Trial. 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.