Bar News - October 19, 2016
Alternative Dispute Resolution: A Flexible Approach to ADR Assists Families in Transition
By: Deborah Rein and Lauren Adams
Editor’s note: This is the first part of a two-part series exploring ADR options in family law cases. Read part two in the November 16, 2016 issue of Bar News.
In family matters, the success of many agreements can turn on the parties’ ability to communicate effectively well into the future. In others, the parties’ future relationship is unimportant to the outcome. There are other situations where the parties have similar goals but need some assistance in articulating them in order to reach resolution. Every family situation is different and every couple’s relationship is nuanced. It serves clients best to analyze, in each case, what decision-making process will best achieve the parties’ goals, and afford them finality with respect to their dispute.
This article explores various ADR possibilities in the context of family law matters. Using a client-centered approach, lawyers can empower their clients by selecting trained ADR professionals who are willing to help them fashion a process that best suits the parties’ situation and goals.
Dispute resolution comes in many forms, and has many names. For some, adherence to the purest names and forms is crucial to the integrity of the process. For others, the ability to create hybrid processes designed around the needs of the clients and their particular situations is key to resolution. Several commonly accepted problem-solving ADR approaches in family law cases include:
Facilitative Mediation – In this approach to mediation, where the neutral facilitates the resolution of a conflict and offers no opinion as to fairness or court outcome;
Evaluative Mediation – A more directive approach, where the neutral makes suggestions for resolution that are consistent with the mediator’s understanding of the law and normal outcomes;
Neutral Case Evaluation – Where an experienced practitioner provides parties with an assessment of the issues presented in an attempt to provide sufficient understanding to facilitate settlement;
Med-Arb – A fairly new approach where parties try mediation and, if not successful, proceed to arbitration. Depending on the parties’ needs and interest, this may involve one or two neutrals and may occur concurrently or simultaneously; and
Arbitration – By agreement, the parties present their cases to a neutral who makes a final, written decision for them pursuant to RSA 542:11.
Advocating a Flexible Approach
Family lawyers considering ADR must carefully weigh the advantages and disadvantages inherent in any given process, and must fully educate their client(s) so that the parties come to the process voluntarily and fully-informed. The lawyer should also evaluate which process is the right “fit” for the parties and the nature of the dispute.
For example, should the chosen process allow the parties to confront each other in a series of problem-solving sessions because there are logistical issues around parenting that are best resolved together (facilitative mediation)? Or should the process provide the parties with an opportunity to present their respective perspectives on their relationship and how it informs their concerns for the future, resulting in a third-party’s empathetic evaluation of their legal positions (evaluative mediation)? Or, perhaps, empathy is not required but reality-testing is (neutral case evaluation). Or, maybe, there are limited but complex issues in a case that need resolution before the parties can even talk about settlement (med-arb). Or, finally, the parties will not mediate but need finality nonetheless (arbitration).
At the same time, lawyers should look beyond the mere labels that are placed on the process. In many cases, for example, a process that starts as a neutral case evaluation can morph into evaluative mediation to encourage on-the-spot problem solving and finality. Other times, an evaluative mediation can become more facilitative once the parties get past some initial reality-testing. The med-arb process is, by definition, flexible. In each case, however, it is important that the choice of process be deliberate and that any move into a different process be assessed, discussed with the client, and approved.
Choosing the Right Neutral
For the chosen process to work, the parties must feel that it is fair, consistent, transparent and appropriate for their particular situation. Another key to the success of the process is selecting the right neutral. When choosing a third-party neutral, keep in mind the importance of impartiality, neutrality, training and experience. Look for a neutral who is willing to be flexible and adapt to the needs of the parties. Consider also whether flexibility would be enhanced by having a law-trained ADR professional.
Where you think you will need a separate neutral if the process continues from mediation to arbitration, it can be helpful to engage neutrals from the same firm, thereby reducing cost and transition time between the two processes. Once chosen, with the consent of the parties, the neutral(s) can further mold the dispute resolution process to most effectively and efficiently resolve the dispute(s) at hand.
In order for the neutral to be able to assess the needs of the clients, there needs to be collaboration among the lawyers and the neutral. Pre-mediation conferences are helpful in this regard, as are written summaries. And, at the time of the first session, the neutral and the lawyers should, together, clarify the process, ensure that the parties are fully-informed and consent to the chosen process, and that everyone is in agreement about the dispute resolution approach.
When representing clients involved in family transitions, consider all the ADR options and choose the process and neutral(s) that will best meet the needs of your client.
Deborah Kane Rein
Lauren Girard Adams
Deborah Kane Rein and Lauren Girard Adams are part of Hess Gehris Solutions in Concord, NH. HGS offers a wide range of dispute resolution services, including in family matters as well as general civil litigation. For more information, please contact us at (603) 225-0477 or visit us at www.hessgehris.com.