ADR Information

"Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser-in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough."

-Abraham Lincoln
July 1, 1850

We believe, in many instances, the resolution of cases should properly switch from litigation to Alternative Dispute Resolution ("ADR"). In Indiana, alternative dispute resolution in family law generally takes two forms, mediation and arbitration. Each offers distinct advantages.

MEDIATION

The most utilized means of ADR in family law is mediation. Mediation takes a variety of forms, but the premise is the same. The parties agree to meet with a court-approved mediator at a certain time and place for the purpose of negotiating to some mutually agreeable resolution of the outstanding issues. The mediator-generally an attorney with experience in family law matters -facilitates agreement by clarifying the issues and interests of the parties, introducing possible solutions, and acting as a messenger of sorts to convey the interests of each side. The mediator is, above all else, a neutral and sides with neither party. Mediation is privileged. The results of the session, if the case is not settled, generally cannot be disclosed in subsequent Court proceedings. A mediator cannot compel you to agree to any proposal.

Mediation, in Indiana, is explained at Indiana Rule of Alternative Dispute Resolution 2. Rule 2.1 thusly:

"Mediation under this section involves the confidential process by which a neutral, acting as a mediator, selected by the parties or appointed by the court, assists the litigants in reaching a mutually acceptable agreement. The role of the mediator is to assist in identifying the issues, reducing misunderstanding, clarifying priorities, exploring areas of compromise, and finding points of agreement as well as legitimate points of disagreement."

The advantage of a mediator is that, as a neutral, he/she is without a "dog in the fight." The mediator provides the environment to make possible a resolution on which both parties can agree.

Mediation differs from other forms of ADR in that the resolution reached is by agreement of the parties. Rule of A.D.R. 2.1 provides that "...[a]ny agreement reached by the parties is to be based on the autonomous decisions of the parties and not the decisions of the mediator..."

Mediation can be an excellent tool to reach an amicable settlement of your case, but is not right in every situation. Our attorneys are experienced in serving as mediators as well as representing clients in mediation and are prepared to discuss the applicability of mediation to your case.

ARBITRATION

Arbitration, as a form of alternative dispute resolution in Indiana family law cases, is a relatively new option. The Indiana Family Law Arbitration Act became law on July 1, 2005. Bruce Pennamped, as a member of the Indiana Child Support and Custody Advisory Committee was actively involved in drafting the Family Law Arbitration Bill presented to the legislature, in testifying about the Bill and process before Committees in both the Indiana House of Representatives, and Senate, and in working with the Indiana State Bar Association Family and Juvenile Law Section to move the Bill through the legislature.

Like other forms of ADR, arbitration provides parties with a forum other than the Courtroom. Arbitration differs from mediation in that by submitting to arbitration, the parties agree to allow a neutral third party make a decision in their case which the Court must enter as a judgment, whether the parties agree or disagree with the decision of the Arbitrator.

Arbitration has long been utilized in civil matters to resolve disputes. However, it was not until the Family Law Arbitration Act set clear guidelines and limitations that it became a viable option in Family Law.

The arbitrator is an attorney either agreed upon by the parties or ordered by the Court. Under the Act, the Arbitrator is required to follow the laws of Indiana and apply them to your matrimonial matter. If children are involved, the arbitrator must comply with the Indiana Parenting Time Guidelines as well as the Indiana Child Support Guidelines. Therefore, the parties should not expect to attain a judgment unsupported by the applicable laws, nor should they believe that by agreeing to arbitration they will usurp the unbiased judicial capacity normally reserved for tribunals.

During arbitration, the parties agree on the procedure in advance of their appearance before the arbitrator. Each party present their argument and information. The arbitrator makes written findings of fact and conclusions of law and submits the same to the Court having jurisdiction over the matter. The Court enters judgment based on the arbitrator's findings and conclusions. Either party may appeal the judgment entered by the Court based on the arbitrator's findings and conclusions.

Arbitration generally resolves matters in a quicker and more economical fashion than litigation. Arbitration can occur in a private setting thereby protecting the confidentiality of your matter.

As with other forms of ADR, arbitration may or may not be the best method to resolve your case. Our attorneys are prepared to discuss with you the applicability of arbitration to your case.

COLLABORATIVE LAW & COOPERATIVE LAW

Collaborative Law. The "collaborative law" technique is another ADR option which may be suitable in some family law cases. Collaborative law requires the parties to enter a signed agreement to adhere to the strategies unique to the method. The parties must consent that if an agreement is not reached, the attorneys will not represent the clients in subsequent matrimonial litigation.

The basic premise of collaborative law is that neither party will utilize techniques from the adversarial practice. Collaborative law requires each party to provide full disclosure of all information, thereby alleviating the need for the practice referred to in the proceeding paragraph. Moreover, each party, by entering into the collaborative law agreement, has a duty to provide pertinent information even if not requested by the other party.

The advantage to such a method is clear: the negative emotions often fostered by adversarial practice are minimized, and the parties are conditioned to cooperate in the future, which is especially important when children are involved. Further, collaborative law, when successful, often decreases costs and keeps your matter out of the courtroom. Often collaborative law incorporates other professionals, such as financial advisors and mental health professionals, to offer suggestions as to how to best implement the transition to the status of unmarried persons.

Collaborative law is not always the best option. To expand on the full disclosure requirement, what if the party withholding information has a legitimate reason to do so? Moreover, the method overlooks the very important function that courts or a neutral play in resolving disputes while protecting the rights of all parties involved.

Cooperative Law. "Cooperative divorce law" is not an oxy moron. It is a method of ADR which operates under some of the same premises as "collaborative law." Like collaborative law, cooperative law requires that the parties enter into an agreement to adhere to the unique means utilized by the method. Cooperative law differs from collaborative law is in that in cooperative law, the attorneys are not required to withdraw their representation of their respective clients if an agreement is not reached.

Our attorneys will confer with you about when Collaborative Law or Cooperative Law may be a method suitable for your case.