Courts throughout Minnesota encourage (in and many circumstances require) parties to use various forms of Alternative Dispute Resolution (ADR) to resolve their family law disputes. The Rule 114 Qualified Neutrals at Tuft, Lach, Jerabek & O’Connell, PLLC provide a variety of ADR options in cases in courts in Ramsey County, Hennepin County, Washington County, Anoka County, Dakota County and beyond, in order to encourage settlement, minimize expense, and prevent cases from going to trial. Staying out of court and away from the litigation process often reduces the financial and emotional cost of a divorce and can set a more positive tone for how the parties’ future interactions. Some of the ADR services provided by Tuft, Lach, Jerabek & O’Connell, PLLC are as follows:
Facilitative Mediation: A process in which a mediator is a helper or facilitator who helps the parties to talk to each other and come to civil agreements about the case. This is the traditional approach to mediation. In a Facilitative Mediation, the mediator is there simply to assist the discussion rather than try to encourage the parties in one direction or another based on the mediator’s opinion of how the case would be resolved by a judge.
Evaluative mediation: This approach has become more common than facilitative mediation. In a manner similar to a facilitative mediator, an evaluative mediator would be helping parties to reach agreement in a dispute. However, in an evaluative mediation, the mediator will also tell the parties what decisions they think a judge would be likely to make in the case.
An evaluative mediator will make sure to specify that their personal suggestion isn’t guaranteed to match that of a judge. It is important for both parties to understand that they are still very much in control of the circumstances and any final agreement. An evaluative mediator does not get to make any definitive decisions for the parties involved. Ideally, this allows parties to be more trusting with mediator, and therefore more comfortable talking through any issues.
The main goal of any mediation is to come to a resolution that works best for each specific family and circumstance. It is often only when both parties are at a standstill that the mediator steps in and offers feedback about how they think a case is likely to be decided, in the hopes that the parties take that feedback into account and use it to help move the process forward again. Many times, parties are able to come to their own resolution with little input from a moderator; because each situation is so unique, it is helpful to have this option.
Early Neutral Evaluations:
FENE (Financial Early Neutral Evaluation): FENEs are very similar to evaluative mediation; in both cases, a neutral third party is hired to meet with the two opposing parties, hear facts and arguments from both sides of the case, and then weigh in on the issues. However, oftentimes the evaluator in a FENE will come to weigh in on a case much quicker than they would on a regular moderation. This is due to the increased structure of an evaluation, especially when compared to a less formal mediation. A FENE concerns the financial assets of the parties and is utilized in a way that both parties have the opportunity to present their positions. The meetings in which FENEs occur are often treated as informal hearings or mini trials.
SENE (Social Early Neutral Evaluation): SENEs are ENEs that cover issues involving children, such as custody labels and parenting time. They also sometimes include other disputes between parents, including child protective solutions. SENEs differ from FENEs for a couple of reasons. They typically include two evaluators, one male and one female (so as to maintain neutrality). The first evaluator is usually some kind of parenting expert, such as a child psychologist or therapist, who can understand the developmental levels of the children in a given case. The second evaluator is a lawyer and legal professional who can more accurately anticipate the decisions that a court would be likely to make regarding that specific case.
All of this adds an additional level of structuring to a mediation, even compared to a FENE. The petitioner speaks first, uninterrupted, and then the respondent has the opportunity to speak. Both parties then have time to rebut arguments before the evaluators leave the room to discuss a reasonable resolution. The neutrals then help the parties to try to negotiate and come to an agreement surrounding the issues discussed.
Should the parties be unable to reach an agreement after an evaluation, the evaluators do not disclose the full discussion to a judge in court. This is to ensure that clients feel safe discussing their feelings in a mediation without fear that their arguments can then be used against them in court. Both types of ENEs are highly beneficial to parties experiencing more specific disputes. FENEs and SENEs both have a success rate of approximately seventy percent.
Late Neutral Evaluations:
MSC (Moderated Settlement Conference): A MSC is designed to help parties get the case settled as they are approaching the date of an official trial. The Moderator is typically an experienced family law attorney or retired judge. This differs from the previously discussed methods of dispute resolution, which typically occur early in the dissolution process, oftentimes before discovery has been exchanged and before all the facts of the case have been fully laid out.
In a MSC, the assumption is that the parties have already exchanged discovery and have essentially all necessary materials and information to go to trial. The Moderated Settlement Conference is a last resort attempt to get the case settled without having to incur the time and expenses of a trial. These conferences are typically completed in the courthouse (or over Zoom) with the judge available to accept a settlement. In addition, in certain circumstances the judge is available to give input to the lawyers and mediators about the conflict. The lawyers and mediators can take this feedback from the judge back to the parties involved in order to help reach a resolution. If an agreement (or partial agreement) is reached, the parties can enter the courtroom (or Zoom conference) with the judge and put the agreement on the record, which the judge can approve and therefore make legally binding. It is worth noting, however, that most of these cases are resolved without input from the judge.
In a MSC, the Moderator’s job is to settle the case. The Moderator may hear from the parties and their attorneys, may review proposed exhibits, and will likely give very direct feedback in an effort to get the case settled.
Confidentiality. One thing that is important to understand is that the above processes are confidential in the sense that any the thoughts, suggestions and settlement offers cannot be made shared with the court whether they ideas come from the neutrals, the parties, or the attorneys. Information that would otherwise be discoverable, like many documents, are not confidential. The only thing the neutral can report to the Judge is that the parties participated.
In contrast the processes below are not confidential. In most cases, the neutral is making legally binding and enforceable decisions that may be filed with the court.
CSM (Consensual Special Magistrate): A CSM can only be appointed by agreement of the parties. A CSM is essentially a neutrally appointed private judge. This can only be done by agreement of the parties. A decision made by a magistrate is binding and can ultimately be appealed to the courts, the same way that a ruling from a judge could be. Among other reasons, people may request a magistrate because they don’t like the judge who was assigned to their case, or the judge’s timing may be undesirable, and a magistrate may be able to offer a more flexible schedule.
Special Master: This neutral is appointed by a judge and is intended to serve a unique, limited purpose. The Special Master may be appointed over the objection of the parties. The role and responsibilities of a special master can sometimes be very similar to that of a parenting consultant (see below), but can also cover financial issues, review documents for privilege or other specialized issues. Decisions made by the special master can be appealed to the trial court.
Arbitration: A neutral arbitrator may be appointed by agreement of the parties. This agreement is then approved by the judge on the case. An arbitrator, unlike a judge, will make a binding decision without right to appeal. By statute arbitration decisions must be made quickly. These types of resolutions are beneficial to parties due to shortened wait times resolutions. It is also sometimes a relief to have the finality that an arbitrator’s decision provides. Arbitrators are frequently used to resolve disputes over household goods. Arbitration can be used to resolve almost every issue in a divorce.