Who Is The Decision Maker? Litigation and Other Alternatives

By: David M. Collins, Jr.

Note: This article was originally written for a Continuing Legal Education Seminar sponsored by NBI in February, 2009 and the intended audience was experienced Family Law Attorneys. Although originally written for attorney’s, the information will be useful to anyone involved in a divorce, custody dispute or other family court case.

Methods for Resolving Disputes

Clients come to a family court lawyer with a variety of problems and issues related to their marriages and their children. These issues include custody, visitation, child support, property division and alimony. With the exception of the actual divorce between parties, most of these issues can be resolved using one or more than one of five methods. The five basic methods for resolving these issues and making decisions are the following:

• “Kitchen-Table Agreement”
• Mediation
• Collaborative Law
• Arbitration
• Litigation

These methods for resolving these issues and disputes follow a continuum from independent self-determined results to imposed decisions by an impartial decision maker.

Kitchen-Table Agreement

The Kitchen-Table Agreement is probably the most commonly used way to resolve the types of disputes that are handled in family court. A Kitchen-Table Agreement is nothing more than an agreement which two or more people reach through an informal give-and-take process. It’s called the “Kitchen-Table Agreement” because most often these agreements are made while sitting around a kitchen table, a restaurant table or some other location where two people who have a dispute can sit down, talk through their differences and find a solution.

These methods work best when the parties are on relatively equal footing and have the ability to communicate about difficult issues and problems. When they are able to do this the agreements most often reflect the parties’ unique situation and contain remedies that are most suitable to them.

One of the best features of these agreements is that they are unique to the parties’ situation. These agreements are not the cookie-cutter solutions which are imposed by judges or encouraged by lawyers. Because these agreements are unique to the parties, they are often much more satisfactory and longer lasting than decisions which are imposed on them by some third party.

Mediation

Mediation is one step above a Kitchen-Table Agreement. Mediation is simply taking the process that many people use informally while sitting around a kitchen table and making it more formalized by introducing a neutral third party. The role of the neutral third party is to help them identify issues, talk through their concerns, problems and possible solutions and (hopefully) to reach an agreement that resolves all of the issues between them. The third party neutral can also suggest alternative solutions to problems that the parties may never think of themselves.

There are three primary benefits to mediation over a Kitchen-Table Agreement. The first benefit is that the mediator will often have more experience in dealing with the types of issues being discussed and therefore is able to spot and bring to the parties’ attention issues that they may not have considered or ramifications to certain decisions that they may not be aware of. Second, the mediator helps the parties communicate. He or she does that by creating a safe environment, providing some structure and helping the parties express their needs, desires and proposed solutions in ways that are less likely to hurt feelings and cause a breakdown in communication between the parties.

Collaborative Law

The next option along the continuum is the Collaborative Law Process. In this process each of the parties is represented by an attorney who serves as a divorce coach. The attorneys do not participate in an adversarial manner; their role is to give advice, guidance and information to their client and to move the parties toward an agreement that resolves all the issues between them.

The ultimate goal of the Collaborative Law Process is to reach an informed agreement that both parties are satisfied with and committed to following in the future. The attorneys’ roles in the Collaborative Law Process are completely different than the traditional roles within the adversarial system. In essence the Collaborative Law Process is the opposite of litigation. In the Collaborative Law Process, the process consists of one extended settlement conference. The attorneys and the parties meet on multiple occasions, exchange information, discuss possible solutions, determine what additional information and resources may be needed and work toward an agreement. Litigation is a last resort and is discouraged. The rules governing the collaborative process, whether put in place by statute or by agreement, almost universally require that the attorneys involved in the collaborative process not be participants in any ensuing litigation if the settlement process breaks down. In the Collaborative Law Process, the end goal is an agreement, and a trial is an alternative if that goal cannot ultimately be reached.

This is completely different from litigation where the ultimate end is a trial where an impartial third party imposes a decision, and settlement negotiations are an alternative to avoid the trial.

Collaborative Law is a wonderful option in situations where the parties are committed to resolving their disputes by agreement. This process has more structure than the Kitchen-Table Agreement or mediation, provides professional guidance to the parties, and can extend over a longer period of time and therefore can result in a more complete, detailed agreement that all parties are committed to making work. Also, because of the involvement of attorneys and the structured process, this provides an opportunity for parties, who otherwise may not be able to reach an agreement around a kitchen table or at mediation because of differences in bargaining ability or positions, to work towards an agreement and avoid protracted litigation.

Arbitration

Arbitration is the first process in the continuum that involves having a decision imposed upon the parties. Arbitration is a process where the parties present their positions to a neutral third party who then renders a decision. It is different from litigation because the third-party neutral has no inherent decision making authority his or her authority is inferred on him by agreement of the parties.

Arbitration is typically an abbreviated trial. Often times the parties’ presentations are limited in nature and much of the information may be presented through documentation, affidavits, written materials and other media instead of through live witness testimony.

The benefits of arbitration over litigation are that it is typically faster and less expensive than traditional litigation. Also, because of the presentation of facts to the decision maker is done in a more informal manner, the hard feelings and animosity that typically follow litigation may be avoided.

Arbitration can be either binding or nonbinding. The difference between binding and nonbinding arbitration is the effect of the arbitrator’s decision. Since there is no mandatory or court sponsored family court arbitration, the effect of the final decision, the ability for it to be reviewed by the family court and other terms related to the conduct of the arbitration are governed by the parties’ agreement that they entered into prior to the arbitration.

In binding arbitration the parties agree in advance to be bound by the arbitrator’s decision and the arbitrator’s decision would act much like the decision of a judge in a traditional family court hearing. The arbitrator’s decision would be dispositive on all of the issues that he or she addresses. Like a family court judge’s decision, the parties will often make provisions in advance for a judicial review of the decision if one party is dissatisfied.

Nonbinding arbitration results in a decision that the parties can either agree to accept or reject. Nonbinding arbitration gives the parties the opportunity to present their cases, hear the other side, and obtain the opinion of a independent third-party neutral. Although nonbinding arbitration at first may not seem to have much use, it does have several benefits. These benefits include giving the parties the ability to “have their day in court” while reducing or eliminating the risk that they will be bound by an unfavorable result. It also allows the parties and their attorneys to get an independent analysis of the issues in their case and to receive an advisory opinion from a neutral third party. It can also motivate parties to reach an agreement between themselves by giving them a taste of litigation and the experience of having an uninterested party make decisions about some of the most important issues in their lives.

Arbitration can also be combined with mediation in a process called mediation\arbitration. In this process the parties begin by attempting to mediate an agreement. In the event that the parties cannot reach an agreement on some or all of the issues, the mediator changes roles and serves as an arbitrator who then makes decisions on the issues that have not been resolved. The result of this type of process is a hybrid document addressing all of the issues between the parties, portions of which were created by agreement and others decided by the third–party neutral. Again, the parties can agree in advance whether the decisions of the arbitrator are binding or nonbinding in nature. The benefit of this process is that the parties go into it knowing that at the conclusion of the process they will have decisions made on all of the issues between them. The hybrid nature of this process puts some pressure on the parties to be reasonable and to work diligently towards an agreement because of the authority they have given the third-party neutral to make decisions in the event they cannot agree.

Litigation

Litigation is the process that attorneys are most comfortable with. This is the process that we were trained and educated for and it is the process that we have developed our skills in. It is the process which most Americans accept as the normal way to resolve disputes.

Litigation will always have its place in our society for resolving disputes arising from family relationships including divorce, custody and adoption. The discussions included above describing other ways of bringing a resolution to these types of disputes is not intended to imply that litigation does not have its place or that it is not important in resolving these disputes. It is, however, designed to provide you with alternatives to traditional litigation that you can use in appropriate situations. I do not intend to imply by discussing each of these alternatives individually that they are mutually exclusive. On the contrary, each of these methods can be used while litigation is pending to resolve the issues in advance of trial. As a family court attorney you will want to consider all of your possible options for resolving your clients’ disputes and make use of the method or methods discussed above that best fit the facts and circumstances in each individual case.

Comments are closed.