Alternatives to Trial

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July 15, 2013

The reasons for a client not wanting to go to trial are numerous, but a common theme is that the client would prefer to utilize a more collaborative and less formal method than a traditional adversarial trial. For these clients, I often recommend Alternative Dispute Resolution or ADR.

In family law, the three common forms of ADR are mediation, arbitration, and judicial settlement conferences. I am often asked, “Can we use mediation to resolve my divorce?” But it often becomes evident that clients are unclear about what mediation is or what it entails. The most distinctive and unique feature of mediation is it leaves the decision-making to the parties rather than to the legal system. In mediation, the parties, with the assistance of a neutral person, attempt to identify their points of agreement and disagreement, explore alternatives, and eventually reach accommodation. The focus and goal is to create a fair agreement in which both parties win. Mediation is particularly useful when children are involved because it encourages divorcing couples to recognize that while their relationship as husband and wife is coming to an end, their relationship as parents will continue. Mediation is also a good means for the couple to address how to resolve future conflicts through direct negotiation. Arbitration is an adjudicatory proceeding in which the parties contractually authorize a neutral third person to decide on a resolution of the issues.

The important feature of arbitration is that in arbitration the third person makes the decision whereas in mediation the parties make the decisions themselves. In procedure, arbitration is much like a trial, but less formal. Like a judge, an arbitrator hears the evidence, rules on motions, and makes a decision. Arbitration has the benefit that it is often quicker to get a decision than going to trial and in most cases it is financially cheaper than a trial. Arbitration can be “binding” or “non- binding.” In binding arbitration, the arbitrator’s decision is final and not appealable. In non- binding arbitration, if one of the parties is unhappy with the arbitrator’s decision, that party may appeal the decision to the court. The case will then go to trial and the presiding judge will not be informed about the arbitration other than the parties were unable to settle. The choice of binding arbitration over non-binding arbitration is essentially a preference of the parties for finality and efficiency.

A judicial settlement conference is a proceeding a judge conducts to help parties settle a lawsuit and is usually held in private in the judge’s chambers as opposed to the public courtroom. The parties and their lawyers attend the conference and the judge acts as the third party and encourages the parties to compromise and settle the dispute. Each judge has his or her own style of conducting a settlement conference but many judges use a caucus approach. Caucuses are where the judge meets individually with each party and the party’s attorney, usually meeting several times with each party. Caucusing allows the parties and the attorneys to speak privately and candidly with the judge about the case and options for reaching settlement. Judicial settlements, conferences and mediations have many similarities. However, a judicial settlement conference is different from mediation in that a judge or a retired judge may offer an opinion about the likely outcome of the case if it were to go to trial. Settlement conferences have the benefit that they are less expensive than formal trials and provide the parties with some control over the outcome.

The attorneys at Stahancyk, Kent & Hook P.C. are experienced in Alternative Dispute Resolution. If one of these methods sounds appealing to you, please call us to discuss whether mediation, arbitration, or a judicial settlement conference is appropriate for your case.