What types of Alternative Dispute Resolution (ADR) are available?

Rule 114 defines the Alternative Dispute Resolution (ADR) process and sets forth numerous different types of Alternative Dispute Resolution from arbitration or the use of a Consensual Special Magistrate, or Early Neutral Evaluation (ENE) in which a neutral evaluator meets with the parties and their attorneys and gives an assessment of the strengths and weaknesses of the case after reviewing the facts and information. A Neutral is an individual who presides over an Alternative Dispute Resolution (ADR) process in attempting and proceeding with the Alternative Dispute Resolution process. There are requirements and training required to be a Alternative Dispute Resolution Neutral or Mediator. In many cases Courts and Judges in select counties strongly encourage the early involvement of a Neutral in resolving or narrowing the issues in a case. In deciding what Alternative Dispute Resolution (ADR) is best it is important to consult with a family law attorney who is familiar with the various alternatives which can vary from county to county. In general the Alternative Dispute Resolution (ADR) process is a non-binding process that is totally confidential unless the parties otherwise consent.

How is a Mediator or Neutral Evaluator Selected?

The selection of the Mediator, a Rule 114 Neutral, or Early Neutral Evaluation (ENE), and choosing the appropriate evaluator, is very important to the likelihood of success in making progress in this process. The mediation training required to be a Rule 114 Neutral or Mediator is not extensive and does not require extensive knowledge of present Minnesota law or Minnesota Family Law or require extensive experience. It is therefore, crucial to have the assistance of an experienced family law attorney to be involved in the selection process when deciding on the Alternative Dispute Resolution process and in selecting a Rule 114 Neutral or Mediator or Early Neutral Evaluator. In many cases there is also a wide range of costs and fees that are charged, which should be considered only as part of the process in selecting a Mediator, or Rule 114 Neutral, as the experience, knowledge and abilities of the Mediator or the Rule 114 Neutral is critical to the prospects to making successful progress in resolving issues. If parties are unable to agree on either a Neutral or a Mediator, a Court may order or select a qualified Neutral.

What should I know before starting Mediation or working with a Neutral Evaluator?

In general it is most beneficial before proceeding with a Mediator or with a Neutral Evaluator that both parties are confident that they have all necessary financial information concerning both parties income, the parties' assets, as well as the parties' debts and they have had an opportunity to discuss the strengths and weaknesses of their case with a family law lawyer. Although the Alternative Dispute Resolution (ADR) process is confidential, decisions that are made in the process often times can be difficult to overcome in attempting to finalize a settlement. It is therefore essential that an experienced family law attorney be consulted before a party proceeds with the Alternative Dispute Resolution (ADR) process or Mediation. A Rule 114 Neutral or Mediator in general, can not give an unrepresented party legal advice and should not be relied upon in attempting to reach a settlement in the Alternative Dispute Resolution (ADR) or Mediation process.

In general, it is highly recommended, that a party consult with and retain a divorce or family law attorney prior to proceeding with mediation or participating in the Alternative Dispute Resolution (ADR) process. Fair and equitable settlements cannot be reached without a party understanding their legal rights and strengths and weaknesses of their case before entering into negotiations to resolve a divorce and all related issues. If the party proceeds to mediation without discussing their case with a divorce lawyer they may reach agreements that are unfair, contrary to law, or will limit their ability to be self-sufficient or impact them in other ways that they do not understand under Minnesota law. A Trial Court Judge also must ultimately approve the terms of a settlement and there is a much higher likelihood the settlement will be approved by the Court, if the Judge, is aware, both parties were represented by counsel and understood and were aware of their legal rights at the time the settlement was reached.

It is also recommended that the attorneys be involved in the Mediation or Alternative Dispute Resolution (ADR) process to ensure their client's rights are protected and a fair and equitable settlement is reached and both parties have entered into the agreement knowing their rights and this will lead to a higher likelihood that the Agreement will ultimately be reduce to a final binding settlement.

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