Mediation 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 an attempt to reach an amicable settlement.

The most common types of ADR in divorce, custody, and parenting time proceedings are mediation and early neutral evaluations.

Mediation

Mediation is available prior to going to court and/or after a case has started. While formal court attention will eventually be required, there is no requirement that married couples and parents start a court case before they try to resolve their differences with a mediator.

Mediation is where a professional mediator facilitates a productive, confidential meeting between people with disagreements and disputes. Within a safe environment of balanced power between parties, information is gathered relating to each individual’s goals, which may include children’s needs, income, budgets, taxes and property valuations. From there the mediator facilitates decision-making using creative, values-laden processes that permits the parties to find common ground for each of the issues identified. Any agreements result in a memo written by the mediator describing all decisions made by the parties.

 

The Role of Legal Counsel in Mediation

By using the services of an experienced family law attorney, parties to these cases can get the most out 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.