Mediation/Arbitration
As a veteran Dane County family law attorney, I have litigated hundreds of family court cases, including divorces and post-divorce custody and placement disputes. Regardless of how obvious outcomes might seem; based upon evidence and opinions of experts or attorneys, trial court decisions seem increasingly unpredictable. Clients express a litany of complaints about litigation being emotionally damaging, intrusive and grotesquely expensive. It’s no wonder parties increasingly try to resolve their own disputes without counsel, mistakenly believing the system will guide them through the process. Many are picking up advice here and there from friends and free consultations with lawyers who may not be expert in family law.
I have reached the conclusion there is a better way. Mediation/Arbitration offers an alternative to parties engaged in disputes about kids as well as financial issues. “Med/Arb” is a process by which the parties hire a mediator to assist them in settling disputed issues; and in the event that mediation fails, the mediator makes a final arbitration decision on the issues. An arbitration decision is virtually unappealable, thereby offering closure to both sides. Moreover, the process plays out in an informal setting without strict application of the rules of evidence. Med/arb offers flexibility and control to the parties, because they are free to establish their own ground rules and avoid confronting each other in a courtroom.
The parties may choose to process their disputes by caucusing separately with the mediator, with or without presenting any witnesses. Much of their “evidence” can be presented in the form of written reports and documents submitted and reviewed in advance of their mediation session. The mediator can then go back and forth between the opposing parties to follow up and address issues on the spot. Most cases mediate successfully.
Mediation/arbitration can be scheduled early in the legal proceedings, as soon as sufficient information has been developed concerning issues in dispute. Property division can be resolved by reviewing documentary evidence of asset values. Support and maintenance can also be decided by reference to solid information about earning capacities and incomes available to the parties. The court’s calendar is irrelevant, since the parties can schedule directly with their mediator. The strictly applied legal procedure and rules of evidence are waived.
Divorcing couples facing custody and placement disputes in the context of high conflict divorces enjoy the same flexibility. They can participate in med/arb with (or without) counsel and still consider hiring experts to appraise assets, conduct custody and placement studies, etc. These experts can generate reports which are shared with the mediator/arbitrator, with or without testimony. Parents may also choose to have a Guardian ad Litem appointed to represent the children’s best interest in this process. This is usually desirable in highly contested custody and placement disputes.
The best part is med/arb is almost always cheaper than a trial. Trials usually involve depositions, expert witness fees, attorney trial preparation; motion practice; briefs; and longer (sometimes numerous) court hearings due to the formality of trial procedure.
Many parties who proceed with conventional litigation are disillusioned afterward, feeling they were not heard or the decision failed to address all the issues. In “med/arb” cases, the mediator settles or decides every issue presented by the parties, because they are free to direct his or her attention to their concerns. In contrast, the judge usually seems unapproachable after making a decision. Moreover, a judge does not offer to sit down with the parties and mediate disputes. In many cases, an experienced family law attorney can offer more useful and imaginative options for settlement than are ever available in the court trial system. Moreover, the parties and counsel can hand pick their mediator. For this reason, most family court litigants have more confidence in a med/arb decision than one made by a judge who may have little or no background in family law.
Parties involved in complex divorces or custody and placement disputes should always seriously consider hiring an attorney. But this decision doesn’t necessarily have to cause the family any irreparable emotional or financial damage.