Clients using that tried and true legal research tool—Google—will read that less than 10 percent of divorce cases actually go to trial. The percentages are similar for custody and support disputes between unmarried parents. We all know that most of those folks who did not go to trial did not reconcile and stay together, so the question becomes how did they get from Point A (wild uncertainty but I can’t stay with that person another minute) to Point C or D or later (the case is done and we have a signed deal)? The answer, in short, is that some form(s) of alternate dispute resolution (ADR) were used to avoid the need for airing it all in court. It is important for us to keep in mind that in most instances litigation and ADR do not represent an either/or proposition but different steps on the continuum of measures lawyers take to bring a case to resolution. While most cases settle, none of us know at the outset whether the new client who just retained the firm will or won’t be in that percentage; so both litigation and ADR skills are typically necessary.
The image of making a demand and if it isn’t accepted marching away saying “We’ll see you in court” plays better on TV than it does in the lives of our clients. In many states the court requires that the parties, and their lawyers, have engaged in some form of ADR before they get to declare an impasse and tell it all to the judge. As well, once clients hear how long it will be before the judge will hear their case and/or how much the trial preparation process will cost, they often want to know about the available alternatives so they can get it over with sooner.
In broad terms, most of the measures we employ to bring a case to resolution without a trial represent some form of ADR. In this issue the authors discuss some of the more commonly used methods. Our authors have attempted to provide broad, general coverage. As a result of some of the state-to-state differences in protocol and nomenclature, terminology may not exactly match what happens in every state. Nevertheless, the ideas and approaches represent invaluable tools for all of us.
Even before “alternative facts” invaded the nightly news, differing views of events and circumstances were commonplace in the realm of family law. In her article by the same name, The Hon. Anne Dranginis (Ret.) asks the question, “Is Truth Essential in Mediation?” Acknowledging the difference between “the truth” and burden of proof in litigation versus mediation, she explores “truth” in the context of mediation, especially when opposing parties have diametrically opposed versions of reality and the history of their relationship in a family law matter.
In “Mediation as the Default Approach for Family Dispute Resolution,” Forrest S. Mosten and Lara Traum note the mindset shift taking place among attorneys, members of the judiciary, and legislators who are embracing mediation in a broad array of family situations. From prenuptial, postnuptial, and cohabitation agreements to elder care, adoption, and more, the authors encourage family law attorneys to expand their toolkits to include mediation but cautions them to familiarize themselves with mediation confidentiality rules in their states, including the ABA Model Standards for Mediators in Standard VII.
Citing our underfunded, understaffed, backlogged court system and the lack judges with training about the unique aspects of family law, especially child custody, former Reporter for the Uniform Family Law Arbitration Act, Linda D. Elrod, provides a brief history of the use of arbitration in family law in her article “Arbitration of Child-Related Issues and the Uniform Family Law Arbitration Act.” She suggests that arbitration, using the standards put forth in the Uniform Family Law Arbitration Act, can help families resolve disputes privately and more quickly and affordably.
In “Family Law Arbitration: An Underutilized ADR Option,” Carolyn Moran Zack answers common questions about family law arbitration, such as “Why should we pay to arbitrate when the court will decide the matter for free?” and “If the parties agree to a private forum for their dispute, how will they be able to obtain enforcement of their award?” She also touts the roadmap that the Uniform Family Law Arbitration Act provides for the proper resolution of unique family law issues and the guardrails it provides for vulnerable families.
In “Going Private: Appointing a Judge Pro Tem” by Jennifer R. Morra, readers will learn the important distinction between arbitration and appointing a private judge or a judge pro tem in a family law case. Spoiler: The former is confidential, doesn’t have to follow the procedural and evidentiary rules of the parties’ jurisdiction, and is non-appealable, while the latter is less confidential, although more confidential than a traditional courtroom proceeding, requires following all the same procedural and evidentiary rules that parties would if they were in court, and may be appealable. Jennifer gives practice tips for counseling clients on the pros and cons of resolving a family law matter via arbitration, a private judge, or the public system and what to look for when selecting a private judge, including disclosures to avoid conflicts of interest.
Jonathan W. Wolfe uses his home state of New Jersey, where the Chief Justice of the New Jersey Supreme Court has announced that six of New Jersey’s 21 counties will be suspending virtually all divorce trials “until further notice” due to judicial vacancies, as a case study in “The Dual Role Arbitration and Use of a Special Master to Move Your Family Law Cases to Resolution.” He explains that special masters are becoming more common in family law cases and can be particularly helpful in cases involving complex finances and sophisticated discovery issues. He cautions that the court overseeing a family matter still has the final say on whether a special master should be appointed and that rulings made by a special master are subject to appeal to the trial court.
Alexander D. Jones and Stephanie L. Curtin, in an article called “Parent Coordination” explain what a parent coordinator is and can do in a family law case, what qualifications a parent coordinator should have, which situations most lend themselves to help from a parent coordinator, and when a parent coordinator may not be appropriate, such as cases involving domestic violence and substance abuse. They note practical considerations when appointing a parent coordinator, such as the person’s availability and fee.
D. Susanne Snearly takes us through “Collaborative Divorce: Where We Were, Where We Are, Where We are Going,” including her top 10 predictions for which practice areas will see applications of collaborate law. She points to the 22 states and Washington, D.C., that have enacted the Uniform Law Commission’s Uniform Collaborative Law Act and the relatively rapid spread of collaborative family law to Canada, Europe, and Australia since the concept was first introduced in the 1990s as proof that lawyers should familiarize themselves with this approach to family law matter resolution, even if they don’t plan to specialize in it.
Rochelle B. Grossman and Carolyn Moran Zack pose and strive to answer the question, “Should the Mediator Draft the Divorce Agreement?” They identify the potential risks when a mediator-attorney drafts a divorce agreement and suggest options to avoid or limit any pitfalls in the process. They explain that some of the same considerations regarding whether to draft a divorce agreement may apply to other family law agreements, including support and custody.