Early Neutral Evaluations as ADR
In the early 1990’s Minnesota courts started down the road towards requiring all parties to family law proceedings to utilize Alternative Dispute Resolution (ADR). Today it is not uncommon for scheduling orders in all family court matters to require ADR.
The most common types of ADR in divorce, custody, and parenting time proceedings are mediation and early neutral evaluations.
Early Neutral Evaluation
An Early Neutral Evaluation (ENE) provides parties with an evaluation of the issues by a neutral person. This evaluation occurs within a few weeks of the start of a case.
There are two types of early neutral evaluations: social and financial. Social ENE’s, also called Custody/Parenting Time ENE’s, address these non-financial issues though sometimes child support is included. Financial ENE’s address the questions of divorce property divisions, spousal maintenance, child support, and any tax issues. Whereas one family law professional serves as the Financial ENE, a team of two professionals – a male and female – serve as the Social ENE neutrals.
The expectation is that if the family law parties have a neutral opinion, they will be better able to reach a prompt settlement before the parties dig into intractable positions and spend great deals of money on litigation. The neutral approaches the case with the ability to state what they would think a judge would do with the information presented at the ENE.
The Role of Legal Counsel in ADR
By using the services of an experienced family law attorney, parties to these cases can get the most out mediation and ENE’s. An attorney assists the client in not only being prepared with all of the information and documents, but the attorney proposes and develops strategy with the client so that the facts and issues are logically organized based on priorities, related issues, and needs.
All too often the impatience, anxiety, and misunderstanding of parties who use ADR results in someone agreeing to terms that are contrary to their interests, contrary to what a judge would order, and contrary to the best interests of the children. By working with an attorney before and at the ADR session, parties to a family law case will have the benefit of good advice and someone to help them stay the course.
Another advantage of having legal counsel present is that an ADR session can result in an agreement that is binding upon the parties. While not all of the agreements reached at the end of an ADR session are binding, there are times when a client will want to have both parties lock in the terms. These types of opportunities can best be seized with the help of a good family law attorney.
For any sort of ADR to work, both parties must be prepared to compromise in order to reach an agreement. ADR will fail if it is used just to convince the other party to adopt a party’s positions. On the other hand a party needs to be careful not to be too generous. A family law attorney will enable a party appreciate where the line is between prudent compromise and undue generosity.