Alternatives to Going to Court in a Minnesota Family Law Case

Alternatives to Going to…

Family law disputes present particularly difficult challenges. In the courthouse, a divorce, child custody case, or child support dispute follows most of the same forms as other lawsuits, but emotions tend to run much higher. A divorce, after all, marks the end of a marriage, among other family upheavals. Heartbreak is unavoidable. Feelings of anger or betrayal are common. Part of a family lawyer’s job is to guide clients through the legal process while keeping an eye on the emotional side of things. Too much negative emotion can slow a case down, making it harder to find a resolution, or even making it take longer to get a case to trial. That helps nobody in the long run. Luckily, there are alternatives to going to court in a Minnesota family law case.

Television and movies make courtroom trials look exciting, dramatic, and even glamorous at times. They are almost never any of those things. Family law cases can have drama, but not the glamorous kind. Judges do not want drama in their courtrooms. Minnesota therefore requires parties in family law cases to try alternative dispute resolution (ADR) before dragging one another to court.

The Litigation Process

Taking a case to trial is a long, slow, expensive process. Very few lawsuits ever actually go to trial. The vast majority end in a settlement of some sort. It is usually something that makes nobody particularly happy, but which is less time-consuming and less expensive than continuing to pursue the case. Family law cases are no different.

A divorce case begins with a petition filed in the county where the couple resides. If the spouses agree on all of the issues involved in the divorce — which really does happen sometimes —they can file a joint divorce petition. Otherwise, the lengthy litigation process begins.

What happens once a divorce has been filed depends on a wide range of factors, starting with whether the parties have children and how much property must be divided. Each party must determine what they want out of the divorce. If the case goes to trial, which might not be for a long time, they must be able to articulate what they want to the judge. Jury trials are not available in Minnesota divorce cases. Instead, the parties present their cases to a judge, who might not issue a decision for months after the trial. In all, the process can take months or years to complete.

Types of Alternative Dispute Resolution

The best-case scenario in a family law case is that the parties and their attorneys hammer out a settlement on their own. If that does not work, Minnesota requires litigants to attempt ADR before the case can go to trial. Rule 114.02 of the Minnesota General Rules of Practice defines numerous forms of ADR, some of which work better than others in family law disputes.

Arbitration

This form of ADR is growing increasingly common in employment and consumer disputes. The parties submit their dispute to a neutral third party known as an arbitrator, who has specialized training in dispute resolution. The arbitrator conducts a hearing that resembles a trial in many ways, and then makes a decision. That decision is only binding on the parties if they agreed ahead of time. If it is not binding, either party can reject the arbitrator’s decision.

Mediation

This process is more common than arbitration in family law cases. A neutral third party called a mediator, who also has dispute resolution training, facilitates a discussion between the parties with the goal of helping them find a resolution. All parties might be in the same room during the mediation, or they might remain separate while the mediator goes back and forth between them. Rule 114.02(a)(7) states that the mediator cannot “impose his or her own judgment on the issues.” If mediation results in an agreement, the parties can ask the court to enter an order based on that agreement. If mediation does not lead to an agreement, the case may proceed to trial.

Mediation-Arbitration (Med-Arb)

As the name suggests, this is a hybrid of the two processes. It begins with mediation. If the parties cannot reach an agreement, they submit their unresolved issues to arbitration.

Early Neutral Evaluation (ENE)

While arbitration and mediation often occur after a case has gone on for some time, ENE is designed to take place soon after the case is filed. Rule 114.02(a)(4) describes it as a presentation of “the core of the dispute to a neutral evaluator.” The attorneys for the parties present their cases to the evaluator with the parties present. The evaluator’s job is to “give[] an assessment of the strengths and weaknesses of the case” and, if the parties do not settle, to “help[] narrow the dispute.”

Advantages of ADR Over Litigation

ADR presents several advantages, although whether or how these apply to any particular case will vary greatly.

  • Efficiency: As mentioned earlier, litigation takes time. There is only one court system to hear family case. There are many mediators and other ADR professionals, and they are likely to have openings in their schedules sooner.
  • Cost: Litigation is also expensive. ADR is not necessarily cheaper, since the parties have to pay the mediator, arbitrator, or evaluator, but hopefully ADR can lead to a quicker resolution of the case, meaning less overall expense.
  • Privacy: With only a handful of exceptions, family law proceedings take place in open court. Not only are they part of the public record, but anyone can sit in on a hearing. Under Rule 114.08, however, ADR proceedings are confidential. Unless all parties agree, nothing about the use of ADR may be used as evidence in court, including the mere fact that the parties used ADR.

ADR in Minnesota Family Law Cases

Rule 310.01 requires the use of ADR processes in most family law cases. A divorce or other family dispute cannot go to trial until the parties can show that they have tried ADR. Section 518.168(e) of the Minnesota Statutes directs courts to provide the parties with information about ADR at the first court appearance. The ADR requirement does not apply when a case involves domestic abuse allegations.

In addition to the ADR methods identified in Rule 114.02, many Minnesota courts encourage the use of a procedure known as Early Case Management (ECM). The Minnesota Judicial Branch describes ECM as “a five-prong model used in family court that requires intensive judicial involvement very early in the case.” The goal is “to tailor a case management plan and...facilitate an expedited settlement.”

St. Cloud, Minnesota family law attorney Anthony Toepfer advocates for people’s rights and interests during uniquely difficult times, both in and out of the courtroom. He represents clients in divorces, custody disputes, and other family law matters. You will always have access to the latest information about your case at Toepfer at Law, and we are always available to answer your questions and discuss your case if you are unsure where things stand. To schedule a confidential consultation to see how we can help you, please contact us today through our website, or give us a call at (320) 497-4416.

Meet Tony Toepfer

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Attorney Anthony (Tony) Toepfer began his legal career in the area of business and technology law. While successful in that field, he felt there was something missing. He turned down opportunities, because, as he says, “I wanted to see the face…

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