alternative dispute resolution

Avoiding court is a common goal of many clients. Not only can it be expensive and time consuming, but it can also be emotionally exhausting and do further damage the parties’ relationship particularly when they need co-parent. Being prepared for court ensures that a client will always give themselves the best chance at a favorable outcome to their case, but that does not mean a case may not be better served by staying out of court.

“Alternative dispute resolution” is a phrase more commonly heard in civil and commercial litigation cases, but the same principles apply in family court. It describes a category of methods for keeping cases out of court and away from traditional litigation. The advantages being that the parties have more control over the time-frame, costs, and legal issues being addressed in their case. The following is a list of the most common alternatives to going to court:

1.         “Four Way Meeting” – the two parties and their two attorneys sit down together and work on settling the case. The goal of these meetings should be a written agreement between the parties.

2.         Mediation – the parties meet with a neutral third-party to try to reach a mutually agreeable solution. The mediator guides them through their issues and suggests ways to resolve disputes. The mediator will not make decisions, however, and the case is settled only when the parties sign a settlement agreement.

3.         Arbitration – an attorney or expert is hired by the parties to effectively serve as “judge.” The major advantages to this method are that the arbitrator does not have the scheduling constraints of the court system; operates within the rules the parties decide upon in advance, and; addresses only those agreed upon issues. Though often the closest method to traditional litigation, it usually allows cases to move forward more quickly and, for complex cases, less costly.

4.         Collaborative Law – this is a catch-all term encompassing many of the concepts identified in the other methods while also suggesting a philosophical shift away from litigation. Collaborative law often means a series of sessions and meetings between the parties and counsel to work through issues; shared costs and resources for the valuation of the marital estate or custody evaluations, and; a cooperative rather than adversarial approach between the parties and their counsel.

Each case requires a different approach and there will always be some cases which need to move through the traditional litigation track.  Where appropriate, however, these forms of alternative dispute resolution can provide parties with the opportunity to expedite their cases and, hopefully, invest fewer financial and emotional resources to the process.

One of the difficult aspects of taking a complex case to trial is not the subject matter, necessarily, but the Court’s ability to schedule several consecutive days of trial.  Due to case volume, the court administrators can rarely carve out two or more consecutive days of trial without significant advance notice and, often, direct instruction and assistance from a judge’s chambers. As a result, a judge’s schedule may require you to have a week-long trial spread out over several weeks or months. Not surprisingly, attorneys, witnesses, and even the judges can lose some of the thread of arguments presented in such a disjointed fashion.

An alternative to trial is to take the case to arbitration.  An arbitrator is a third-party hired by the litigants to basically serve in the role of a judge-like finder of fact. The parties sign an arbitration of agreement and usually stipulate to certain ground rules for how they will handle the arbitration. For instance, some parties make the arbitration “binding;” in other words, the arbitrator’s decision becomes the law of the case. 

Another advantage to arbitration is to help limit costs through the arbitrator’s assistance in narrowing issues and avoiding some of the costs of broad discovery. Because the arbitrator is hired by the parties, he or she works on the litigants’ schedule – the arbitrator can set aside a full week for trial at a time that works for all involved and take the time to really hone in on issues without being at the mercy of the court’s availability. Rather than prolonged discovery schedules and waiting for trial, the arbitrator can help move the case to swift conclusion.

Eliminating the pressure of having to fit a two day trial into an afternoon before a judge helps the parties and the courts. Arbitration is one of many forms of “alternative dispute resolution” and by diverting cases off the Court’s docket and into arbitration, the parties are helping to free up the Court to adjudicate other cases.  There is the added advantage of the parties that unlike a court proceeding, the parties can agree to make the record and information disclosed within the mediation confidential.

Finally, utilizing an arbitrator is often like hiring a mediator. Having already reached an agreement to arbitrate and move the case out of court, it may also be possible for the arbitrator to help facilitate other agreements between the parties, be they discovery rules, stipulations of fact, or interim relief.  Agreements often lead to other agreements and once the parties start to work together, it may be possible to resolve the entire case. 

Even where settlement seems impossible, by moving their case into a venue where they will help set the schedule, parties will know that on a definite date they will have had their “day in court” and can expect a decision from a finder-of-fact. The certainty of those two elements, alone, may be its most attractive benefit.