Other Dispute Resolution Options
There are many types of conflict and dispute resolution processes available to people who wish to resolve their disputes. They each have their specific characteristics, strengths, and weaknesses. While we believe that mediation is often the best option, it is not ideal for everyone.
Originally produced by MCFM for display in the Norfolk County Probate & Family Court, the following video describes the benefits of settling through alternative dispute resolution and the different ADR options that are available.
Below we have provided an overview of each option, starting with mediation:
MEDIATION:
Conflict resolution mediation is intended to avoid litigation. In litigation, the parties are essentially at war. In the family context, this invariably causes great stress and great harm when children are involved.
Couples like conflict resolution mediation because it is simple. Generally, lawyers are not in the sessions, although they are often consulted with at times during the process, and can review written agreements and other documents resulting from the mediated conflict resolution process.
Conflict resolution mediation (even with reviewing attorneys) is generally much less costly than other methods. It is private, and client directed. The mediator is a resource to the clients that assists that in coming to fair and rational decisions about the terms that they choose to resolve their conflict.
Aside from mediation, there are other Alternative Dispute Resolution methods that may be considered, such as Collaborative Practice (also known as Collaborative Law), Case Evaluation, and Arbitration. Each method has its unique characteristics and usefulness. Litigation dispute resolution can be achieved through conflict resolution mediation; however, litigation is available for those who need or desire it.
LITIGATION:
Most people prefer not to litigate family and divorce issues. This is because litigation is a stressful and antagonistic type of dispute resolution services, which can cause great harm to the parties and their children. Memories of the litigation will persist for many years, affecting the children’s lives and their own marriages.
Unlike dispute resolution services offered by conflict resolution mediators, litigation is very public. The case record is there for the children and grandchildren (and neighbors) to see. There might be unwanted media attention. The parties have little control over the outcome. Factors like who the judge is, his or her preference for one or other of the parties (or for one of the advocates), and the skills of the litigators will all contribute to the outcome. The result of the case generally cannot be predicted. Mediation puts the results of the conflict in the parties’ own control.
Litigation is very financially costly. It generally ends up costing 2 or 3 times what is estimated, expected, or hoped for. Resolving family matters through litigation generally takes a long time. There are often costly delays, and sometimes it takes 2 or 3 years to get a decision.
While litigation has all the downsides described above, it sometimes is needed.
Reasons to litigate can include the desire of parties to do battle with or punish each other. Or there might be a lack of clarity in the law pertaining to an important aspect of the dispute. Sometimes the parties are simply unable to communicate or work directly with one another to resolve their problems and cannot meet face-to-face in mediation or take advantage of other types of dispute resolution services.
COLLABORATIVE PRACTICE / COLLABORATIVE LAW:
Family Mediation has some differences and some similarities to Collaborative Practice (also known as Collaborative Law).In Family Mediation, one mediator (a neutral) works with the two parties. The mediator does not give legal advice to either party, and does not the parties (or either of them) if the mediator is a lawyer.Mediators often give legal information to the parties, and recommend that they each consult with a reviewing attorney during the mediation process and to review the final agreement resulting from the mediation.
In Collaborative Practice, each party is represented by a collaboratively trained attorney who is that party’s advocate, but who is also trained in conflict resolution.Like mediation, it involves a series of face-to-face meetings. Sometimes a communications facilitator or process coach may be present at the meetings.
An important feature of Collaborative Practice is that the parties sign an agreement not to litigate using their collaborative attorneys (or any other attorneys from their firms). This provides collaborative clients with a in which the parties have a good chance of reaching strong settlements without threat of litigation.
Collaborative Practices tends to be used in very complex cases and/or where the presence of client advocate attorneys is needed or desired throughout the process. It is generally more expensive than mediation, and less expensive than litigation.
CASE EVALUATION:
This is a relatively new method that can be used by couples who are coming to impasse on issues in their mediation or collaborative practice case. An issue (or several) is submitted with a statement of facts to a case evaluator, who is usually a retired judge, but sometimes a very experienced divorce lawyer. The evaluator gives the clients a read on how he or she believes this issue would be addressed by the Court. The couple then returns to mediation (or collaborative practice) to try to finish up their agreements.
ARBITRATION:
Arbitration is an out-of-court method, which simulates a court process. There is an arbitrator, who functions like a judge.The parties present their cases and evidence. Sometimes the rules of evidence are formal and similar to those of a court. Sometimes evidence is admitted on a less formal basis.The parties may choose to have the arbitrator's ruling binding or non-binding. If binding, it will function as a court order, and may be submitted to court to obtain an official court order. The arbitrator, not the parties, controls the outcome.
Divorce Arbitration can resolve divorce issues, but cannot resolve child support and other issues relating to the children. That is because the probate courts also retain jurisdiction over the rights of unemancipated children -- their parents cannot contract away their rights.
Issues of spousal support may or may not be subject to binding arbitration depending on the facts and circumstances, the nature of any existing court order, and the party's separation agreement if already approved and incorporated by the court.
