Negotiated agreements or mediated settlements can be more flexible and creative than those resolved through the court process. Judges are limited in their power. However, they may approve terms that they do not have the power to order. This includes an order transferring assets to a third party such as a child. In cases where the spouses are able to negotiate, there are a number of options for resolving disputed issues. Finalizing a divorce this way can minimize the feeling that someone lost or won and it usually take less time and money. It may also encourage modifications or future disputes to be resolved without litigation. We serve as alternative dispute resolution experts by serving as mediators, conciliators, arbitrators, and case evaluators. The cases can be resolved in full or in part by alternative dispute resolution. Issues can include:
- Child custody
- Visitation
- Parenting plans
- Parenting coordinator
- Alimony/maintenance /unallocated support payments
- Child support
- Children’s expenses
- Modifications of prior orders
- Enforcement of existing orders
- Health insurance
- Tax considerations
- Educational plans for the children
- College education
- Division of property/assets
- Division of debt
- Division of pension benefits and other retirement assets
- Abuse prevention
- Pet visitation
- Asset valuation
- Trusts and family money/inheritance
- Tangible personal property
- Attorney fees
Throughout our representation of our clients, we remain mindful of the cost of our work and balance that against the potential benefit we are seeking. Our goal is to get our clients the best deal possible at a reasonable cost. What is reasonable is measured against the value of the issue in dispute. For example, we would not advise going to trial over the division of assets with nominal financial value. We would encourage parties to resolve an issue like that on their own without incurring significant legal fees. Often, we remind clients that these items can be replaced for a fraction of the cost. On the other hand, if the process seems unfair and a negotiation imbalance needs to be rectified, we will certainly offer advice and step in when needed.
This concept is also present in disputes about parenting schedules when the cost of the dispute is not just limited to legal fees but could include harmful stress on the children. We are willing to fight to protect our client’s children. We encourage our clients to consider the effect of a fight on the children and balance that against the value of winning a particular issue.
Different forms of alternative dispute resolution include:
- Mediation – Facilitated meeting between the parties to come to an agreement.
- Arbitration – Parties agree to be bound by the decision of the third party.
- Conciliation – Like mediation but the neutral provides recommendations.
- Case Evaluation – An independent evaluation of the merits of the case and suggestions for resolution.
MEDIATION
Mediation offers clients who are willing to negotiate with their spouse/partner to create a fair settlement that the court will approve. Often the parties are meeting face-to-face but that does not have the be the case. The parties can be in separate rooms and the mediator shuttles back and forth. Sometimes counsel is present, sometimes they are guiding their clients by the sidelines and sometimes, they do not have attorneys. A mediator can provide legal information including basic legal principals and helps the parties understand the governing laws but mediators cannot provide legal advice. For that reason, we recommend that each party consult with independent counsel. Mediation can quickly identify the disputed issues and facilitate negotiated settlement without the upset and significant costs associated with court action.
In an amicable situation, one in which the clients are willing to listen and negotiate fairly, our mediation skills and experience serve clients well. Mediation is less confrontational and provides a safe setting for both parties to voice their concerns and interests with an experienced third party that can facilitate the negotiation, suggest options and keep the agreement within reasonable legal limits.
Both Attorney Lisa Graff and Attorney Amy Dawson are trained and experienced mediators. They each bring over 30 years of experience as family law attorneys and mediators to our role as knowledgeable, neutral, and thoughtful mediators. We begin the process by designing the process to meet the parties’ needs and goals. We work hard to ensure that the process is fair and balanced. We can be flexible to employ orthodox mediation or sidestep to include conciliation and evaluation of issues when the parties desire and recognize that we are amending our role to meet this request.
We enjoy serving clients in this neutral role. It is professionally and personally fulfilling and we enjoy helping and supporting families in solving their problems together. This may have the benefit of training the parties to solve future problems without the need for costly professional intervention.
Arbitration
Arbitration is another form of alternative dispute resolution (ADR) outside the courts. Essentially, it is private judging where the parties agree to be bound to the decision of the arbitrator. After the arbitrator reviews the case and makes a decision, it is legally binding for both sides. In extreme circumstances the decision can be subject to a court overturning the decision but this is rare. People choose this when they want to select a particular individual in lieu of the judge assigned and avoid the public nature of domestic relations cases. Arbitration is private and typically costs less than litigation. Although the parties need to pay the arbitrator for her time, the parties and the arbitrator can design a streamlined and efficient process appropriate for the particular parties in each case.
Arbitration can be either voluntary or mandatory and can be either binding or non-binding. Non-binding arbitration is similar to mediation. The difference is that the mediator will try to help the parties find a compromise without advising the parties. Whereas an arbitrator remains removed from the negotiations and is brought in to make a decision (“private judge”).
In some cases, the parties are able to resolve most issues but cannot resolve smaller, discrete issues in their cases. For example, parties could resolve all issues except the division of their house contents. Their separation agreement might read that the parties shall use their best reasonable efforts to resolve this issue employing certain principles. Absent any agreement within 30 days, they shall then submit the issue to binding arbitration and share the cost equally. This is an opportune time to use the arbitration process.
Attorney Graff is trained and certified by the American Academy of Matrimonial Lawyers as a family law arbitrator. Arbitration is private judging. She has been chosen through mutual agreement, by domestic relations attorneys representing parties in litigation, to arbitrate a number of issues within a domestic relations matter. Her style is to first help the parties resolve the issue by agreement without spending too much time, money, or energy on that process. If they cannot resolve the issue, she will proceed with arbitration. With Attorney Graff’s guidance, the parties fashion the process to be as formal or informal as they would like but always impartial and fair. Typically, the process does not have the level of formality the court uses and will be far more efficient. Once each party has the opportunity to present their case, Attorney Graff will make a decision. Her style is to apply the rules of evidence agreed to by the parties and then actively consider all of the admissible evidence before making a decision. Even if everyone does not like the outcome, both parties walk away feeling heard, understood, and believing that the process was fair.
CONCILIATION
Conciliation is an alternative dispute resolution (ADR) process where the parties agree to utilize the services of a neutral (conciliator) who meets with the parties and their attorneys (if they are represented) and give them advice about a fair resolution of the case. Conciliation differs from mediation in that the conciliator gives an opinion about a fair outcome whereas a mediator refrains from offering his or her own opinion.
Both Attorney Graff and Attorney Dawson are trained conciliators. They have been successful in helping parties and their lawyers find common ground. Their style is to create a process that is flexible and designed to ensure fairness and success; defined as a negotiated agreement. They typically meets with both parties and their lawyers together.
Occasionally, with the agreement of all participants, they will meet separately with the individuals if the parties involved think it will be more productive. Meeting separately may lower tension, improve communication, interpret disagreements on issues, enable parties to confidentially explore alternative solutions and bring about a negotiated settlement. Sometimes parties want to tell their story without the other side present and that can be helpful.
PARENTING COORDINATION
Parenting coordination is an alternative dispute resolution (ADR) process provided by mental health or legal professionals that assist high-conflict parents to implement their existing parenting plan and to make other decisions regarding their children in a child-focused and expeditious manner to minimize parental conflict, thereby reducing risk to children.
Parenting coordination is an intervention that moves the family out of the legal-adversarial system and into an ADR process to resolve on-going co-parenting conflict. The goals of the Parenting Coordinator (PC) are management of high conflict and to construct and monitor structures for communication for the parents such that communication is as minimal and manageable as possible to adequately co-parent.
Attorney Dawson has served as a PC and appreciates the opportunity to assist parents making decisions regarding their children and bringing them to a place that allows them to communicate effectively. During the process, Attorney Dawson will assess each case and determine the best method to proceed, whether it is communicating in person, with the parties together or separately, or communicating through email. Depending on the terms of the appointment or agreement of the parties, if the parties are unable to compromise on a decision, she will make the decision for the parties but Attorney Dawson finds that the best solution is the one the parties ultimately come to by agreement.
Case Evaluation
Parties and lawyers may engage us to evaluate a case, advise them in a neutral fashion about a likely outcome from the court and offer suggestions for fair resolutions of the disputed issue. We can either work as a neutral for both parties or we can help give a second opinion to a party and/or their attorney for a different perspective on the case.
As seasoned family law attorneys, each with over 30 years of experience, Attorney Graff and Attorney Dawson are contacted by attorneys and parties for advice and evaluation of their cases. They offers an objective, new look at the case and a creative approach to resolution usually recommending that the parties continue to work with existing counsel.