Family Law ADR: Alternatives to the Courtroom
October 13, 2022 | Jason C. Brown
To the surprise (and relief) of many, only a small portion of the family cases we handle wind up in trial. The vast majority of the time our attorneys are able to negotiate a favorable settlement. Our firm has a reputation for success in the courtroom. Still, we consider trial as a last resort.
Why is it important to focus on settlement efforts before trial?
We find that the litigants will save substantial time and money if matters are resolved sooner than later. We also find that the parties are far more likely to abide by the terms of the agreement if they have created it. Most importantly, by working toward settlement our clients maintain control over the outcome, rather than handing that authority over to a judge.
There are a number of alternative dispute resolution (ADR) models available to family court litigants.
Mediation is a common process in which the parties and lawyers hire a neutral to facilitate a conversation about the issues. The mediator is there to offer suggestions on how to resolve matters but takes no position concerning the issues. Most mediators are experienced family law attorneys who have shifted their practice to ADR after many years in the courtroom.
Evaluative mediation involves the retention of a neutral but gives that individual the authority to offer an opinion concerning a dispute. Evaluative mediation is by far the most common ADR process invoked by family court litigants. The opinion of the mediator is confidential and non-binding, but often helps break an impasse.
Early neutral evaluation is a more structured form of evaluative mediation. The evaluator’s role involves gathering the facts and offering an opinion, but then shifting gears to facilitate settlement talks.
An early neutral evaluation can involve the child-related issues (such as custody or parenting time) or financial issues (such as property valuation and division or spousal maintenance). The child-related process is called a “social early neutral evaluation” (or SENE). A “financial early neutral evaluation” (FENE) involves a discussion of the property valuation and division and spousal maintenance.
Binding arbitration involves the retention of a professional decisionmaker. The parties hire a neutral to listen to the facts and issue a binding opinion. The idea is to save time and money. Arbitration in family court often involves disputes surrounding the division of household goods and furnishings, or disagreements that arise concerning the sale of real estate. Most of the time, parties agree that the arbitrator’s decision is not appealable to the court.
Parenting consultants are often hired by the parties to resolve ongoing disputes surrounding a child, including schedules, school choice, communication, or medical issues. The consultant is retained in place of a judge. They are given the authority to make decisions. Those decisions are appealable to the court, but rarely overturned.
The best family lawyers know how to balance advocacy and common sense. Not every case needs to go to trial. While our lawyers routinely try matters, we work even harder to keep our clients in control of the outcome, saving time and money in the process.