Minneapolis Divorce Attorney & Lawyer : Minnesota Family Law Firm : Brown Law Offices : St. Paul, Twin Cities MN

More and more Minnesota counties are providing divorce litigants with an opportunity to resolve their financial issues through a process known as "Financial Early Neutral Evaluation." Settlement success rates in the FENE model are astonishing - as high as 75% in some jurisdictions.

An FENE involves a half-day session (or two, or three, or four) with a court-appointed neutral. This neutral typically is an experienced family law attorney, or a CPA familiar with the financial issues involved in a divorce. The parties, and their lawyers, sit down with the evaluator very early in the case - in an effort to catch people before they become too embroiled in conflict, or stuck in their position.

The process begins with the exchange of information, to ensure that there has been a full and fair disclosure of all income, assets and liabilities. A balance sheet is often created, which defines the universe of assets and debts, attributes value, provides a basis for the value, carves out any non-marital claims, and then allocates the relevant item to one of the parties. Once all allocated assets and debts are added up for each litigant, the cumulative value for each should be equal. This is typically the least controversial portion of the FENE, but can take some time.

The more controversial portion of the FENE involves the issue of spousal maintenance. With the assistance of the evaluator, the income and budgets of the parties will be scrutinized. A range of possible outcomes may be discussed, and recommendations may be made by the evaluator concerning the amount, and duration, of alimony in the event that the judge is left to decide the issue. Settlement discussions begin with that opinion as a backdrop.

Why does FENE work so often? A few points:

• The parties have direct conversation with one another, and the evaluator, in a natural way. A far cry from the robotic "question and answer" method of introducing evidence during a trial.
• The rules of evidence go out the window at an FENE. Any issue is up for discussion, empowering participants to voice their real-life concerns.
• Emotions may be taken into account at an FENE. Issues concerning "fairness" and "hurt" may be addressed as part of the process. Frankly, the law of "no-fault divorce" precludes alot of this in the courtroom.
• The process can be therapeutic. People feel like they can speak their mind, and they are listened to. Sometimes all a party needs is to be heard by someone. 
• Spouses have to look each in the eye as they discuss the issues. Very different from sitting 25 feet apart in the courtroom, facing front.
• There is a real sense that the parties can "get it done" during the process. Litigants believe that closure has real value, and may be worth a compromise.
• The process is a respectful one. Most evaluators know how to keep tempers from flaring.
• The evaluators, not the lawyers, control the agenda. Both parties feel they are on a level playing field. 
• Opinions matter. Litigants afford substantial weight to the perspective of the evaluators. They know the evaluator has no stake in the outcome, and the experience to back up their opinions.
• The neutrals are forced to "show their work." What I mean is that the parties are literally walked through each of the elements of the case, together, and hear the same thing at the same time. They see how the opinions of the evaluator are created right before their eyes, giving them more credibility.
• The surroundings are comfortable. There are no robes, no gavels, no court reporters, and no security. Just people sitting around a table, with their favorite beverage, talking.

As time goes on, I suspect the FENE process will gain statewide acceptance. Most of the counties in the Twin Cities metro area have adopted such a program. Why wouldn't they? With a 3/4 reduction in divorce litigation, everybody wins....except those lawyers whose practice model is based on "dog fight" mentality. But, who's feeling sorry for them anyway?

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The pilot family mediation project of the Minnesota Court of Appeals appears headed toward becoming a permanent component of the appellate process in Minnesota.

Two years ago, the Court of Appeals began experimenting with voluntary participation in mediation immediately following the filing of an appeal. Most, including myself, were skeptical. Mediation has traditionally involved negotiation prior to trial, not after. Trial typically leaves the litigants even further at odds with one another, with litigants on appeal considered the most conflicted.

However, the Court reports that since inception, the pilot program has resulted in a 52% settlement success rate. I find that astonishing, given the temperment of those participating in an appeal.

As many have commented, it appears family court litigants continue to appreciate an opportunity to "take the law into their own hands" and control the outcome of their dispute. I say that because of the exploding trend toward early settlement of divorce cases through early neutral evaluation. Some counties report 80% of divorce cases settling through ENE.

Last week, I heard grumblings from a court administrator that some lawyers are flustered by the settlement rates. What a shame. I suspect attorneys who work at firms with billable quotas can't stand the idea of losing out on an opportunity to bill hours for the flurry of letters, phone calls, hearings and trials that necessarily accompany conflict-loaded cases.

This appears to be a win-win-win. The courts? Fewer resources needed in family court. The clients? Less cost, less turmoil, more control. The lawyers? A more rewarding, productive practice model.

The keys to success in early resolution, in my mind, are two-fold. You need to find a lawyer with two seemingly competing characteristics: (1) a reputation for success in the courtroom; and (2) a sincere desire to settle matters early. We find that cases tend to settle early when the opposing attorney knows we aren't afraid to (capably) try cases. But, our goal for every client is to litigate only when absolutely necessary. That combination has worked well for those we represent.

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The vast majority of marital dissolution cases settle short of trial, often through mediation. During the mediation process, a neutral third-party will meet with the litigants, and their attorneys, to attempt to find compromise on disputed issues. Topics for discussion often include:

• Child Custody;
• Parenting Time
• Child Support;
• Property Valuation;
• Property Division;
• Debt Division;
• Spousal Maintenance; and
• Attorney's Fees

Depending upon the preference of the mediator, and the parties, the mediator may work with the participants in one large group, or may bounce back and forth between two conference rooms.

The mediators that we utilize are experienced family practitioners with specialized training in alternative dispute resolution. Fees for mediation are typically split between the parties. Mediators charge an hourly rate for their services.

Mediation is a much less expensive option than traditional litigation, and leaves the parties in control of the case outcome. The case may be resolved much quicker and the relationship between ex-spouses tends to be much more respectful after reaching a collective settlement. Children are the direct beneficiaries of this improved level of communication.

For these reasons, we strongly encourage our clients to participate in the mediation process. Our commitment to those we represent involves taking the least expensive road to resolution first. Certainly, if we can't settle a case, we're prepared to take it to trial. But, most clients appreciate our common sense approach to concluding the dissolution process. 

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Yesterday, I mentioned the new pilot family law mediation program at the Court of Appeals. Direct from the source, here are the answers to common questions received by the Minnesota Court of Appeals concerning appellate mediation in divorce and family cases. Thought this information would be helpful for any family litigant contemplating mediation, whether because of an appeal or a district court action.

What is Mediation?

Mediation is a flexible, non-binding and confidential process in which an impartial person, the mediator, helps individuals and their attorneys have dialogue that promotes settlement.

Mediators:

• Improve communication and enhance understanding between the participants;
• Help participants articulate their needs and understand the needs of others;
• Probe the strengths and weaknesses of each side’s legal positions;
• Identify areas of agreement; and,
• Help generate options for a mutually agreeable resolution to the dispute.

A hallmark of mediation is its capacity to expand traditional settlement discussion and broaden resolution options, often by exploring participants’ needs and interest that may be formally independent of the legal issues on appeal. The mediator generally does not give an overall evaluation of the case.

Why Appellate Mediation?

The benefits of appellate mediation can include:

• Avoids the risk of reversal. There is a chance that the trial court judgment may be reversed on appeal and remanded for further, costly proceedings.
• More satisfactory results. The trial court judgment might not satisfy even the prevailing party. A mediator can assist the parties to achieve their real goals.
• Focus on Children. For issues where children are involved, mediation helps parents focus on their best interests.
• Economical. The mediation process begins at the outset of the appeal. This can save substantial costs of preparing the record and briefs. 
• Rapid settlements. Mediation can resolve a dispute in a matter of days, while an appeal takes much longer.
• Allows more client participation. Clients without attorneys participate in the appeals process through written submissions only, and do not have a hearing. Even clients with attorneys can feel frustrated by their restricted role. 
• Higher rate of follow through. Parties who have reached their own agreement in mediation are generally more likely to comply with its terms than those whose resolution has been imposed upon them. 
• Reduces stress. Mediation encourages cooperation and communication, while discouraging the adversarial atmosphere of litigation.
• Avoids financial risk. A judgment for payment or transfer of property still does not ensure collection.

Who Attends the Mediation?

All parties to the appeal, and their lawyers if they have them, are required to attend the mediation. Under special circumstances, other arrangements may be made, if acceptable to the mediator and all parties. This requirement reflects the Court of Appeal’s view that the principal values of mediation include affording the litigants opportunities to articulate their wants and needs directly to the other parties and the mediator, and to hear first hand the other party’s wants and needs. Mediation also enables parties to directly discuss opportunities for mutually acceptable solutions.

How Should I Prepare for Mediation?

If you are pro se, you can think about these ideas before attending mediation, or discuss them with someone you trust. Attorneys and clients can discuss these ideas together before attending mediation:

Understand your goals and needs. Mediation helps parties explore what really matters to them. You can prepare for mediation by thinking about what you need to allow you to resolve the matter. Needs are not just what you WANT the court to do, but also WHY you want it ... think about how getting what you want will benefit you and your family?

• Expect the discussion to go beyond the legal issues. Think about what is of highest value to you? It might not be what is in the appeal. For example, sometimes your children’s stability, being respected, a favorable relationship with someone, or end of the stress of litigation can be of equal or higher value than money or principle.
• Prioritize. Think about what interests are most important to you to achieve. Understand where you may be willing to make concessions to get what you most want.
• Think about what the other party needs. Other parties have their own goals and needs. They may overlap with yours, or they may be different. Mediation tries to find creative ways to help both party’s meet many of their needs. Think about questions to ask the other party to understand what is most important to them.
• Create a list of options. Consider a variety of ways to meet your needs, and those of the other party. Be creative and leave the possibility open that you will find more options through your discussions in mediation.

Who Are the Mediators and How Are They Selected?

The twelve-member pilot project panel consists of highly respected mediators. All of them are attorneys, and have many years of family mediation experience, and an understanding of the appellate process. They are qualified family neutrals under the MN General Rule of Practice for the District Courts Rule 114, and have completed additional training on appellate mediation. They agreed to serve on this pilot panel on a sliding fee basis because they want to help people in the appellate process try a different path to resolution. You will receive a list of available mediators and short bios for them when your case is referred to mediation. You then have the opportunity to rank your preference of mediator, or agree together with the other side on who you want to choose.

What Happens if I am Ordered Into Mediation?

An Order for Mediation, Confidential Information Form (“CIF”) and this information sheet is sent to the lawyers and parties who do not have lawyers. The Order stays (stops) the appellate process from moving forward. Transcripts will not be ordered, and briefing will not be scheduled. This is to help parties avoid the costs of the appeal if they are able to reach resolution in mediation. Parties are required to complete the CIF and return it to the Court within 15 days. This form does not become a part of the court record. The form gives parties the ability to opt out of the mediation program with a valid reason. Parties also provide income and asset information to the Court to determine appropriate fees for mediation. The Court will set the fees and refer the case to the mediation coordinator, who will help the parties to select their mediator and schedule a telephone conference with him or her.

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For the second time in as many weeks, no family law decisions issued by the Minnesota Court of Appeals or Minnesota Supreme Court. The likely culprit? A new pilot appellate mediation program aimed specifically at family law cases. My guess is the former flood of appellate opinions is being limited by the settlement of cases.

The pilot program, which began 18 months ago, is designed, according to the State, "with the goal of decreasing the conflict levels for families, decreasing the costs to litigants and the court, and increasing efficiency and litigation satisfaction."  The process is structured to reinforce and work cooperatively with the early-neutral-evaluation and other alternative-dispute processes that are become more common at the district court level.

Referral to mediation takes place after the appellant's Statement of the Case has been filed and the filing fee has been paid, but occurs before the briefing stage and before litigants incur the substantial costs of ordering transcripts from the district court where the case originated. Good news; parties to an appeal can expect to spend no less than $10,000.00 each to get through the process.

About a week ago I received a Notice of Appeal from an opposing litigant. Thus far, the Court of Appeals has stayed the proceeding (did so almost immediately) and ordered the parties to mediate within 90 days. The parties are able to rank  five highly qualified mediators appearing on the Court's roster of approved neutrals. The combined blind rank of each party will determine who will serve as the neutral. A sliding fee scale has been implemented, to facilitate various income and net worth levels.

I've heard nothing but good things about the program. I'll update the process as I work my way through it for the first time.

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In most dissolution cases, a host of assets and liabilities must be accounted for and divided. Homes, cars, boats, snowmobiles, retirement plans, business interests and other "big ticket" items are usually placed on a balance sheet and allocated among the parties, with the spouse receiving more value paying the other a cash equalizer. But what about "the stuff" in your home?

Truth be told, the Court wants nothing to do with dividing items of personal property of nominal value. If parties can't agree on how to divide "the stuff" the judge will simply order everything auctioned and divide the sale proceeds. As you might expect, at auction you'll receive perhaps ten cents on the dollar. We're talking garage sale prices. Then, you, and your spouse, will have to turn right around and purchase another iron, toaster, DVD player and living room set. Makes little sense.

The good news is that there are tried and true processes that we have utilized in assisting couples through the division of "stuff." Here's what has worked for our clients:

• Two Lists: One of you makes two lists of items, of roughly equal value. The lists are presented to the other. The person who didn't draft the lists gets to pick which list they want. There is an incentive for the person drafting to fairly and equitably divide things or they'll get burned during the selection process.
• Silent Auction: This is my favorite. A master list of all of your personal property is created. Each party blindly puts a dollar value next to each item. The high bid takes the item at the value listed. Once all items are bid on, the totals for each party are added up. The party receiving the higher dollar value pays the other a cash equalizer to make up the other's shortfall. Parties are free to place a high value on items they really want, but won't list a ridiculous bid out of fear of paying a large offset.
• Arbitration: An arbitrator is basically a private judge. You pay this person, usually a lawyer, to listen to your side of things in an informal conference setting. Then, your spouse does the same. The arbitrator is given the authority to divide the entire list of items as they deem fair and equitable. Costs are saved because the parties attend the arbitration without counsel and divide the arbitrator's fee. Most couples submit to binding arbitration so that the decision of the arbitrator is final.
• Rotating Lists: Make a master list and take turns going back and fourth until all of the personal property is divided. Flip a coin to see who goes first.

The bottom line is that usually the personal property of the parties isn't worth the money that will be spent fighting over it. It's true...we've been caught in the middle of disputes over Christmas ornaments, but not by choice. By the time all was said and done, both parties could have purchased a collection of new decor with the legal fees they would have saved by putting down the swords and agreeing to a process that would fairly, and cost-effectively, get the issue of personal property division resolved.

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Following Hennepin County's lead, and a statewide trend, the Anoka County District Court has implemented a pilot early neutral evaluation program for divorcing couples. The evaluations focus on the two key issues involved in a dissolution: custody of children and economics.

Couples can divert from the court system and meet with qualified "neutrals" who will facilitate settlement discussions and (unlike traditional mediation) offer opinions about the merits of a party's position. If successful, the process can save litigants months of emotionally-charged litigation and tens of thousands of dollars in legal fees and costs.

Five Anoka County judges have agreed to participate in the program, including Judge Sharon Hall who says that the early neutral process will allow litigants to "keep some control over their situation." The family law section of the Anoka County Bar Association has been a driving force behind the program, which provides litigants with yet another alternative to traditional litigation.

One big difference between the program in Anoka and Hennepin County involves funding. While Hennepin County covers the bulk of the costs for litigants, the Anoka County program has a very limited budget. Work is done by local lawyers, not county employees, on a sliding fee scale.

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As of September 2, 2008, the Minnesota Court of Appeals will refer all family court appeals for mandatory mediation (with some exceptions for cases involving, for example, domestic violence). The program was designed to decrease costs and conflict for families involved in appellate cases while increasing litigant satisfaction.

Upon the filing of a Notice of Appeal, the Court will immediately refer litigants to mediation. Mediators available to serve include a panel of 12 retired judges and/or experienced family law attorneys. Parties will pay the costs of the mediation on a sliding fee scale.

This pilot program was initiated three years ago as the result of a meeting between Judge Harriet Lansing and William Mitchell College of Law Vice Dean for Academic Programs Nancy Ver Steegh. Ver Steegh is known for her work in the area of family law and alternative dispute resolution, and serves as an Editor for the Family Law Professor Blog. The Chief Judge of the Minnesota Court of Appeals, Edward Touissant, believes the program is here to stay, calling it a "win-win" situation.

A few other states have adopted similar programs, with a resolution rate as high as 76 percent. That's an impressive statistic, given the adversarial mindset of litigants - especially following a trial.

We've seen clients benefit from the trend toward resolving family disputes through mediation.   This new mandatory appellate mediation might just result in additional justification for working with a mediator in the very early stages of litigation and avoiding unnecessary fees, costs, time and emotion.

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Every person going through divorce will face one fundamental decision time and again: Do I compromise or do I stand firm in my position? Certainly there are times for both. As often as possible, however, we recommend taking the high road and giving a little of yourself for the greater good of your family. This may not seem like good advice coming from a divorce lawyer. After all, isn’t it our job to stand and fight to the bitter end with sharp claws and gnashing teeth (have you seen those silly attorney yellow pages ads yet...the ones with growling grizzly bears and wolves featured prominantly)? Each case requires a little different approach.

At this point in time, compromising probably doesn't seem like the best thing to do for yourself. Nor is it the best for your lawyer's pocketbook. But, a lawyer who truly has your interests in mind will attempt to position your case for settlement and speak with you about how to approach a case in a sensible manner rather than unnecessarily drive up the costs of your case through contentious litigation. We often say that any fool (referencing the attorney) can turn a $3,000 case into a $30,000 case. Aggressive lawyering typically yields greater fees and much of the time it simply isn't necessary. 

Unfortunately, in some cases we can do nothing but litigate. We've been there many times and enjoy trying cases. This entry is not intended for parties who have been victims of severe domestic violence or whose children are in danger while in the care of their other parent. In those situations, and others, we must take a very aggressive approach. However, the vast majority of cases do not involve such situations and can be resolved much less expensively (in terms of dollars, time and emotions) in a manner that is consistent with what the court will ultimately do with the case if asked to decide. 

Consider how your soon-to-be-ex feels about things. Think about your children. Discuss solutions that work for everyone involved in the case, not just you. Most importantly, it is irresponsible to intentionally create or fuel ongoing conflict during a divorce. In our experience, clients who are bitter, angry and relentless in their approach wind up hurting themselves and living with much more pain than those who come to the table with a sense of flexibility and reasonableness. We find they are also far less satisfied with the legal process.

We are not suggesting the divorce process will be easy for you. Everyone knows that it is very difficult to make reasoned decisions in the middle of an emotionally charged situation. It is our job to help with that. We understand you may hurt because of infidelity, irresponsible spending on the part of your spouse or chemical dependency issues. But, the bottom line is that the court does not care about such things, unless they have a direct impact on the welfare of the children. For that reason, it is important to focus on the things that do matter to the ultimate decision-maker in your case.

We find the couples who resolve their case through settlement feel much better about the result. They own the agreement. They haven't been told what they are going to do some person in a black robe. They conclude their case in a much shorter time frame than expected. They have more financial resources to draw on in the future. And, most importantly, their children seem to benefit from the fact that their parents, despite the dissolution, have found a way to work things out. The experts agree that divorce is a very stressful and difficult time for the litigants. But, those same experts also agree that it is even more stressful and painful for children. The longer your case lasts, the more harm will be done to your children.
 

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Minnesota is a no-fault divorce state. A divorce will be granted in Minnesota without the necessity of proving that one of the parties is guilty of marital misconduct. In earlier times, a party to a divorce was required to demonstrate that the other spouse was at fault for causing a breakdown in the marriage. Adultory was by far the most common basis, but others included domestic abuse, abandonment and an inability to consumate the marriage.

Today, a party to a divorce in Minnesota must merely demonstrate that there has been an "irretrievable breakdown" in the marital relationship. One spouse must simply acknowledge as much, and the court will grant their request to dissolve the marriage. A relatively low threshold - and a tough pill to swallow for those who feel that there is no "justice" in their case unless the court takes into account marital misconduct.

Potential clients often ask, "Should I fight the divorce?" Yes, if you intend to do so outside of the legal arena through counseling or therapy. Once it is obvious that the marriage cannot be saved, your resistence should be limited to that which is necessary to obtain a favorable court order. Not wanting the divorce can be used as leverage against your spouse if they are anxious to conclude matters. Often, the impatient spouse will buy a quick resolution by making an extremely attractive settlement offer. This strategy should be balanced against overdoing it. If you are fighting the dissolution process out of anger or spite, you are likely to cause significant economic and emotional harm to you, your spouse and your children.

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