Alternative Dispute Resolution (ADR)
All issues in a case are determined one of two ways. Either the parties reach an agreement or the court makes a ruling at a hearing or trial. ADR options are different processes that may be used to help the parties reach an agreement so that court proceedings to obtain a ruling are not necessary. They are often used in family law cases to help settle a case and avoid the expense and emotional stress of a trial. There are several ADR options, more fully described below. A case may be referred to an ADR process by one or both of the parties, or by a ruling of the court. Some judges require that the parties attempt to settle their case through one of these ADR options before they will hear a trial in that case. If your judge requires mediation, I will not even be able to set your case for final hearing unless we have gone to mediation.
Mediation is the most common form of ADR used for a family law matter. A neutral person, called a mediator, meets with the parties to help facilitate an agreement. The attorneys are usually present at the mediation but are not required to be. You should discuss with your attorney whether it is important for the attorney to be present during your mediation. An agreement is not required and the mediator has no power to force the parties to settle. However, if an agreement is reached, the parties sign a written binding contract that is enforceable in court.
Collaborative Law is a process where the parties agree to resolve their dispute without going to court. This process is new and is most often used in a divorce. However, it can be applied in any type of case where the parties feel it will be beneficial. The purpose of collaborative law is to minimize the damage caused by a divorce and to assist the parties in making a productive transition. Each party hires a collaborative law attorney and signs an agreement promising to be respectful toward each other during the divorce and settlement negotiations. All terms of the divorce are decided during a process of private negotiation meetings with the parties and their attorneys. If necessary, other experts such as accountants or counselors may also attend the meetings to assist with financial or communication issues. The primary advantage to collaborative law is that the parties direct the terms of settlement, not the lawyers or the judge. This tends to result in more satisfaction for the parties, and fewer trips back to the courthouse in the future. If an agreement is not reached, or if one of the parties decides to go to court, both parties must discharge the collaborative attorneys and new litigation attorneys must be hired by the parties before going to court.
Arbitration is a process where a neutral person, called an arbitrator, makes the final decision in the case instead of a judge. Arbitration is not used very often in Texas family law cases. An advantage to arbitration may be the possibility of a quicker trial date, quicker final resolution, and privacy, but arbitration rulings are usually considered final and cannot be appealed.
A Mini Trial is a process where both attorneys present a summary of his or her side of the case to a neutral person who sits as the mini trial judge. The mini trial judge then meets with the attorneys and parties, gives a recommendation on how he would rule based on the evidence presented, and then the judge acts as a mediator to try to help the parties reach an agreement.
A Summary Jury Trial is a process where a short summary of the case is presented to a real jury. The jury members typically do not know this is not the real trial until after they have heard the case and made a ruling. After the jury has ruled, the parties continue negotiating to reach a settlement. If jury members agree, the attorneys may ask the jury how their decision was reached. Often, the ruling of the summary jury trial is a good indication as to what the final outcome will be in the real case.
A Private Judge Hearing is when a retired judge is hired to hear the case. The advantage to hiring a private judge is privacy and expediency in reaching a final decision. Rules of evidence apply and the trial may take place at any location agreed upon by the judge and the parties. The ruling of a private judge is subject to the rules of appeal.
This article is not intended to be legal advice and is not a substitute for legal representation by an attorney. You are encouraged to seek the advice of your own attorney to answer any specific legal questions you may have.