If you find yourself facing a family law matter, you might first ask, “How do I avoid going to court?” The term “alternative dispute resolution” (or “ADR”) is often used to describe conflict resolution without going to court. Parties can use ADR for any family law issue, whether it’s a divorce, child custody dispute, or support issues. But, there is a lot of confusion about what ADR practice actually entails. Professionals and parties alike often use words like “mediation,” “arbitration,” and “private judging” interchangeably. However, these terms could not be more different.
The main theme of all of these ADR options is that the mediator, arbitrator, or private judge acts as a neutral. They are not there to advocate for or legally advise either party. Rather, they are there to get the parties to a resolution, or settlement. However, the powers and abilities that they have depends entirely on which process you choose.
Mediation is typically what most people think of when they think of staying out of court and reaching an agreement. A mediator’s job is to help the parties communicate with each other so they reach an agreement themselves. A mediator does not make any orders or decisions for the parties. Rather, a mediator facilitates an effective dialogue between the parties. Sometimes, a mediator might provide legal information about what the law says, but will never provide legal advice to either party. Mediation allows parties to never go to court, because it is a private process outside of court. Mediation is usually the most informal process of these three options.
Arbitration is similar to a trial at court. However, the arbitrator is the one who makes the decision rather than a public judge. Each side will present their case to the arbitrator. They might use the same procedural tools as a court process might require, such as discovery and evidence. An arbitrator then makes a decision based on each side’s case. Arbitration takes place outside of court, and is usually more relaxed and informal than the courtroom.
Parties might choose arbitration because they want a private, third-party neutral to make a decision for them, but don’t want to set foot inside a courtroom. There are two kinds of arbitration – either binding or non-binding. Binding arbitration means that the arbitrator’s decision is final, and the parties must accept that decision. However, non-binding arbitration means that if the parties disagree with the arbitrator’s decision, they can go back into court to have a judge decide.
Private judging is very similar to arbitration, except a private judge has the ability to make binding court orders the same way a public judge does. With private judging, parties generally go through the same process as litigation. This might include procedures like filing a motion at court, but a private judge would determine the case instead.
A private judge is usually much more accessible than a public judge. This is because private judges are typically experienced family law attorneys, or retired former judges. Their schedules tend to be more flexible than the impacted calendars of current sitting judges. Private judges are also able to devote more focus to one case at a time. With court, a matter may take several months before a court even has time to hear it. Parties might choose private judging if they want to have the structure and formalities of litigation, but don’t want to go through the courtroom or deal with the wait times of the court’s calendar.
There are many different options for conflict resolution. It’s important to know which one suits your personal situation best, as each process has its own pros and cons. It’s a good idea to discuss your options with a knowledgeable family law attorney who is skilled with ADR practice. He or she can help you navigate the intricacies of a family law matter, no matter which process you choose.