Other Forms of Alternative Dispute Resolution

[Ed: Originally published on Facebook.]

Mediation is the most common, but certainly not the only, form of “alternative dispute resolution”. Let’s take a brief look at a couple of others.

“Arbitration” is similar to an actual trial. The arbitrator(s) (there can be more than one) will make a decision, just like a judge will. The parties present evidence, just like in a trial, although typically the rules of evidence are far more relaxed in arbitration. There is a huge potential pitfall, however, in that there is generally no effective avenue of appeal if you don’t like the result. Usually arbitration is a bad idea in divorce cases, although a limited arbitration to divide personal property might be a good, cost-effective way of getting that issue resolved if the parties just can’t seem to agree among themselves.

“Judicially-hosted settlement conferences” are very similar to mediation. Typically the parties are not required to settle, just like in mediation. The parties also generally spend most of the time in caucus, also like in mediation. Instead of a mediator, though, the neutral is typically a senior judge or a retired judge – someone who can bring years of experience on the bench, deciding cases just like yours, to the table. This can be an invaluable experience, as you will hear, directly from someone who thinks and acts a lot like the judge in your case, what that judge would do in your case. Actual results in the case could vary, of course, but knowing what one judge would do can have a profound impact on one side’s willingness to consider alternatives that don’t cede control of the case over to another judge.

An Overview of the Mediation Process

[Ed: Originally published on Facebook.]

The mediation process might vary a little bit based on your jurisdiction, but usually the process is more-or-less the same.

Often a mediation will start with a so-called “joint session”, which will involve all the parties around the same table. The mediator runs this part of the mediation, and usually takes some time to explain some ground rules. Often there is a document everyone will sign by which they agree the rules of mediation have been explained to them and that they will attempt to mediate in good faith, even though they are not bound to settle their case. The joint session then typically continues with opening statements by both sides, usually starting with the plaintiff (whether that’s the husband or the wife).

After the joint session, the parties are typically split into separate rooms for “caucus” with the mediator. The key thing to keep in mind is that, with a few limited exceptions (to report something like child abuse or a threat to cause harm), everything said in caucus is confidential, and the mediator will not reveal what is said to the other side unless given express permission to do so. This is important because it allows the parties to be more open with the mediator, sharing weaknesses they perceive in their cases without worrying that the mediator will run and tell the other side. That way, the mediator can more effectively “reality test” with both parties, to try and get them to move closer to a settlement.

Often the mediator will skip the joint session entirely. This is typical where there are allegations of spousal abuse, or where there have been attempts to negotiate before mediation (and thus the mediator is not starting from scratch). Don’t be too troubled by which party the mediator starts with or why, or how much time the mediator is spending with one party versus the other.

Preparing for Mediation

[Ed: Originally published on Facebook.]

Preparing for mediation is something you should not rush through. That said, often the best way to prepare for mediation is usually to be as prepared as you can for trial.

Think through – and write down – what you think your best day in court probably looks like. Be at least a little realistic; a “total victory” is unlikely under pretty much any circumstances. Then go through and write out various scenarios that are less in your favor, and ask yourself seriously if you could live with that result. Keep iterating through this process until you find where you are just too uncomfortable with the result – that is probably your “bottom line”.

Now, try and put yourself in your spouse’s shoes. What does “victory” look like for him? What aspects of that “victory” do you think are most important to him? What aspects do you think are least important to him?

Don’t try to do all of this in your head. I’m a big believer in spreadsheets, especially for property divisions and trying to figure out what long-term support obligations look like. When I’m looking at child custody arrangements, I like to print out school calendars and try to figure out where the conflicts might come up. And I can’t remember the last time I went to a mediation without my laptop available, for modeling and calculations and such.

Why Bother with Mediation?

[Ed: Originally published on Facebook.]

Maybe you think your spouse is too hard-headed to make mediation worth your while. You may be willing to give in to just about every demand he has, just to get the case over and done with – but you know he still won’t settle. So why bother?

First and foremost, of course, you could be wrong. Your lawyer almost certainly has a story or a memory about a case he was sure wouldn’t settle, but then it did. Sometimes all the other side needs is a chance to vent and feel he has “been heard”, and maybe mediation will give him that outlet. Be open-minded about the process; you might surprise yourself.

Second, you can still learn a lot even when the case doesn’t settle. You can learn what is important to your spouse and what is not. That can be valuable information when you’re trying to prepare for trial. You may even be able to narrow some of the issues – if you agree on child support (for example) and property division, but not on child custody, then you at least know where you need to focus your energy for the trial, which can make it take less time (and cost less).

Finally, if nothing else, be sure you document what offers you make in mediation. As your mediator will tell you, what is said in mediation, stays in mediation. But, there is a bit of a loophole, in that if you have proof that you are willing to settle a case in a certain way, and then later you are able to do even better at trial, you can use the settlement discussions as evidence that your spouse is the one who forced the parties to go to trial, which can sometimes give the judge enough authority to allow you to recover your attorney’s fees.

What is Mediation?

[Ed: Originally published on Facebook.]

“The judge has ordered us to attend mediation before we go to trial.”

What could this judge be thinking? If we could agree on everything, we wouldn’t be getting a divorce, right? If I could talk through all this stuff with my spouse, why would I even need a lawyer?

Mediation works in probably 80-90% of cases. That’s a staggering figure, but it makes sense when you consider the time, expense, and emotional energy that are being spent on your divorce case.

Think of mediation as an “assisted settlement negotiation”. You and your spouse will likely not be in the same room at all during this process; rather, the mediator will shuttle back and forth to keep the discussion moving. A good mediator is also creative, able to think of possible solutions that neither you nor your spouse would ever have come up with on your own. And always remember, you can only settle if YOU want to; neither the mediator nor anyone else can force you to settle.

Mediation can be a key part of your process, and can actually get you “across the finish line”. Take advantage of the opportunity.