We are talking about the use of alternative dispute resolution in contested divorces. Minnesota has a fairly long history of creative approaches to managing this kind of conflict. The goal is always to minimize the pain of tense negotiations; ADR may also speed up the process and reduce the overall cost of the divorce.
In our last post, we talked about mediation. The couple sits down with a neutral third party, and that third party, the mediator, works to find common ground. If one party wishes to appeal a trial court’s decision, mediation may be the better, less expensive option.
Arbitration is another tool, one that differs in important ways from mediation. First, the arbitrator hears both sides of the case and then makes a decision for the couple. The couple may choose to have the arbitration binding — the decision is final, and the couple must abide by it — or non-binding. Couples have found arbitration more useful than mediation in marital property valuation disagreements.
Many Minnesota counties have Early Neutral Evaluation programs in place, too. ENE is more similar to mediation than it is to arbitration in a few ways.
First, rather than meeting with a mediator, the couple and their attorneys meet with one or more evaluators. The parties present their arguments, and, rather than working to find common ground, the evaluator takes the information and comes to his or her own conclusion about the merits of each side’s position. If there are two or more evaluators, they meet apart from the parties to discuss what they have heard. They may also look into the couple’s finances and home life to help with the decision.
The evaluators use their training and their experience to determine which argument would prevail in court. The parties then work out the details of a settlement. There may be more than one session, but more than 75 percent of the families who go through ENE leave the first session with some kind of an agreement. If the couple cannot agree on a matter, the ENE works with the court, ensuring that the judge is familiar with the couple’s situation.
ADR is not for everyone, but couples who are having a hard time making decisions about custody, visitation, maintenance and property division may find any one of these methods helpful.