Alternative to Trial

Most cases do not go to trial. Chances are your case will settle, either through discussions between you and the other party, or more likely your attorneys, or through other formal means. So, let’s assume you do not want to go to trial, and incur the time, expense, and stress a trial will ultimately cost. If so, then alternative dispute resolution (ADR) is likely the best option.

What options are available, and which option would be the best fit for your case? It depends upon the issues in your case, and the status of your case. Are we arguing over children, finances, or both? Is this the original divorce/paternity action, or a motion filed months or years after orders have been issued? Once you identify those issues we can better determine how to proceed. But the reality of the situation is that participating in ADR increases the likelihood of settlement, and in my experience even if the case does not settle in ADR the process is not a waste of time.

It is important to understand the different forms of ADR, and usually they fall into the following categories:

  1. Mediation – The goal is to assist parties in defining the issues involved in the case, communicate with the parties on those issues and possible resolutions, and help the parties to reach an agreement. Other than cost, there is no downside to mediation. Please take that with a grain of salt in that I have participated in hundreds of mediation cases, both as a mediator and as an attorney representing the party in mediation. I believe in the process because it requires the parties to meet, to communicate their positions, and allows the mediator to provide guidance to the parties in reaching a settlement. Often it is the mediator making suggestions the parties had not considered, resulting in settlement. Granted, cost can be an issue, but when compared with the time and expense of a trial, mediation is the better alternative. Additionally, mediation is confidential, and so if the parties do not reach an agreement, none of the information learned in mediation (with some rare exceptions) can be used later at trial.
  2. Domestic Conciliation – This is the next step above mediation, with the goal being to work with parties that have a history of being unable to communicate and reach agreements. The first tier is trying to improve communication skills and develop solutions to lessen conflict. This is not a confidential process, and while the first part of domestic conciliation is to help the parties reach an agreement as in mediation, if they do not reach an agreement then the domestic conciliator prepares a report to the Court prior to the parties proceeding to trial. The Court is not required to give the report any weight in making its decision, but that is something that can occur, especially if the domestic conciliator does a good job of identifying the issues and possible outcomes.
  3. Parenting Coordination – For parties that have a history of disagreement, the next stage is parenting coordination, with the goal being to assist parties in reaching an agreement to resolve disputes, and educating the parties regarding co-parenting and communication skills. But, if the parties are unable to reach an agreement, then the parenting coordinator is able to investigate the matter by speaking to third parties, and after completing an investigation, make recommendations to the Court regarding a resolution of the issues in question. Again, this is not a confidential process, and even though assisting the parties in reaching an agreement is the first step, if an agreement cannot be reached then the parenting coordinator issues a report similar to the domestic conciliator. The difference is the parenting coordinator makes recommendations to the Court as to how the issues in the case should be decided. Again, the Court is not required to follow the recommendation, but if the parenting coordinator provides convincing information to support the recommendation, then the Court can rely upon the recommendation at least in part in its ruling.
  4. Case Management – The last stop for high conflict cases with the goal being to assist parties by providing a procedure to facilitate negotiation and resolving issues concerning their children, co-parenting, and communication. If everything else has failed, and parties simply cannot cooperate in parenting their children, a case manager can be appointed to resolve disputes. Unlike the other forms of ADR, a case manager has considerable authority in resolving parenting disputes, even going as far as making recommendations to the Court regarding a change in custody, residency, or parenting time for the children. The Court still has the final say on such issues, but if the parties are to the point of participating in case management, and the case manager provides solid reasons for the suggested changes, Courts tend to follow those recommendations at least in part.
  5. Arbitration – Arbitration is the process where an arbitrator is appointed to resolve the issues in the case. The arbitrator takes the place of a Judge, and arbitration is similar to a court proceeding in that evidence is presented to the arbitrator and binding decisions are issued. Generally arbitration is used in cases dealing with financial issues, and much like mediation, cost is the main barrier. Additionally, it is not something family lawyers work with on a regular basis. But, if your case deals with complicated financial or legal issues, then arbitration may be a better (and quicker) option than waiting on a trial date. Lastly, arbitration can be included as the method for settling future disputes once a divorce is finalized, thereby saving the parties time and money if post-divorce issues need to be addressed.

The end result you should take from the above is this: Judges do a good job of reviewing cases and making decisions, but most will say the parties themselves are best suited to come to a decision. A Judge’s job is not to side with one party or the other, but to review the evidence and issue rulings. It is important to remember a Judge may not see the evidence the same way you do, and the resulting ruling could be different than expected. Also, negotiated settlements are generally best because while not perfect, they are the product of the parties coming to an agreement. That agreement can be built upon if there are future issues like parenting time and child support, and let’s face it: there will be those issues and we may as well start building the foundation now.

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