Is Alternative Dispute Resolution Required?

In Child Custody, Child Support, Separation & Divorce by Elizabeth Stephenson

Alternative Dispute Resolution (ADR) consists of numerous types of “alternatives” to taking a lawsuit to trial. We are well aware that there are people out there who are eager to go to trial to have their day in court. However, consider the following:

  1. Taking a case to trial is very expensive. There are attorneys fees relating to the time-consuming process of trial preparation and the days of time exclusively dedicated to actual trial. This doesn’t even include the court costs, witness fees, expert witnesses, and obtaining certified records.
  2. Courts are overbooked. They have way too many cases on their dockets and insufficient time to dedicate to every case that is heading toward trial. This makes it difficult to get a trial setting, or to even get reached on your assigned trial date.
  3. Trials are a risk. Regardless of how confident you are that you will win, or how strong your evidence is, there is always a level of unpredictability when everything is put in the hands of a judge. Judges are “fact finders” in cases and have the full authority to determine which witnesses are credible and which witnesses are not credible. In essence, you may not get the result from trial that you may expect.
  4. For some, the worst part of trial is the emotional toll, the conflict, and the vulnerability that is inherently involved with putting your business out in front of a judge.

What are the Forms of ADR?

Arbitration and mediation are the most common forms of ADR. Arbitration is a quasi-trial in which the parties formally follow the rules of procedure and evidence in presenting evidence to an independent arbitrator. This arbitrator essentially acts in the role of the judge and the parties must generally agree that the arbitrator’s ruling will be binding. Since an arbitrator is not limited by the same docket-constraints as a court, arbitration is much easier to schedule and can occur much sooner than trial. In addition, arbitration provides privacy for the parties as it takes the matter out of the public courtroom.

In contrast, Mediation is a far less formal form of dispute resolution. The parties basically meet at a central location and attempt to negotiate with each other through a third-party mediator. There are no witnesses, no testimony, and no one is under oath. Instead, the parties are simply expected to show up to attempt to settle whatever issues they can in good faith.

Is ADR required?

In most counties, the answer is yes. Many counties require that parties participate in ADR prior to taking the case to trial. Each county has their own local rules as to the types of case and type of ADR that is required. For example, Wake County requires financial mediation for property division proceedings and custody mediation prior to custody trials. Even if a court does not have local rules to this effect, do not be surprised if you are ordered to participate in mediation or arbitration.

New Direction Family Law

If you have been thinking about divorce or child custody changes, contact New Direction Family Law. We provide legal representation in family law disputes. This area of law can be complicated and emotionally draining, but we want to help guide you toward a new direction. We pride ourselves in listening to our clients and providing comprehensive legal advice so that they can make confident, fully-informed decisions. We serve Wake, Johnston, Lee, Harnett, Cumberland, Nash, Granville, Franklin, and Durham counties. Call New Direction Family Law at (919) 719-3470 to schedule an appointment, or contact us at our website.