Dispute Resolution covers a spectrum of processes by which family law disputes may be resolved. The processes can be sequential, alternate or mixed. Each step can also have varying degree of formality, depending upon the circumstances of the matter.
Negotiation (consensual agreement directly negotiated by parties or by agent (attorney)
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Mediation (consensual agreement facilitated by neutral mediator; parties still have attorneys)
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Arbitration (private adjudicatory process; arbitration award is binding with essentially no appellate review)
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Court Litigation (traditional law suit decided by judge; decision binding but open to full appeal).
Each process has advantages and disadvantages which apply differently in every case. And, yes, the old maxim that no two cases are the same, is true. What works well in
one situation, fits poorly in the next.
Many people question whether arbitration, which has limited right of appeal, gives up too much by restricting appeal very narrow issues. This question has to be answered in context of the case. If a family law case turns on matters uncertain in the law, the right of full appeal can be very important. Much more common, however, are cases that turn on factual matters. In these cases, full appeal preserves little because of the standard of appellate review generally limits review of factual determinations in the trial court. In those cases, being able to pick your arbitrator/judge and select the schedule and degree of formality of decision, may be of much greater importance.
Another frequently asked question is whether mediation is binding? The answer is no and yes. A mediation agreement, itself, is not binding, unless and until it is followed with a formal written contract agreement signed by the parties. Then, the mediated result is binding, just as any other negotiated agreement will be.
What about oral agreements? Are they binding? Yes, oral agreements are binding, if you can prove whether the parties actually reached agreement and what the agreement terms were.
Where does Collaborative Law fit? Collaborative Law may involve negotiation or mediation, with stipulation that if agreement fails, the parties’ lawyers are replaced for later judicial decision in court or by arbitration. Many people find this stricture artificial and flawed, resulting in needless cost to the parties who then must retain new counsel to learn the case for it to proceed. The implicit, and in our view, wrongheaded assumption in collaborative law is that the lawyers, as lawyers, are the problem to be replaced where negotiations or mediation fail in a collaborative law process. This ignores logic and experience. First, a lawyer is the agent of the client; the client drives the train. If the train fails to stop at the station, it is because of the client/engineer, not the lawyer/conductor. Second, while there certainly can be instances where an agent can become a bump in the road to settlement, in our experience over the years, the best predictor to parties being able to reach settlement is their mutual good faith commitment to do so. Where that is present, reasonable compromise and settlement follow. Where one of the parties is intransigent, settlement become difficult, but the difficulty is with the party, not the lawyer, and there is certainly no reason why theother reasonable party should have to bear the additional cost to engage a new attorney to now become involved in the matter and have to learn what present counsel already knows. This is just an unnecessary duplication of time and cost.
