Thursday, May 5, 2011

NEGOTIATION, MEDIATION, ARBITRATION AND OTHER FORMS OF ALTERNATIVE DISPUTE RESOLUTION FOR DIVORCE

Negotiation, mediation, arbitration, settlement conference are terms sometimes used interchangeably by the lay public. They actually are quite distinguished from each other and have a different interpretation. Here is a guide to these terms as generally accepted in the legal community.

In most jurisdictions, including Washington State, before a couple can have a trial before a judge in a divorce matter they are required to participate in Alternative Dispute Resolution. (ADR) There are many forms of ADR and the approach can be quite different. There is no right and wrong, rather it is more a matter of what is appropriate given the issues to be resolved, the personality of the parties, and even the preferences of the attorneys. I view all of these forms on a continuum of formality and aggressiveness. Here are some general explanation of terms:

Negotiation

Negotiation can be very informal as a husband and wife discussing issues at the kitchen table to a formal meeting with attorneys. There is no intermediary and the parties are working to find an acceptable resolution. Negotiation requires some mutual respect and trustworthiness and both parties should be negotiating in good faith. Obviously, negotiation is the most cost effective alternative.

Mediation

Neutral Mediator

There are several forms of mediation. Often in divorce, parties will seek the assistance of a mediator to help them resolve outstanding issues. A mediator is neutral and will not offer an opinion or legal advice. The mediator is trained in drawing parties out to find acceptable solutions. Once the parties motivating factors are discovered it is often possible to find a resolution that will meet both parties needs. For example, one party may be more interested in retirement assets and is willing to give in on sharing home equity. While the mediator is neutral, she may help tip the balance of power for the person in the weaker bargaining position or the less sophisticated party.

Directed Mediation

Sometimes as a case gets more contentious, the parties will work with a more directed mediator. I distinguish this type of mediation by calling it a settlement conference. The mediator is typically a retired judge of a senior family law attorney with years of experience. The mediator is more apt to offer opinion and attempt to persuade a party toward a particular resolution. The mediator's goal is to get the parties to an agreement and avoid further litigation which can be contentious and expensive.

The parties' attorneys will most likely write a brief or "settlement letter" and offer evidence to support her client's position. The mediator is not a judge but since she will be offering an opinion as to the best settlement posture, it is important that the mediator be well informed as to each of the parties' positions.

Settlement conferences are more costly than simple interest based mediation because there is often extensive preparation but is certainly less costly than a trial before a judge.

Arbitration

If the parties cannot reach a settlement through negotiation or mediation, they may opt for arbitration. In this format, the parties and or their attorneys present their best argument and evidence and the arbitrator makes a decision. Often the parties have agreed to make the decision binding, meaning the arbitrator's ruling will determine the final outcome and the parties agree to abide by the decision. There generally is no appeal from a binding arbitration ruling.

Sometimes if the parties were unable to come to terms through mediation, they will let the mediator become an arbitrator and make a ruling. There is some controversy behind this and the pros and cons for the particular case must be considered.

Binding arbitration results in a much faster decision than one would get at trial, the evidence is presented in a more informal manner and the parties do not have to wait several months for a trial date. Arbitration will generally cost less than a full court trial.

This is a very brief overview of the various forms of Alternative Dispute Resolution and is designed to merely distinguish some of the terms often used. The best approach should be determined in a discussion with legal counsel. I generally start with the most informal, less costly negotiation possible and proceed up the continuum all in the interest of giving my client the most control over the outcome.

I'm happy to offer a brief consultation for your consideration. I also offer a legal coaching program to help parties wishing to represent themselves.




1 comment:

Gary Javitch said...

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