Alternative Dispute Resolution

Alternative Dispute Resolution – Minnesota General Rules of Practice 114 

Minnesota courts require that parties participate in some form of alternative dispute resolution (ADR) before a matter is tried before the Court.  The most common form of ADR in family law is mediation followed by the early neutral evaluation process.  The court cannot require parties to use an early neutral evaluation process but can require parties to attend mediation.  The requirement to attend mediation may be waived if there has been any domestic abuse between the parties.  Mediation can still be successful in matters where there has been domestic abuse if both parties have counsel to help assure that the abused party feels empowered to discuss the issues and not be intimidated by the other party. 

Mediation: 

In mediation a third party facilitates a discussion of issues (helps the parties negotiate) to see if there is some common ground on which the parties can reconcile their differences to reach an agreement.  Mediation is confidential such that any proposals made during mediation cannot be disclosed to a judge at a later date.  A mediator is also bound by confidentiality and cannot be called as a witness before the court.  A mediator does not represent either party and cannot give legal advice. 

Mediation can occur in a roundtable type discussion or shuttle diplomacy style in which the parties are placed in two separate rooms and the mediator meets separately with each party.  While a roundtable type of mediation may move along more quickly it may not be as effective if there is an inability on behalf of the parties to communicate effectively in front of one another or one party shuts down due to feelings of intimidation by the other party. 

Parties can attend mediation with or without their attorneys.  If parties attend mediation without their attorneys a memo or letter is usually prepared by the mediator which the parties can then use to prepare a final agreement themselves or through their attorneys.  A mediator does not make a ruling or decision for the parties but instead it is an opportunity for the parties to form their own agreement with the assistance of a neutral party.  An agreement reached at mediation is not binding or enforceable until it is submitted as an agreement (Stipulation) with an Order to the court for review and approval by a Judge. 

Early Neutral Evaluation:

Early neutral evaluations (ENE) can be done for financial issues such as division of property, debt, business valuations and support, or done for custody/parenting time issues.  Financial ENEs take place with one evaluator.  Social or custody/parenting time ENEs take place between two evaluators with one being a male and the other female.  ENEs are a fairly new form of ADR and until just a few years ago were only being done in Hennepin County.  Many counties throughout Minnesota now have pilot programs taking place with only a few counties don’t offering the program at all.  In those counties that don’t offer early neutral evaluations the parties can still use the ENE process independent of the court by mutual agreement.    

ENEs are intended to take place early in the dissolution process as a way of short cutting the process to save time, money, and stress between the parties.  Initial ENEs are scheduled for a 3 hour time period with subsequent follow-up ENEs sessions if necessary.  Charges for ENEs are shared by the parties and are set on a sliding fee scale.  If the parties are represented by counsel a financial evaluator may hold a telephone conference with the attorneys before the ENE to determine what the financial issues are and to request that the parties each disclose financial documents prior to the first meeting. 

During a financial ENE the evaluator will review the financial documents produced and make inquiries of the parties.  Once the evaluator believes they have sufficient information he/she will give the parties his/her evaluation of how they believe a judge would divide the assets and liabilities or what support should be paid by one party to the other.  Once the parties have the evaluator’s opinion the evaluator may assist the parties in settlement negotiations in an effort to get the matter settled.

Social or parenting time/custody ENEs (social ENEs) focus on what custody designations (physical and legal) and parenting time schedule is in the children’s best interest.  Social ENE evaluators come from a variety of professions including:  psychologist, social workers, family and marriage therapists, and attorneys.  During the social ENE process the evaluators will ask the parties to discuss their relationship with the children, the parenting that each has been involved in during the marriage, any special issues regarding the children (health, behavior and/or education), concerns about the other parent (substance or domestic abuse), and what each of the parties wants for their children.  After obtaining information from the parties (usually 1 ½ - 2 hours of the session), the evaluators will leave the meeting for 20-30 minutes and then return with a recommendation for custody and parenting time that they believe serves the best interest of the children.  Once the parties have the evaluators’ opinions then the parties and their attorneys meet privately to discuss the opinions and determine if a client wants to move forward with those opinions.  The parties and the attorneys then return to the meeting with the evaluators to see if any agreements can be reached to finalize custody and parenting time or to set some temporary schedules.  The evaluators may schedule a second session if the parties elect to leave the social ENE process open to try out temporary schedules or if the evaluators believe they need additional information to give their opinions such as chemical usage assessments, anger assessments, medical/mental health records or testing, etc. 

Like mediation, the ENE process is confidential.  These matters are intended to be confidential so that the parties have the freedom to negotiate while knowing that if an agreement cannot be reached the proposals exchanged cannot be provided to the Judge.

Alternative dispute resolution may assist parties in resolving their disputes even in high conflict cases.   ADR processes can be used before or after attorneys become involved and they can start before or after litigation is started.  When contacting a qualified mediator or neutral you need to let them know right away that you are contacting them for services as a neutral and not for individual representation or individual legal advice.