Mediation and Other ADR Processes During Divorce
Mediation, and other forms of Alternative Dispute Resolution (ADR), can be a less stressful and more cost-effective way to resolve divorce disputes. Mediation is a chance for the parties to take control of their divorce and make decisions for their separation that they think will be the most effective for their relationship. The Court does have the authority to require non-binding Alternative Dispute Resolution (ADR) in appropriate cases; however, parties can agree to participate in mediation anytime during the divorce process. There are several types of ADR processes in which parties can participate, including: Mediation, Early Neutral Evaluation (ENE), and a Mediated Settlement Conference (MSC). Below each type is outlined.
Divorce and Family Mediation
Mediation occurs when a third party neutral facilitates communication between parties to promote a settlement agreement. Mediators do not impose their own judgments on the parties. This process is informal and flexible, and attorneys are typically present during a mediation session.
Generally, a mediator will start with a joint session with both parties to better understand the issues and the goals of each party. Then the parties will separate while the mediator carries messages—offers, counter offers, questions, demands, and proposals—between both sides to help the parties move closer to a resolution.
A mediator has no authority to require a settlement agreement or even compel the parties to settle. Mediation is non-binding until a resolution is reached and all parties agree upon the resolution. If a resolution is not reached in mediation, parties may not use what was discussed in the mediation in court.
Early Neutral Evaluations (ENE)
An ENE is a forum in which attorneys present the core of the dispute to a neutral evaluator in the presence of the parties. This occurs after the case is filed but before formal discovery is conducted. The neutral then gives an assessment of the strengths and weaknesses of the case. If settlement does not result, the neutral helps narrow the dispute and suggests guidelines for managing discovery.
There are two different types of ENE’s including: a Social Early Neutral Evaluation (SENE) and a Financial Early Neutral Evaluation (FENE).
Social Early Neutral Evaluation
The goal of a SENE is to resolve child custody and parenting time issues. A male and female team consisting of a lawyer and a social worker conducts this process. They provide a neutral opinion after gathering information from all parties. This is a confidential process and the evaluators may not be called as a witness if the case does not settle.
Financial Early Neutral Evaluation
The goal of the FENE is to resolve financial issues including spousal maintenance, division of assets or property, or child support. This processes is conducted by a lawyer and a financial professional (ex: accountant or CPA). The process is confidential and any offers made in the evaluation may not be used in court.
In both processes, if an agreement is reached, the attorneys work with the evaluators to draft appropriate documents to be filed with the Court. If an agreement is not reached, the parties proceed based on the Order issued by the Court.
Mediation and ENE’s, although similar, are different in their processes. In mediation, the parties work to reach a resolution and the mediator does not take a position but rather facilitates communication. In an ENE, the neutral evaluators do an evaluation of the issues and then make a recommendation to help facilitate a settlement. The recommendations by the neutral evaluators are not binding unless all parties agree to the resolution.
Moderated Settlement Conference (MSC)
An MSC is a voluntary late-stage settlement conference with a neutral family law attorney or a retired judge. The goal of the MSC is to settle a case before it goes to trial; in most cases it will take place after a pre-trial but before the trial stage. The conferences often take place at the courthouse with a judge available to either accept any settlements on the record, or to answer questions if requested by both parties.
Like mediation, the MSC process is confidential–the advisory opinions of the moderator and settlement offers exchanged between the parties are not later admissible in court. However, unlike mediation, the neutral offers an evaluation of how the Court may rule on certain issues to help break impasses.
At Lake Harriet Law, we work diligently for our clients, to help them receive the best terms in their divorce, including a fair and equitable financial settlement. If you are considering a divorce, contact our team to schedule a confidential office consultation.
Randall A. Smith – Managing Attorney 612-750-4843
Aubry Fritsch – Student Attorney 612-223-8925
Taylor Blatchford – Student Attorney 612-223-8925