In family law cases, as well as in other civil matters as a whole, the Courts generally require the parties to try and work out their differences without needing to go to trial. The Courts make use of a number of different methods to try as well as resolve the disagreements between parties, without the need for Court intervention. Those numerous techniques are universally described as Alternative Dispute Resolution. The techniques utilized are frequently described as facilitation, mediation and also arbitration. Whether you have a divorce, child custody case, child support, spousal support or other family law issue, chances are great you will be ordered to take part in alternative dispute resolution by your Judge.

What is facilitation/mediation?: The process of facilitation/mediation is rather simple to explain, however is complex in nature. At an arbitration, the parties meet informally with a lawyer or court designated mediator, and attempt to negotiate a resolution with the assistance or assistance of a neutral arbitrator. As a general policy, lawyers and also parties are motivated to submit recaps of what they are seeking a as an outcome to the arbitration, but that is not a requirement. Some moderators have all the parties sit together in one area. Other mediators have the parties sit in different rooms and the conciliator goes back and forth between them, presenting positions and also negotiating a negotiation. Some arbitrations require added sessions and can not be finished in one attempt. When mediation achieves success, the conciliator needs to either make a recording of the agreement with the parties, after which the parties need to recognize that they remain in contract and that they comprehended the agreement and have agreed to the terms, or, the moderator has to put together a writing of the agreement, including every one of the terms and conditions of the negotiation, which the parties have to sign.

What is arbitration?: The procedure of arbitration resembles mediation, yet there are some distinctions. Initially, at arbitration, the dispute resolution professional appointed to settle the matter needs to be a lawyer. Second, the parties must expressly accept use of the arbitration process and the parties must acknowledge on the record that they have established they wish to engage in the binding arbitration process. Third, unlike mediation, the parties or lawyers are required to submit written summaries to the arbitrator making their disagreements about what a reasonable end result would be for the case. The whole arbitration proceeding is usually recorded on either a tape recording or by a stenographer. The parties are permitted to have witnesses as well as experts in fact testify at the arbitration, which is practically never carried out in mediation. In many cases, after the evidence and arguments are made on the record, the arbitrator will permit the lawyers or the parties to send a last or closing argument in writing, summarizing the positions of the parties as well as their interpretation of the evidence. When that is done, the arbitrator issues a written binding arbitration award, which must deal with all of the pending issues raised by the parties, or which have to be legally disposed. The parties have to either adopt the award, or challenge the award. Nevertheless, there are limited premises upon which to modify or vacate a binding arbitration award, and there is very limited case law in the family law context analyzing those guidelines. Basically, appealing an arbitration award, as well as winning, is a long shot at best. Once the award is issued, it is typically final.

New Case law Makes Changes: On January 23, 2018, the Michigan Court of Appeals determined that, where the parties have entered into a written mediation arrangement that solves all issues, the Court might embrace that written mediation arrangement right into a judgment of divorce, even where one of the parties specifies that, ostensibly, they have actually changed their mind after the mediation. In Rettig v. Rettig, the Court made precisely that decision. While the trial courts have actually done this in the past, the Court of Appeals had never specifically recommended the practice. Now they have. The functional outcome: make certain that you are certain that you remain in agreement with the mediated settlement that you have participated in. Otherwise, there is a chance the Court might just include the written memorandum into a final judgment, and you’ll be required to comply with it.

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