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© 2006 Thomson Delmar Learning. All Right Reserved. CHAPTER 13 ALTERNATIVE DISPUTE RESOLUTION
© 2006 Thomson Delmar Learning. All Right Reserved. Alternative to Litigation Alternative Dispute Resolution – How it is used in Court systems today What Exactly is ADR? Mediation Arbitration Alternative Dispute Resolution Chapter 13
© 2006 Thomson Delmar Learning. All Right Reserved. The Paralegal’s Role in ADR Interview parties and witnesses Review documents and depositions during discovery Organize information and exhibits Communicate with the court, witnesses and parties Paralegal as a mediator Check your state to see if the state allows it Paralegal can assist an attorney with the paperwork involved Alternative Dispute Resolution Chapter 13
© 2006 Thomson Delmar Learning. All Right Reserved. Mediation to Deal with Family Law Issues The mediation role in divorce – Mediation verses the adversarial approach When Not to Mediate Mediation is usually not effective – If there is domestic violence present – Only one spouse is willing to mediate – Only one spouse has the information about the family’s finances – A spouse is dealing with a mental illness Alternative Dispute Resolution Chapter 13
© 2006 Thomson Delmar Learning. All Right Reserved. Mediation Guidelines Four model standards for mediators – Knowledge of family law – Knowledge of and training in the impact of family conflict in parents, children and interested third parties including knowledge of child development and domestic abuse – Education and training specific to the process of mediation – The ability to recognize the impact of culture and diversity The American Bar Association’s Model Standards of Practice for Family and Divorce Mediation (Exhibit 13:1) Alternative Dispute Resolution Chapter 13
© 2006 Thomson Delmar Learning. All Right Reserved. What Family Mediation Can and Cannot Do Mediation can: – Aid in dispute resolution – Promote self determination Mediation cannot: – Act as mental health therapy – Family counseling – Legal representation Alternative Dispute Resolution Chapter 13
© 2006 Thomson Delmar Learning. All Right Reserved. Susan’s Progress Continues: J.D. Teaches the ABC’s of Family Mediation Susan’s First Mediation Lesson What a mediator does Mediation is less adversarial One Family Struggles To Mediate a Settlement The introductory letter (Exhibit 13:2) The mediation questionnaire (Exhibit 13:3) Alternative Dispute Resolution Chapter 13
© 2006 Thomson Delmar Learning. All Right Reserved. Filling Out the Questionnaire Beforehand, saves time and money During the session, allows the mediator to ask the questions Make sure all property is disclosed – If not, the court will most likely find the agreement invalid The First Mediation Appointment Mediation Retainer Agreement – The agreement (Exhibit 13:3) Alternative Dispute Resolution Chapter 13
© 2006 Thomson Delmar Learning. All Right Reserved. Concentrating on the Financial Ramifications of Divorce Moving Steadily Toward Agreement Concentrating on the Children Including the Children Pros – Allowing the children to participate in decisions that affect them – Allowing the children to understand the process of what is happening in their lives Alternative Dispute Resolution Chapter 13
© 2006 Thomson Delmar Learning. All Right Reserved. Cons – Children should not be forced to participate if they don’t want to – Children should not witness their parents arguing The Mediated Settlement Agreement Reviewed Where To Go From Here: Pro Se or Attorney One attorney cannot represent both parties Review attorneys Arbitration Instead of the Courthouse? Sample Arbitration Clause (Exhibit 13:4) Alternative Dispute Resolution Chapter 13
© 2006 Thomson Delmar Learning. All Right Reserved. Broad Powers Arbitrators – Broader powers than judges – Are not limited to strict rules of evidence, including hearsay rules – Authority to hear witnesses out of turn – Their decision is usually final and cannot be appealed Binding arbitration Alternative Dispute Resolution Chapter 13
© 2006 Thomson Delmar Learning. All Right Reserved. Positives Verses Negatives of Arbitration Positives: – Substantial savings – attorney fees reduced because the average hearing is shorter than a trial – Final awards are usually reached quickly – Hearings held in a private conference room as opposed to the courtroom Alternative Dispute Resolution Chapter 13
© 2006 Thomson Delmar Learning. All Right Reserved. Negatives: – Arbitrators do not need to give a formal reason for their decision – Arbitrators are not required to keep formal record of the hearings – Arbitrator decision is binding and cannot be appealed – If only one party has control of the financial documents the other spouse will be at an extreme disadvantage with arbitration Alternative Dispute Resolution Chapter 13
© 2006 Thomson Delmar Learning. All Right Reserved. Collaborative Law: A Legal Hybrid Collaborative law Collaborative Law Participation Agreement Alternative Dispute Resolution Chapter 13
© 2006 Thomson Delmar Learning. All Right Reserved. Ethics Alert: Is there a conflict of interest if J.D. looks over the mediation settlement agreement for both parties involved? Alternative Dispute Resolution Chapter 13
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