The same issues involved in a Dissolution of Marriage action may be resolved in ways other than through “traditional” means. These other ways to resolve contested issues are known as Alternative Dispute Resolution. Alternative Dispute Resolution generally includes Mediation, Arbitration and Private Master Resolution.
Mediation is a process in which the parties work with a third party, mediator, to assist the parties in resolving issues related to their marital dissolution. A Mediator is a mutually chosen third party with expertise in facilitating discussions between the parties to reach solutions of the outstanding issues. Mediators do not decide issues, but enable the parties to resolve their issues face to face in a manner consistent with the best interests of the family. Mediators may also work with the parties and their respective attorneys. The mediation process is not binding on the parties. So long as the parties agree, the discussions in mediation are confidential and are not to be used at a later trial if the case is not resolved in mediation. Mediation may be a less costly and more expeditious alternative to resolve your case.
Mediation directly with the parties entails the parties having periodic meetings with the Mediator to identify the issues to be resolved and then to address each issue specifically and in the context of the entire case resolution. Parties are advised to each have mediation counsel (often referred to as “reviewing counsel”) to confer with during the process, but are not required to do so. Once an agreement is reached the Mediator prepares the written document containing the terms of the agreement. The written document must be carefully reviewed by the parties and with their respective reviewing counsel.
In mediation there must be full financial disclosure by each party which is provided in an informal manner. Ultimately, however, each party must sign a financial affidavit under oath affirming the truth of their financial disclosure. The financial disclosure and affidavit are relied upon by the parties when assessing the financial circumstances in order to arrive at a fair and equitable settlement. When the agreement is presented to the Court at the time of the dissolution of marriage the Court must find that it is fair and equitable under the circumstances of the parties.
The attorneys at Rubin & Eldrich, P.C. are trained mediators and frequently serve as “reviewing counsel.”
Arbitration is another form of Alternative Dispute Resolution. A mutually agreed upon Arbitrator resolves the contested issues between the parties with their attorneys in a trial-like process but with a less formal procedure. The arbitration process runs parallel to the Dissolution of Marriage action and therefore utilizes the formal discovery process. After a hearing before an arbitrator conducted pursuant to standard rules which the parties agree upon, the arbitrator presents a decision which is binding upon the parties, unless the parties have agreed that the decision will be non-binding. Not only may the arbitration process be less costly than a Court trial, it may also be a more expeditious way to conclude the legal action.
PRIVATE MASTER RESOLUTION
If parties are represented by attorneys, and have reached an impasse with regards to any issues related to the dissolution of marriage action, they may choose to enter into discussions with a mutually chosen third party with expertise in facilitating negotiations and reaching resolutions to the outstanding issues. This procedure is not part of the official court litigation process; however, the Court will allow a reasonable time-frame during which the Private Master Resolution proceedings may occur. The parties may agree that all oral and written communications made to the Private Master by them and/or their respective attorneys while participating in the process be privileged and inadmissible as evidence in the Court proceeding. The Private Master is able to meet for extended periods of time with the parties and their lawyers in order to facilitate direct negotiation and dispute resolution. The Private Master is usually an experienced family or matrimonial law practitioner. Private Special Mastering as this process is called is best done when the case has been prepared with all financial discovery completed.