Family ADR

ADR is exceptionally useful in family matters to resolve disputes.  The parties themselves are the subject experts regarding the details of their family, far more than any professional introduced throughout the litigation process.

Family ADR

Litigation in family matters may occasionally be inescapable, but the vast majority of cases can be successfully and optimally resolved outside the courtroom, and to the greater satisfaction of the parties.  Pre-filing mediation is a growing area where consensus is reached prior to filing as the mechanism to both initiate and to expeditiously conclude the dissolution action while maintaining confidentiality and privacy.

Children are traumatized most profoundly, not by the actual dissolution or shifted reality, but by the accompanying conflict surrounding the dissolution or custody matter.  ADR, by its very nature, is often able to minimize, or circumvent the hostility between parties, detoxifying the language and through its structure assisting the parties to avoid digressing down non-productive avenues.  Most often, the parties will continue to have some degree of an ongoing relationship following the case’s resolution and are best served by preserving civility.  ADR seeks to minimize the scorched-earth approach often engaged in during emotionally wrought family court litigation.

To be sure, there is a huge burden by the financial costs inherent in litigating family cases.  However, the emotional and collateral costs that quickly accumulate far surpass the straightforward dollar signs.

Consider this:  In the adversarial process, that is litigation, one side seeks to “win” while employing all of the skills learned in law school to achieve that end for their respective singular client.  For one side to “win” one must necessarily “lose.”  Within family dynamics, “losing” is never a broader “winning” strategy.  The adversarial process of litigation amplifies existing tensions, provokes heated emotions and exacerbates parties’ fears.  Each volley must be answered by the other party, in a reflexive tit-for-tat, equivalent retaliation.  Litigated family cases are littered with avoidable tales of destruction and far-reaching heartache.  ADR methods can achieve resolution while maintaining party dignity.

Participation in all ADR services can be engaged as Pro Se (unrepresented) or accompanied with respective counsel.  The mediator/facilitator does not provide legal advice or represent either or both parties.

Family Dispute Resolution Methods Include:

Custody Evaluations ^

A custody evaluation, sometimes referred to as a parenting assessment, is a neutral forensic evaluation providing reasoned recommendations for a custody arrangement best suited to and serving the interests of the children in a family. The evaluation is often, but not always, completed in conjunction with parental psychological evaluations. The selected evaluator is court appointed prior to beginning the process and the evaluation is completed pursuant to Minnesota Statute § 518.167.

Every family is unique, has unique strengths and face unique challenges. Interviews of the parents, the children, school, medical and other professionals and relevant family, and friends are conducted. The external information is what makes the custody evaluation a forensic tool.  The completed evaluation serves to facilitate a settlement or as an expert report for litigation.

Minnesota Statute § 518.17, subdivision 1, outlines the best interest factors that the court must consider in determining the appropriate custody arrangement. The custody evaluation is organized to address each factor. The Association of Family and Conciliation Courts (AFCC) and the National Council of Juvenile and Family Court Judges (NCJFC) have established custody evaluation best practices.

Ms. Eyal completed custody evaluation training at Hamline University School of Law & AFCC.

Mediation ^

Mediation is a client-centered approach of party self-determination, employing an interest-based approach. Clients have their own sense of what is right, what is fair, and what will work for them; their own system of fairness.  The measure of a successful mediated resolution is one that is “do-able and durable.”

Mediation is a facilitative method, sometimes referred to as transformational, and  is most frequent ADR method.  The mediator works, collaboratively with the parties to reach an acceptable resolution to issues and concerns while providing unique focus for personal interests and needs.  The issues are explored respectfully, concerns are validated and the mediator assists in analyzing and exploring options and opportunities while maintaining a focused, respectful environment and avoiding non-productive divergences or digressions.  This process is distinct from the litigation approach of positional bargaining.  The mediator lacks authority to impose terms or resolutions, but is trained in helping the participants to jointly make decisions in resolving their own dispute.

The mutually negotiated agreement is then memorialized into a legally binding document.

Comparison of the Mediation and Arbitration Models ^

Mediation (Facilitative) Arbitration (Adjudicative)
Guided negotiation. Adjudicated process.
Outcome is determined by the parties. Outcome is determined by the arbitrator.
Mediator lacks authority to impose a resolution. Arbitrator has the authority to impose a resolution; a legally binding decision.
Information is informally exchanged and focused. Discovery may be required.
Mediator focuses the parties to understand the issues from the other party’s perspective. An award/decision is rendered by the Arbitrator who has all necessary facts.
Parties are able to engage in innovative solutions to reach agreement. Parties present their case, provide testimony and evidence.
Informal process with parties as active participants. A more formal process and attorneys largely control party participation.
Parties meet jointly and individually with their counsel. The format is more similar to an evidentiary hearing with no confidential communication with the arbitrator.
Outcome based on parties’ interests. Outcome based on testimony, facts, evidence and letter of the law.
A mutually acceptable resolution is reached, relationships are often preserved. Resolution follows the win/lose model and relationships are often lost.
Lower costs. Similar or more expensive than mediation but less expensive than traditional litigation.
Outcome remains private and confidential. Details are private but the decisions are publicly available.

SENE (Social Early Neutral Evaluation) ^

The Social Early Neutral Evaluation (SENE) is a rapid evaluative process that is utilized after a family court case has been initiated but early in the process, often prior to formal Discovery.  The SENE process is always a two-person team, a male and female evaluator.

After the parties offer an overview of the case, relevant issues and appropriate information has been provided & reviewed, the evaluators provide a straightforward evaluation of the parties’ case, primary issues of dispute, strengths and weaknesses of the parties’ positions and recommendations.  This is then followed by mediating the issues to reach a resolution.

Because the SENE process is engaged early in the case, the animus between the parties is somewhat contained, costs can be significantly reduced and trial avoided altogether.  Recommendations, discussions and all communications in exploring settlement throughout the SENE process are confidential and will not be shared with the Court.

When the parties reach an agreement the ENE team generally reports the content of the agreement to the Court, entering the agreement into the record.  The team will also report the content of partial agreements or the absence of agreement.

FENE (Financial Early Neutral Evaluation) ^

A Financial Early Neutral Evaluation (FENE) is focused solely on matters of finance within the dissolution, although there are overlapping issues of child support contingent on parenting time.  The FENE process follows the same construct as the SENE process, described above.  Financial records are collected and provided to the evaluator.  The more complete and timely the records the quicker resolution can be reached.

Parenting Consultant ^

Whether initial custody was contentious or cooperative, determined by agreement or through a custody trial, no custody order can comprehensively anticipate all situations that occur throughout the normal course of childhood.  There are issues around scheduling, medical care, schooling, and residency, parenting time, holidays and vacations, extra-curricular activities and a plethora of other issues that arise.  These issues can be prevalent in a high-conflict case or topical and episodic in a traditional case.  The relationship between the parties may also shift over the course of time.

A Parenting Consultant (PC) employs both the Facilitation and Arbitration styles as a hybrid.  Initially, though facilitating communication between the parties, the PC will attempt to facilitate (similar to mediation without confidentiality) a mutually agreed upon resolution to the disagreement.  In the absence of an agreement the PC will render a binding decision.  The decisions are appealable.

The Court is unable to Order the use of a Parenting Consultant, but upon agreement of the parties an Order will be issued appointing the PC and outlining their role.

This dispute resolution offers extreme advantages over engaging the court to address smaller everyday decisions that remain important for the family.  As a neutral, the PC can speak with collateral sources, such as teachers and doctors, and request information that they deem necessary.  An attorney is unnecessary to employ this ADR method to its fullest, avoids the legal fees associated with approaching the court for relief and is far quicker.  The PC has a working knowledge of the parties themselves and the family, more broadly.  This dispute resolution can be used as needed.

Moderated Settlement Conference (MSC)/Non-Binding Advisory Opinion ^

A Moderated Settlement Conference/Non-Binding Advisory Opinions is a blended facilitative, evaluative and non-adjudicative process intended to resolve outstanding issues for late-stage cases where Discovery has been completed, where other ADR methods have proved unsuccessful for all issues and trial appears imminent.  The parties can define the scope of the moderator’s role based on the case facts and details.

The conference is generally held at the Family Justice Center and is conducted with the parties’ presentations to the moderator, review of requested information/documentation and the information contained in the court file.  The moderator provides an opinion on the case and likely outcomes.  The moderator will then work with the parties to reach a mediated agreement on some or all of the remaining issues.

If full or partial agreements are reached, such agreements are generally read into the record before a judicial officer that day.  Agreements are legally binding.

If the case is not fully resolved, the agreements are read into the record, the moderator identifies the outstanding issues or matters that merit further examination.

Parenting Time Expeditor (PTE) ^

A Parenting Time Expeditor (PTE) is a neutral third party who utilizes the Mediation/Arbitration approach to specifically address parenting time disputes, on either a one-time or on an ongoing basis.  Issues include interference or denial of parenting time and holidays and school vacations.  The PTE accomplishes this through enforcing, interpreting or clarifying the existing parenting time order and addressing circumstances not specifically contemplated by the existing Order.  The PTE determines whether a parenting time order has been violated, awarding compensatory parenting time, as appropriate.

The PTE will attempt to mediate a mutually agreed upon resolution and discuss possibilities with the parties.  Should an agreement not be achieved, the PTE will make a decision that is in line with the existing parenting time order.

This method of ADR addresses a very narrowly focused dispute in a substantive manner without having to directly involve the court and avoiding associated legal fees.  A Parenting Time Expeditor can be court-ordered.

Parenting Plan (Development) ^

The use of Parenting Plans rather than traditional custody orders has garnered favor among courts and parents alike.  A primary reason for the appeal is that, rather than utilizing custody designations of physical and legal custody labels, it establishes what the parenting time schedule looks like, who makes what decisions and how, and addresses methods to be used when facing a disagreement.  Many litigated family court custody cases center around the custody labels, the emotions engendered by them and the fear of being marginalized as a parent.  A Parenting Plan directs the parent’s efforts in a more child-focused direction.

A parenting plan allows parents to jointly describe the co-parenting construct with specificity, addressing details and issues that a court would not address.  Often it incorporates the mutual parenting philosophies of the parents as a foundation.

If modification becomes necessary at a future date, it is far easier for parents to modify a parenting plan rather than a formal custody order.  A parenting plan also minimizes honest misunderstanding by having contemplated issues of possible future discord.

Parents want what is best for the children.  In the process of preparing the plan, a facilitator can guide the parents through situations, scenarios, stating points of agreement and working through frequent issues that arise.  Both parents are provided an assurance of having addressed and incorporated things into the parenting plan that are really important to them.  Expectations of both parties are addressed in the plan.  Methods to accomplish modifications can be agreed to within the plan itself. Details that outline how the parents will share daily tasks associated with the upbringing of the child are delineated.

Consideration is given to certain more nuanced parenting topics such as, outlining ongoing contact with each parent, camp participation, cell phones, ear piercing, social media, travel, birthdays, standards of conduct expected from both parents, relationship with extended family, funerals, birthdays, Mother/Father’s Day, manner of child transitions, suitcases and many more.

Divorce Mentoring ^

Divorce coaching or “mentoring” is a general term not governed by statute and defined individually by practitioners.  As envisioned here, we focus on specific goals and topics as outlined in a client agreement and it is confidential.  This could encompass an overview of the divorce process and available services, general advice and education, outlining possible considerations in reaching a decision of whether or not to pursue the divorce path, connections to mental health, financial and legal professionals best suited in reflection of your unique goals/concerns, financial considerations and methods to minimize the negative impact to your children.  The area of concentration is tailored to fit your individual needs.  We work in collaboration with your legal team.

Neutral Fact Finding ^

Neutral Fact Finding is a process in which a neutral third party examines and analyzes narrowly defined factual disputes followed by the issuance of subsequent findings.  The parties indicate the scope of the engagement and, unless specifically agreed to beforehand, the findings are advisory; not legally binding.

There may be instances where a subject expert, uniquely qualified to make a determination or recommendation in the case will necessitate a neutral in that subject area to fulfill a specialized and narrowly defined function.

This process is particularly effective when isolated information and scrutiny of a specific issue is sought, while avoiding the full Discovery process.

Design Your Own ^

The parties and the unique details of a case may make an entirely tailored process desirable.  In such instances, a unique ADR process is articulated and detailed in a written agreement.  The tailored process will be followed.  Agreements reached through such methodology will include an explanation of the process in the Informational Statement filed with the court.

Online Dispute Resolution ^

As technology has advanced and the geography and breadth of daily lives and work schedules have also expanded, the two can converge for optimal ease and effective resolution.

Through Skype and other video-conferencing tools, the electronic exchange of documents, conflicts can be resolved effectively, even when proximity cannot be achieved by both parties.

Any of the methods of ADR discussed previously can be incorporated in an ODR format.

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