Mediation, Collaborative Law, Cooperative Law, Arbitration, Family Court- Oh My! What’s best for me?
Lawyers, sometimes deservedly, get a lot of blame for being obstinate, litigious and uncompromising. Lawyer have also brought to us various forms of dispute resolution that are excellent alternatives to litigation. Here are some of the most common alternatives to traditional litigation used by South Carolina trial lawyers.
Early Neutral Evaluation: ENE is a little used, but potentially very powerful tool. In ENE the parties retain a neutral third party who “provides a nonbinding evaluation of the matters in controversy, assists the parties in identifying areas of agreement, offers case planning suggestions, and assists in settlement discussions” S.c. Ct. Ann. Adr. R. 2. I have used ENE successfully in several cases to help my client avoid years of costly litigation by bringing in a retired family court judge to evaluate the case. ENE’s can be helpful in cases where one or both parties have unrealistic expectations, or where funds and issues are limited but the emotions are very high.
Mediation. Mediation is a mandatory process that must be engaged prior to a case going to trial in South Carolina. It is highly adversarial. The parties are caucused in separate rooms, and a neutral mediator shuttles offers back and forth and weighs in on the legal positions of both sides while attempting to find a middle ground. It is often said that if both parties are unhappy after a mediation then it was a success. Mediation can often take one or more days and can encompass more issues than are alleged in the formal pleadings. It is an exhausting process where each party postures their best facts in hopes of intimidating the other side into a settlement. Mediators are selected by agreement between the parties or appointed by the court. Parties may also agree to submit the matter to a mediator from the Mediation and Meeting Center of Charleston.
Collaborative Law: Collaborative law is a formal dispute resolution process recognized in many states in either statute or court rule. Collaborative lawyers must be trained in collaborative law and certified by the International Acadamy of Collaborative Professionals, or like group. In a collaborative case the parties agree that their attorneys and other retained professionals will be engaged on a limited scope basis for the purpose of reaching settlement only. All settlement negotiations happen collectively in 4-way meetings where the parties and their retained professionals problem solve a resolution of all issues in their dispute. Unlike mediation, collaborative lawyers are trained to look for “win win” solutions. If negotiations come to an impasse (which is rare), the attorneys and other retained professionals must withdraw and new trial counsel is retained to move the matter into litigation. The collaborative process works very well for couples who understand the harm that is caused by domestic relations litigation but also know that they need a good deal of legal advice and other professional help to figure out an appropriate resolution for their family.
Cooperative Law: Cooperative law works just like collaborative law with one exception: the retained attorneys and professionals do not limit the scope of their engagement to settlement. Cooperative law cases are best for people who do not want to be required to switch lawyers should negotiations reach an impasse. Cooperative law is newer and is represented in Charleston by the Charleston Cooperative Family Law Association.
Arbitration: Arbitration is when the parties to a dispute hire a neutral third party to hear the dispute and make a ruling. The arbitrator is essentially a private judge and her decision is binding. This means that an arbitrator’s decision can not be appealed unless the ruling itself violates the law. Arbitrations work best when disputes are about modest amounts of money and personal property as the cost of litigating those issues is rarely cost effective. Spousal support issues are more complicated, as a bad ruling could cost a party hundreds of thousands of dollars with no avenue of appeal. Jurisdiction over children’s issues, including support, are expressly reserved to the family court and can not be subject to arbitration.
Family Court: Sometimes you just gotta go to court, that’s why it’s there. In family court most of the litigation is motions. Temporary motions are the most common and occur within 4-6 weeks of filing for divorce or separation. At the hearing (temporary hearing) the court will make a ruling based primarily on status quo behavior prior to the marriage regarding requests for support, custody, visitation, etc. Family court trials are not common as the vast majority of people involved in a family law case will resolve their case by agreement. The family court is best utilized when a person must be compelled to do something such as pay support, permit visitation with a child, deliver/return/divide/share all manner of property.