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The thing about courtrooms and judges is that they have limited options and outcomes to offer parties in a conflict or dispute. The law can prescribe that certain things must happen or not happen. It is my experience that most judges are quick to admit that you can only learn so much about parties and their relatives; they can never really truly know who you are. For that reason judges encourage parties to reach their own solutions without the assistance of a judge because parties know their own circumstances better than anyone else. But when you have parties who are in disagreement with each other how do you get them to cooperate or collaborate to reach a solution?
Facilitative mediation. A disinterested third party, in a neutral role, works with both parties to help them hear each other and create a solution that best fits them. Mediation is not concerned with vindicating a party or assigning liability or fault. Its purpose is to help the parties reach a resolution without a formal written ruling from a judge. The mediator cannot provide the parties with legal advice but he or she can act as a valuable sounding board in helping parties reach an agreement. And it is very rare for a judge not to adopt and enforce an agreement reached by two parties.
Mediation affords parties confidentiality; courtrooms do not have this same benefit. When you submit a request to a judge your whole life can become accessible to the general public. Do you want John Doe or Sally Smith to know how you have spent your life before entering a courtroom?
Mediation in family law cases can be used to resolve the following issues:
Is mediation right for you? Alternative dispute resolution is a voluntary process, which means that no one can force you to do it or enter an agreement. Parties should participate in mediation so long as they have an open mind about solving the problem and domestic abuse has not occurred.
How much time will it take? It is not uncommon for the first session of alternative dispute resolution to last three to four hours. Sometimes it can last longer depending upon the willingness of the parties to continue working. It is also possible to have multiple mediation sessions if the case is complex enough or there is a need to respect other obligations of the parties. There will also be time spent prior to the mediation getting ready for it or time after words carrying out any steps agreed to by the parties in their agreement.
What won’t I get from mediation? You will not get legal advice from the mediator or evaluator. You also will not get a legalese filled final document. You may be required to take additional steps after the mediation or ENE is complete in order to get your agreed upon resolution approved by a judge as required by applicable state law. This will require the other party or you to draft the needed legal documents without the assistance of the mediator or evaluator. This oftentimes can be accomplished by visiting your state’s judicial branch website or going to the local law library.
What happens after alternative dispute resolution? If an agreement is reached through either process then the agreement will be reduced to a writing known as a Memorandum of Agreement. Both parties will be asked to sign the Memorandum. It may be necessary for the parties to take the Memorandum of Agreement to the judge to have the judge turn it into a court order depending upon the type of case that you have. But generally speaking a Memorandum of Agreement is going to be enforced by a judge to the fullest extent permitted by law. Either party can leave before an agreement is reached and take his or her chances at court with the situation.
Prior to the first session both parties will sign an agreement for alternative dispute resolution. Unless a different payment arrangement is agreed to by the parties in advance, both parties are obligated to pay one-half of the fees for alternative dispute resolution in advance. The neutral’s fees and costs are charged at an hourly rate. Similar to an attorney handling a family law matter is may be necessary that the parties have to pay more than an initial fee advancement or retainer for the services of the neutral. You may contact our office to learn what the hourly rates are. Payments are accepted by cash, check, money order, debit card, or credit card.
Required legalese: Benjamin Kaasa is a Qualified Rule 114 Neutral under the Minnesota General Rules of Practice for District Courts. He appears on the roster as a Family Law Evaluative and Facilitative Mediator. He performs both social and financial ENEs. For a further statement of qualifications please contact our office.
Our experience in mediating Minnesota family law matters carries over to our neighbor state to the east. The process is not any different than it is in Minnesota even though the laws are slightly different. Our experiences in the Courtroom serve as a valuable resource for parties looking to resolve their differences without the assistance of a judge.
Mediation involves two or more parties getting together with the assistance of a neutral third party to help create a resolution or settlement. The process is confidential and voluntary. If the parties reach an agreement then it will be reduced to a written settlement agreement. However, under Wisconsin law a mediated settlement agreement on family law matters may be vacated or abandoned at any point until the agreement is adopted by the judge. All parties to a mediated settlement agreement need to take the extra step of recommending that the judge adopt their agreement.
Wisconsin law allows an attorney mediator to help the mediating parties prepare any necessary pleadings to help present their agreement to the Court.