Family law practitioners have sophisticated tools for helping clients settle their cases. Most will settle if the couple can start using collaborative practice or facilitative mediation early.
There are some cases where one partner is so angry about the break-up or is so frightened or threatened about the loss of the relationship that the case will not settle. You might have gotten close a few times. They may have even agreed on a settlement and then withdraw agreement before they sign the contract.
What to do when you wish to avoid a trial? There are two methodologies that can bring such cases to closure.
Evaluative Mediation. A trained mediator will hear the facts of the case, apply the law and some creativity and suggest outcomes to the parties that resolve their issues. This is different from facilitative mediation where the mediator attempts to help the couple reach their own solutions. The mediator will also discuss with the parties the reason for his/her recommendations. For the difficult to convince spouse, the mediator will be prepared to consider options and why certain options are more favorable.
It is generally wise to have at least a rough draft of a mediation agreement prepared so that if agreement is reached, someone can complete the agreement and both parties can sign right away. The mediator can help fine tune the language and be certain that both parties and their attorneys sign.
Arbitration. The parties agree on an attorney who will hear the case and decide the issues. The attorneys will draft an order that specifies who will act as arbitrator and what issues that person will consider. Arbitrators can decide all issues pertaining to a divorce, provided they have received specific authorization. After the judge assigned to the case signs the order, the arbitrator has quasi-judicial immunity (meaning that the parties cannot sue the arbitrator – much like you cannot sue the judge) and the arbitrator has the same limitations on deciding the case as a judge would. The order generally states the specific dates that the arbitration will take place and the location of the arbitration, which is usually the conference room in the arbitrator’s office or of one of the parties’ attorneys.
The arbitration hearing is less formal than a court hearing, but the rules of evidence still apply. Attorneys ask questions of the witnesses and they provide answers. Evidence is submitted using the same procedure as in a court room. The parties do not address the arbitrator and tell their story in their own way. Arbitrators are required to record the portion of the hearing pertaining to child custody issues, but many record the entire hearing. After the hearing is concluded, the arbitrator will issue a decision called an award. The parties and their attorneys will have time to notify the arbitrator of any errors that s/he may have made. The arbitrator has discretion to correct the decision and issue the final award to the parties and their attorneys. If the parties will agree, the award is submitted to the judge who signs it as the judgment of the court. One of the parties can object to the award. However, there is very limited appeal from the decision of the arbitrator. For example, the objecting party needs to convince the judge that the arbitrator was bias against that party or the arbitrator exceeded the authority given in the order appointing him/her. The judge can review the decision of the arbitrator. Otherwise, the judge is bound to enter the award as a judgment.
People like arbitration because it permits you to schedule set times for conducting the hearing. The chance that the hearing will be cut short because of competing hearings or other interruptions is unlikely. It is private, since it occurs in an attorney’s conference room. A disadvantage is that you do not get a hearing before the judge and you have to pay the arbitrator for his/her time. However, you generally get to hearing sooner and get a decision more quickly than if a judge hears the case.
For parties who are frustrated with the pace of their cases and would like to bring the case to a final settlement or decision, evaluative mediation or arbitration provide viable methods to achieving closure.