CHAPTER 13 ALTERNATIVE DISPUTE RESOLUTION 2006 Thomson Delmar

CHAPTER 13 ALTERNATIVE DISPUTE RESOLUTION © 2006 Thomson Delmar Learning. All Right Reserved.

Chapter 13 Alternative Dispute Resolution • Alternative to Litigation • Alternative Dispute Resolution – How it is used in Court systems today • What Exactly is ADR? • Mediation • Arbitration © 2006 Thomson Delmar Learning. All Right Reserved.

Chapter 13 Alternative Dispute Resolution • The Paralegal’s Role in ADR • Interview parties and witnesses • Review documents and depositions during discovery • Organize information and exhibits • Communicate with the court, witnesses and parties • Paralegal as a mediator • Check your state to see if the state allows it • Paralegal can assist an attorney with the paperwork involved © 2006 Thomson Delmar Learning. All Right Reserved.

Chapter 13 Alternative Dispute Resolution • Mediation to Deal with Family Law Issues • The mediation role in divorce – Mediation verses the adversarial approach • When Not to Mediate • Mediation is usually not effective – If there is domestic violence present – Only one spouse is willing to mediate – Only one spouse has the information about the family’s finances – A spouse is dealing with a mental illness © 2006 Thomson Delmar Learning. All Right Reserved.

Chapter 13 Alternative Dispute Resolution • Mediation Guidelines • Four model standards for mediators – Knowledge of family law – Knowledge of and training in the impact of family conflict in parents, children and interested third parties including knowledge of child development and domestic abuse – Education and training specific to the process of mediation – The ability to recognize the impact of culture and diversity • The American Bar Association’s Model Standards of Practice for Family and Divorce Mediation (Exhibit 13: 1) © 2006 Thomson Delmar Learning. All Right Reserved.

Chapter 13 Alternative Dispute Resolution • What Family Mediation Can and Cannot Do • Mediation can: – Aid in dispute resolution – Promote self determination • Mediation cannot: – Act as mental health therapy – Family counseling – Legal representation © 2006 Thomson Delmar Learning. All Right Reserved.

Chapter 13 Alternative Dispute Resolution • Susan’s Progress Continues: J. D. Teaches the ABC’s of Family Mediation • Susan’s First Mediation Lesson • What a mediator does • Mediation is less adversarial • One Family Struggles To Mediate a Settlement • The introductory letter (Exhibit 13: 2) • The mediation questionnaire (Exhibit 13: 3) © 2006 Thomson Delmar Learning. All Right Reserved.

Chapter 13 Alternative Dispute Resolution • Filling Out the Questionnaire • Beforehand, saves time and money • During the session, allows the mediator to ask the questions • Make sure all property is disclosed – If not, the court will most likely find the agreement invalid • The First Mediation Appointment • Mediation Retainer Agreement – The agreement (Exhibit 13: 3) © 2006 Thomson Delmar Learning. All Right Reserved.

Chapter 13 Alternative Dispute Resolution • Concentrating on the Financial Ramifications of Divorce • Moving Steadily Toward Agreement • Concentrating on the Children • Including the Children • Pros – Allowing the children to participate in decisions that affect them – Allowing the children to understand the process of what is happening in their lives © 2006 Thomson Delmar Learning. All Right Reserved.

Chapter 13 Alternative Dispute Resolution • Cons – Children should not be forced to participate if they don’t want to – Children should not witness their parents arguing • The Mediated Settlement Agreement Reviewed • Where To Go From Here: Pro Se or Attorney • One attorney cannot represent both parties • Review attorneys • Arbitration Instead of the Courthouse? • Sample Arbitration Clause (Exhibit 13: 4) © 2006 Thomson Delmar Learning. All Right Reserved.

Chapter 13 Alternative Dispute Resolution • Broad Powers • Arbitrators – Broader powers than judges – Are not limited to strict rules of evidence, including hearsay rules – Authority to hear witnesses out of turn – Their decision is usually final and cannot be appealed • Binding arbitration © 2006 Thomson Delmar Learning. All Right Reserved.

Chapter 13 Alternative Dispute Resolution • Positives Verses Negatives of Arbitration • Positives: – Substantial savings – attorney fees reduced because the average hearing is shorter than a trial – Final awards are usually reached quickly – Hearings held in a private conference room as opposed to the courtroom © 2006 Thomson Delmar Learning. All Right Reserved.

Chapter 13 Alternative Dispute Resolution • Negatives: – Arbitrators do not need to give a formal reason for their decision – Arbitrators are not required to keep formal record of the hearings – Arbitrator decision is binding and cannot be appealed – If only one party has control of the financial documents the other spouse will be at an extreme disadvantage with arbitration © 2006 Thomson Delmar Learning. All Right Reserved.

Chapter 13 Alternative Dispute Resolution • Collaborative Law: A Legal Hybrid • Collaborative law • Collaborative Law Participation Agreement © 2006 Thomson Delmar Learning. All Right Reserved.

Chapter 13 Alternative Dispute Resolution • Ethics Alert: • Is there a conflict of interest if J. D. looks over the mediation settlement agreement for both parties involved? © 2006 Thomson Delmar Learning. All Right Reserved.