Bar News - October 18, 2013
Alternative Dispute Resolution: ADR Methods to Resolve Domestic Disputes
By: Jeanmarie Papelian
Alternate dispute resolution is preferable to litigation for many reasons, notably the time and cost in financial and emotional resources. Agreements incorporated into divorce decrees are more durable than orders imposed by a court. Parties who find a method of resolving their disputes outside the courtroom are less likely to return to court seeking to modify or engage in post-divorce litigation.
Under our statutory system, the Family Division has authority to order parents of minor children to mediate. The mediatorís role is to facilitate discussions with the goal of developing an agreed upon parenting plan that represents the best interests of the children.
Parties may choose to opt out of the court mediation process and engage in private mediation. One drawback to the court process is that it forces parties into mediation very early. If discovery is not yet complete, some parties may be at a disadvantage, especially those who choose to represent themselves. As a neutral, the mediator cannot give legal advice to either party.
The collaborative divorce process provides a constructive and respectful method for divorcing parties to dissolve their marriage. The professional team consists of two lawyers (one for each party), a divorce coach (mental health professional), a financial neutral, and other jointly retained experts as needed. The parties and their attorneys sign an agreement stating they will try to resolve their issues outside the court system. In a series of meetings, attempts are made to reach negotiated agreements on all issues.
In addition to setting a cordial tone for communications, this model offers the advantage of allowing the parties to control timing and maintain privacy. Unfortunately, collaborative practice is limited to parties who can afford to retain counsel, as it will not work if one party is pro se. New Hampshire has a vibrant and growing collaborative practice community. Here is what a satisfied client said after a collaborative team guided her and her husband, the parents of two teenagers, through a painful breakup: "The collaborative divorce process saw us through this family reformulation in a way that left each and every one of us intact and our relationships intact as well."
RSA 542:11 permits parties to stipulate to submit their domestic relations disputes to arbitration. Arbitration has many of the same characteristics as court proceedings. The rules of evidence apply (although the parties may agree to opt out of strict application of the rules) and witnesses may be compelled to testify. The parties choose the arbitrator and select hearing dates. They do not have to wait for the overburdened court clerkís office to process paperwork, and they know exactly when an order will be issued. In addition, the proceedings are private.
Philip D. Cross, a retired marital master who now arbitrates domestic relations cases, describes some of the advantages of this method: "Arbitration gives you and your clients the ability to manage your cases in a timely, effective, and cost-efficient way. It maintains the protection of the legal process, while offering an important alternative to traditional litigation."
Arbitration is perhaps the least "amicable" method of alternate dispute resolution. Like litigation, an arbitration hearing is adversarial and contested proceedings are likely to reinforce hard feelings between the parties.
Parenting coordination is a child-focused ADR process in which a neutral lawyer or mental health professional assists high-conflict parents to implement their parenting plan. Parenting coordinators are especially useful to parents who have difficulty making important mutual and timely decisions about their children. Our court system is not well equipped to resolve such disputes, which arise frequently, require speedy resolution, and often involve issues the court system cannot repair or resolve.
The Kurowski case, decided by the NH Supreme Court in 2011, offers an example of warring parents who repeatedly ask the court to resolve disputes the court system is not designed to resolve. The parents continually disagreed about whether their daughter should be home-schooled or enrolled in public school. In 2006, the trial court noted its reluctance to substitute itself as decision-maker. In 2009, three years later, the parties were still in conflict about the same issue. The court ordered that the child be enrolled in public school. An appeal followed.
The first paragraph of the New Hampshire Supreme Courtís opinion noted its unsuitability for resolving such issues: "Courts have neither the mandate nor the expertise to determine... the most suitable education. When divorced parents are unable to agree on such education choices for their minor children, however, courts are called upon to make these difficult and sensitive decisions, often in a highly contentious atmosphere."
The Kurowskis spent most of their childís school years fighting about where she should go to school, in a forum that was unable to resolve the fight. Sadly, this fact pattern is all too familiar to domestic relations lawyers. Parties who canít agree on parenting issues are not well served by endless litigation, nor are their children. The biggest challenge for high-conflict parents who need parenting coordination may be to get them to the table, as such parties may refuse to voluntarily participate in any form of dispute resolution.
Jeanmarie Papelian is a director at McLane, Graf, Raulerson & Middleton, where she serves as co-chair of the Domestic Relations Practice Group.