CHAPTER 13
ALTERNATIVE DISPUTE
RESOLUTION
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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
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Chapter 13
Alternative Dispute
Resolution
The Paralegals 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
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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 familys
finances
A spouse is dealing with a mental illness
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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 Associations Model Standards of
Practice for Family and Divorce Mediation (Exhibit
13:1)
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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
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Chapter 13
Alternative Dispute
Resolution
Susans Progress Continues: J.D. Teaches the
ABCs of Family Mediation
Susans 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)
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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)
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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
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Chapter 13
Alternative Dispute
Resolution
Cons
Children should not be forced to participate if they dont
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)
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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
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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
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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
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Chapter 13
Alternative Dispute
Resolution
Collaborative Law: A Legal Hybrid
Collaborative law
Collaborative Law Participation Agreement
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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?
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