and renders a decision.  Each party has a right to an attorney and the attorneys and the parties agree on the ground rules for the hearing, including, for example, the presentation of evidence, the scope of testimony, the scheduling of hearings and the allocation of the expenses of the arbitration.

Benefits of arbitration  

The benefits of arbitration are many.  The process is confidential and private--unless it is provided for, no record is kept of the proceedings.  Each party has some control over the process in that they select their decision maker by mutual agreement.   By contract, the parties can determine how evidence will be presented, what rules of court will apply, what issues will be decided and whether or not the arbitrator's decision will be subject to judicial review or appeal.  

The parties have a lot of flexibility.  Instead of judicial assignment where the decision-maker is assigned randomly by the clerk of court, one can select the arbitrator(s), the site where the arbitration will take place and the schedule, all of which allow for flexibility and maximum convenience. 

Going through the court system is time-consuming, inconvenient and expensive.  Arbitration is an expedient process which avoids courtroom and calendar delays and can reduce legal fees.  Finally, the arbitrator's decision, unless explicitly made subject to appellate review, is final and binding on the parties.

  What is mediation?  

Mediation is a process in which two or more people involved in a dispute come together voluntarily to try to develop a solution to their problem with the help of a neutral third person (or persons), called the mediator. Unlike a judge or an arbitrator, the mediator does not take sides or make decisions.  The mediator, usually trained in conflict resolution, is there to help the disputants evaluate their goals and options in order to formulate their own solution.  

To achieve the fairest results possible by having you both take an active part in your divorce and turning what could be a battle for control into a search for mutually beneficial solutions.

  How does mediation work?  

Mediation can take place over a series of sessions but more often than not is scheduled for a continuous amount of time to keep the negotiations going.  Sessions are generally held in the privacy of the mediator's office or an attorney's office and begin with all involved signing an agreement that the negotiations will be kept confidential.

At the end of a successful mediation, the mediator will prepare a Memorandum or writing expressing the agreements of the parties, at least on the issues which were resolved.  Any formal agreement will be drafted by a lawyer, yours or your spouse's.

  What should you expect from the Mediator?  

The mediator's role is to move the parties beyond personality clashes and historic grievances.  Only then can the mediator help you improve communication so any future dealings can take place without repeating the difficulties of the past. Mediation is a useful tool because it adds a new dimension to the negotiations.  

Because the mediator's purpose is to help guide you to find solutions that you can both agree to, he/she does not have the power to decide your case or in any other way act as a judge nor does he/she have a fixed result in mind to urge you toward. The mediator is there to facilitate discussion and will attempt to help you express yourself as fully as possible but will not advocate one side over the other.  

The mediator may offer suggestions on possible resolutions or help inform you about the law and the legal consequences of the decisions you make. The mediator will not, however, give you legal advice.   Because legal advice should only come from your attorney, it is important to have independent counsel to advise you about resolving your dispute. 

  Benefits of Mediation  

Mediators can increase the likelihood of a negotiated settlement by bringing the skills, creativity, and influence of trained, impartial third parties to bear on the problem. Perhaps more importantly, frequently mediation can save time and money.  

Mediation keeps your options open and reduces issues of conflict.  Although most who begin mediation have a successful conclusion, some do not. If mediation doesn't work, you can still sue and go to court or engage in arbitration. Because mediation is totally voluntary, if an impasse occurs, one can still  litigate or undertake another dispute resolution process.  But even when mediation is not completely successful, you may resolve some of areas of dispute, reducing the number of issues left to be determined.

Studies show that mediation can increase compliance.  Many people resent decisions imposed by others with power -legal or not. It is important to consider that court orders are not self-enforcing which means that if one party fails to comply with the terms of a court order, the other party must incur the costs of requesting a court to assist in enforcement.  The goal of mediation is to reach an agreement that everyone can live with after each of you has had a direct role in negotiating the terms along with a chance to clear the air.  Since agreements reached in mediation were brokered and agreed to by both of you, you tend to have both a sense of legal obligation towards the agreements and a psychological sense of commitment because they are your own agreements. It is possible that you will find that you are both more likely to follow through in good faith because the agreements were reached voluntarily.

  What is collaborative family law ("CFL")?