When Would I Use Alternative Dispute Resolution?

On behalf of The Marks Law Firm, L.L.C. posted in Alternative Dispute Resolution, Child Custody, Child Support, Divorce, Family Law, Legal Separation, Maintenance, Modification, Motion to Modify, Parenting Plan, Property Division, and Relocation on Friday, June 6, 2014

Not every divorce ends in a contested hearing before a judge.  In fact, the process of reaching an agreement regarding issues of custody, support and property division can take place wholly outside of the courtroom.

Alternative dispute resolution (ADR) offers a different approach to the traditional perception of two parties fighting in court leaving their collective fates up to a judge.  ADR involves a variety of non-courtroom methods of reaching agreement, most commonly mediation and arbitration.

In arbitration, parties submit evidence and argument for their position and agree to let the arbitrator (usually an attorney or retired judge) make a binding decision on the parties.

By contrast, in mediation parties agree to make use of a facilitator to help reach an agreement out-of-court, but the agreement comes from the parties and not forced upon them by the mediator.

In Missouri, courts allow mediation for divorce, but not arbitration – only a judge has the power to impose a binding agreement on a couple seeking a divorce.  And in some counties courts require couples try mediation before pursuing litigation.

How does mediation work?  While every mediator has his or her own approach or style, all generally follow a certain format.  First, the mediator will meet with the parties (together, individually, a mixture of both) to get a sense of whether the parties would be a good fit for mediation.  Spouses with high conflict or an inability to calmly work through disputed points would not be good candidates for mediation.  For mediation to work, the parties must have both a desire and a capacity to remain civil and committed to a fair resolution acceptable to both parties.

If the parties agree to mediation, the mediator will begin by compiling information from the parties individually and surveying their position on the disposition of marital assets and debt, spousal support, and if they have children, a custody arrangement and child support.  The mediator will also explain the law on these matters in Missouri and guide the parties on when their expectations regarding disposition of an issue would be approved by a court.  In this sense, the mediator serves as both a legal educator and also a fairness referee.

Once the mediator has all of this information, the mediator will provide both parties with an outline of the disputed issues and their relative positions and proceed to help them find a middle ground.  How this happens depends on the individual personality and philosophy of the mediator.  Some mediators prefer to impose more boundaries on the parties and lead them to a certain set of outcomes, whereas other mediators take a more passive approach that allows the parties to make the moves toward agreement.  When a couple first meets with a mediator, getting a clear understanding of his or her personality and philosophy is critical to assure a good fit between mediator and couple.

The mediation proceeds over time with the parties either reaching agreement on all disputed issues to record in a Marital Settlement Agreement prepared by the mediator that the parties can submit to the court, or with the parties reaching an impasse that requires following the more traditional court-determined outcome.  In the event of agreement, the entire divorce may be submitted by affidavit and the parties never need to appear in court.

Mediation has advantages and disadvantages.  For a couple that can work cooperatively, mediation reduces conflict, allows for individual ownership of the final agreement, and saves money in attorney fees.  For a couple where one party has more sophistication with regard to finances or foresight with regard to children, the process may proceed unevenly and the agreement may not be as fair as what a court would otherwise decide.  While each party can retain an attorney to consult about the recommendations of the mediation, ultimately the parties decide whether they will accept a mediated agreement.  Where one party may not stand up equally to the other over key issues, agreeing just to end the process quickly may not protect that more vulnerable party.

If you have questions about mediation, contact our St. Louis family law attorneys – we can help.

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