Courtrooms find the truth. That is the purpose of the legal process. That means one side is “right" and one is “wrong." Court is an adversarial process where one party wins and the other loses. In some situations, such as criminal law, this procedure works. The adversarial process works well when the questions are: What happened? And who did it?
Other times, the adversarial process is harmful to the parties. In a divorce case, the issue is not who is right or wrong but what is fair. Sometimes, the parties may be arguing over matters they could resolve faster themselves than in court. In landlord-tenant disputes, the landlord needs the rent as soon as possible, and the tenant wants a resolution right away. Instead of wasting time on court hearings, judges may suggest alternative dispute resolution.
Alternative Dispute Resolution
Alternative dispute resolution (ADR) is the umbrella term for informal procedures used to resolve disputes outside of a courtroom. ADR involves the parties (and sometimes their attorneys) meeting with a neutral third party to discuss alternative means of resolving a legal dispute. The best-known types of ADR are arbitration, mediation, and collaborative law.
Collaborative law offers the most legally structured option to parties with a legal dispute. In collaborative practice, the parties and their attorneys agree to carry out the litigation process without going to court. The best example of this is the collaborative divorce.
During divorce litigation, divorcing couples must exchange financial information and other documents, a process called “discovery." Normally, a family law attorney files documents with the court, and the other party can object. In a collaborative divorce, the divorce attorneys agree to exchange documents and resolve any objections without going to court.
The collaborative divorce attorneys also agree that if the process breaks down and the parties end up in court, they will bow out of the divorce. The parties must find new lawyers for the remainder of the divorce. This way, all parties have an interest in making the collaborative divorce process work.
The collaborative law process is effective for other types of law besides divorce. If the parties are willing and able to work together without court orders and deal in good faith with one another, this process can shorten the time needed to resolve many legal matters.
In a typical mediation session, the parties and their attorneys meet with a neutral third party to discuss the problem. Each party describes their side of the issue, what they think caused it, and why they believe they are correct. Then they each offer solutions for resolving the problem.
Mediation negotiations are confidential. The parties sign a participation agreement before negotiations. They agree that whatever is discussed cannot be used later if the case goes to court. This includes information about the case, settlement offers, and so on. The mediator cannot be called as a witness. The only exceptions are when the mediator learns of certain crimes. In some states, mediators are mandated reporters. They must report instances of child abuse, elder abuse, and sexual assault.
Judges often order mediation in family law and small claims cases as part of the court process. Mediation takes less time than a traditional hearing. In these types of cases, the issue is not who is right or wrong but how each side can benefit from the resolution.
For instance, in a divorce mediation, the parties may have an issue over child custody. A traditional divorce would have them argue before a judge, who would issue an order. Family mediation makes them discuss the matter together and offer alternatives they both can live with.
Pros and Cons of Collaborative Law and Mediation
Mediation and collaborative law are effective when all parties want them to work. When parties negotiate in bad faith, ADR cannot resolve an issue. If one party is forced into negotiations, they are not motivated to find mutually beneficial solutions.
Good Areas for ADR
Some of the better practice areas for mediation and collaborative law include:
- Divorce: Especially discussions of child custody, child support, property division, and alimony or spousal support
- Small claims cases: Particularly breach of contract, landlord/tenant disputes, and neighborhood nuisance complaints
- Small business disputes
Poor Areas for ADR
Some cases cannot be resolved with mediation or collaboration. The courts are there to find the truth, which requires the court process.
- Criminal law cases: Mediation is useful after sentencing if restitution is part of the sentence, especially in juvenile crimes
- Personal injury claims: These may go to arbitration, but that is a different process more closely resembling court proceedings than mediation
- Any case with domestic violence allegations: Mental health professionals believe that mediation proceedings between a victim and an abuser aggravate the abusive relationship rather than help
Mediation does not need a mediation attorney, although parties may bring their own attorneys if they choose. Mediation counselors are available as third-party facilitators for those who wish to make their own decisions in disputes. Facilitators cannot give legal advice about the case. If the parties need a legal opinion or want a binding settlement agreement, they may need an attorney.
Collaborative law does require a collaborative law attorney. The nature of the agreement means collaborative professionals must agree to end their association with the case if it goes to court.
After Mediation and Collaborative Law
Once the mediation process is complete, the parties receive a settlement agreement. If they want it to be binding, they still must go to court to have a judge sign it. A mediated agreement is a contract. It can be enforced like a contract if the parties agree.
A collaborative divorce ends like a traditional divorce. The parties will need to have the divorce decree signed by the judge. Their marital settlement agreement will need to be affirmed by the family law judge. The greatest benefit to both parties is that they did the negotiating and mediation work themselves and reached the agreement together.