Minnesota Alternative Dispute Resolution Methods: Alternatives to Trial

mediation1Trial. In family court, it may be the most difficult thing a litigant can experience. The time, cost and emotion involved in litigating a case can be significant – not to mention the unpredictability of leaving your future in the hands of a stranger in a black robe.

The good news is that in Minnesota there are a number of alternatives available to those who are facing a divorce. In this post, I’ll outline the most common forms of alternative dispute resolution in a marital dissolution action.

Mediation. Bar far the most well-known ADR method involves mediation. Mediation involves a forum in which a neutral third party facilitates communication among parties, and their counsel, to promote settlement. Mediators may not impose their own judgment on the issues in dispute – unless the parties ask them to. In that situation, the process is typically referred to a “evaluative” mediation.

Arbitration. In an arbitration, the parties, and their lawyers, present their position on an issue before a neutral third party. That neutral follows with an opinion and/or order. By default, the arbitrator’s opinion is not binding upon the parties. If agreed by the parties in advance, however, the order of the arbitrator can be binding and enforceable – as though the arbitrator sits with the same power as as judge.

Mediation-Arbitration. A “Med-Arb” involves a hybrid of traditional mediation and arbitration. The parties initially mediate their disputed issues. If they reach an impasse, the arbitrator will make a decision.

Consensual Special Magistrate. The retention of a consensual special magistrate allow each party, and their lawyers, to present the matter as though the magistrate sits in the position of the judge. The matter is actually “tried” to the magistrate, and  his/her opinion is subject to appeal directly to the Minnesota Court of Appeals. You might think of a CSM as a “rental judge.”

Early Neutral Evaluation. In an early neutral evaluation, the lawyers and parties present the issues in dispute to a neutral evaluator (sometimes a team of evaluators). The process occurs rather early in the matter (before formal motions and/or discovery). Once all of the relevant facts and arguments have been made, the evaluator will offer his/her opinion about the strengths and weaknesses of each side, and the likely outcome in the event that a trial occurs. The parties, in reliance upon that opinion, begin mediating their dispute. About 80% of the time, a settlement is reached.


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Is Divorce Mediation Right For Me? (Yes)

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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The Four Phases Of A Contested Divorce In Minnesota

About half the cases we handle are more contested divorces. These are marital dissolution cases in which the litigants don’t expect to reach agreement early and, instead, need the intervention of the court system in order to reach a resolution.

These divorces typically involve four distinct segments.

The first segment of work in a contested case involves the case workup. This is where we put together the initial pleadings in the case and serve and file them. You will complete an initial questionnaire and provide documentation to us so that we can adequately move forward and understand exactly what relief is sought.

Following the service of the summons and petition, we will participate in what’s called an initial case management conference. This is a first meeting with the judge, on an informal basis, to talk about the issues that are in controversy. The court, at that point, might refer the matter for an early neutral evaluation. This is a process where the parties can meet with a court-appointed expert and try to settle the case before becoming too entrenched.

If matters don’t resolve at the early neutral stage, then we move into the next phase – called discovery. This is a process where we’re going to gather information from your spouse. We may do so formally, or informally.

In addition, we may elect to schedule a motion for temporary relief. This is a hearing in which the court will make a determination, on a temporary basis, of who is going to reside in the homestead, who is going to have temporary custody of the children, and what sort of temporary alimony, or child support awards, are appropriate. Quite often cases will settle following the entry of a temporary order, because the parties have a preview into how the judge views the facts of the case.

However, if the case has to continue, we will position your case for the settlement stage. We’re going to attempt to work out matters either through mediation, or some other form of alternative dispute resolution.

If we’re not able to work it out, the court will call us back in, and we will participate in a pre-trial conference, where we’re going to try one last time to get the case settled, with the assistance of the judge.

The fourth phase involves preparation for and actually trying the case. The judge has 90 days to issue a written decision following the end of the trial, and if either party is dissatisfied with the outcome, they have an additional 60 days in which to file an appeal.

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Minnesota Court Of Appeals Family Mediation FAQ’s

Yesterday, we 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.


  • 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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Divorce Mediation And The Role Of A Mediator In Marital Dissolution Cases

When people mediate, they bring their conflict to a place where they try to settle their dispute. To assist with the process, an impartial third person, or “mediator” helps them reach an agreement. The mediator does not take sides or make decisions. Rather, he or she should be fair to all parties and help them find a solution.

More and more individuals are trying to resolve disputes through mediation. While this process can occur without the assistance of professionals, sometimes problems arise, and individuals need to seek counsel or advice. Often during divorce, individuals need to work out one or many problems with the other spouse. When they ask a mediator to help them solve a problem, they buy into a process that allows a trained third party to use facilitative skills to help them resolve their conflicts.

In certain situations, courts will require couples to mediate. This is called court ordered mediation. A judge may order couples to mediate certain issues that are difficult to resolve. For resolving parenting time conflicts, a judge has the discretion to assign an expediter to help couples set up a visitation schedule for their children.

When couples seek mediation voluntarily or by court order, they are trying to resolve some routine problems that come up in divorce. Problems that people bring to mediation may include visitation, child support, parenting responsibilities, spousal maintenance (alimony), property division, debt division, and/or division of financial assets. The opportunity to mediate allows parties to take the time to address all their concerns and, with the mediator’s help, to reach a workable compromise.

People often prefer to mediate rather than go to trial. Individuals may mediate before separation, and before, during and after the divorce process. In fact, a final divorce decree can state that for future conflicts, parties agree to first seek mediation to resolve problems that come up after their divorce is final.

Mediation may not be a good choice if:

  • A person or his/her children have been verbally, physically, emotionally or sexually abused by the other person;
  • One person fears the other person or doesn’t trust the other party to be fair or honest ;
  • One person is not ready emotionally to mediate;
  • The mediator is not treating either party fairly;
  • One person has difficulty making decisions; or
  • There is a power imbalance the mediator cannot neutralize.
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