Family Law Alternative Dispute Resolution
The three most common forms of Alternative Dispute Resolution (ADR) in Family Law are Mediation, Arbitration, and Collaborative Family Law.
What is family law mediation?
Mediation is a process in which the parties agree to appoint a third-party neutral to assist them in attempting to reach a voluntary settlement. The neutral third party does not make a decision and the parties may terminate the process at any time. It is confidential and without prejudice. Where a voluntary settlement is achieved, it only becomes binding when the parties have concluded a settlement agreement.
What is the difference between family law mediation and family law arbitration?
Arbitration involves adjudication by a third-party neutral. While it is possible to structure arbitration to be non-binding, most arbitrations are designed to be binding. Arbitration will in most instances arise by agreement of the parties, either arising out of a pre-existing agreement or based on the specific terms of an arbitration agreement entered into after the dispute has arisen. Unless otherwise agreed, the terms of the applicable Arbitration Act will govern. The single most important distinction therefore is that the decision of the arbitrator, unless otherwise agreed, will be binding, and the decision may be entered on the court record.
Whereas mediation and neutral evaluation leave the decision making power in the hands of the disputants, arbitration involves a third party adjudicator whose decision is normally binding on the parties, and not merely advisory. Arbitration is like a private court. For some disputants, the confidentiality of the arbitration process will be paramount. For others, the speed and flexibility of the arbitration process will be attractive. For still others, the possibility of "tailor making" the arbitration process in terms of selecting the arbitrator and defining the formality or informality of the arbitration process will far outweigh the financial cost of the arbitrator.
- Mediation is voluntary; nothing happens without the parties' consent. The parties retain a high degree of control. Each party retains the right to withdraw at any time.
- Mediation does not involve a decision imposed by a judge or an arbitrator. Rather, the parties to a dispute, guided by the mediator, craft their own solutions which effectively meet their needs and interests.
- All communications in mediation are privileged and cannot be used as evidence. The parties control disclosure to the mediator and whether and to what extent matters disclosed to the mediator may be disclosed to other participants in the process.
- Mediation allows for creative solutions to the parties' dispute, often allowing all parties to come away from the mediation process with benefits unavailable through litigation or arbitration.
- The use of a mediator promotes reasonable dialogue by taking the bravado and posturing out of the settlement discussions. The emphasis is on working together to solve the joint problem.
What is the difference between a mediator and an arbitrator?
The mediator does not make a decision, but rather works with the parties to assist them to find a solution, satisfactory to them, of the dispute between them. An arbitrator, also a third-party neutral, makes a decision based on the arbitration agreement and the evidence presented in the arbitration proceedings, and the decision, unless otherwise agreed, is binding on the parties.
Arbitration involves selection of a third party who acts as a decision maker whose decision can, or in cases of binding arbitration, must be accepted by the parties. Typically, the arbitrator has a hearing in which the parties present evidence after which the arbitrator hands down an award. Arbitration can be a beneficial tool for resolving disputes if the parties insist on having a third party come up with a solution for them.
What is Mediation/Arbitration?
Mediation/Arbitration (Med/Arb) is where the disputing parties and the third party neutral attempt to reach a voluntary agreement through mediation. If mediation is unsuccessful, the parties may request arbitration by the same third party neutral. Either party may also decide to end the mediation at any time if the mediation is not productive. The mediator/arbitrator, however, has the ultimate power to decide that the mediation is over which will apply pressure on the participants to make a reasonable attempt at mediation in good faith. Mr. Andrew Feldstein can act as a mediator and as an arbitrator.
What is Collaborative Family Law?
Collaborative Family Law is often described as being a less adversarial process. The parties, their lawyers, and any other collaborative professionals make an agreement to resolve the issues in their matter while staying out of the court system. Thus, the Husband and Wife are each represented by their own counsel. If an agreement cannot be made, the parties’ lawyers may no longer represent them in their matrimonial matter if their matter goes to court. Mr. Andrew Feldstein and Ms. Stephanie Ansky are both qualified to act for clients in the Collaborative Family Law process. Often coaches may help manage the clients’ anxiety and conflict. A child specialist, who helps with child related issues, may also be involved.
