Alternative Dispute Resolution: Methods to Avoid Court

While traditional litigation is one way to decide custody, alternative dispute resolution (ADR) methods offer parents a more personalized approach.

Most ADR methods help parents agree on a parenting plan and visitation schedule so they can settle their case. A few actually make decisions for parents who can't agree. Either way, the result is less time spent in court.

Mediation

A mediator is a neutral party who helps parents resolve issues in their case. Mediation (sometimes called conciliation) is best for parties who have common ground and can interact civilly.

Some states or counties require parents in custody cases to attend mediation, and parents can always try mediation voluntarily.

Benefits of mediation include:

• Autonomy: Parents make decisions together instead of leaving them to the court.
• Consensus: Co-parenting goes more smoothly when parents are on the same page.
• Efficiency: Many families reach full agreement in just a few sessions.
• Savings: Parents decide how to split the cost and often owe hundreds of dollars each, as opposed to many thousands for trial.
• Privacy: Parents can hash out their issues in private instead of a public courtroom.

Usually, parents sit together to discuss their differences, as the mediator helps them find areas where they can agree or compromise. Occasionally, the parents sit in separate rooms, and the mediator moves between them.

In some states and counties, you can bring your lawyer with you to sessions.

Parents are never obligated to settle in mediation. Any issues they don't resolve, they can litigate in court or address through a different ADR method. For the best chance of success, prepare for your mediation session thoroughly.

Hiring privately gives you the freedom to pick any mediator you like (if they're willing and able to work with you). Some people want to feel confident that the mediator respects their LGBT identities or some other feature of their case that may be unusual or sensitive.

Mediation provided by a court may differ somewhat from private mediation. Court mediation is generally cheaper (or even free) and has shorter sessions. In some states, court mediators make recommendations to the judge when parents don't agree.

Collaborative law

In collaborative law, each parent commits to settling with the help of their lawyers and a team of experts. The supportive environment works well for parents with complex situations or high conflict.

Each parent must hire a collaborative lawyer to represent them. Then the parents may hire finance professionals, divorce coaches and child specialists to complete the collaborative team.

Benefits of collaborative law include:

• Support: Your team provides legal and emotional support.
• Autonomy: Parents make decisions together instead of leaving them to the court.
• Consensus: Co-parenting goes more smoothly when parents are on the same page.
• Efficiency: Many parents reach an agreement in six months.
• Savings: Faster resolution than going to trial means fewer billable hours for lawyers.
• Privacy: All discussions are confidential, though court documents are not.

To start, everyone involved signs an agreement committing to confidentiality, cooperation and honesty. Then, the team helps parents brainstorm and assess potential compromises during a series of sessions. Some of the sessions involve all team members, while others involve select members.

If parents fail to reach a full agreement and instead decide to go to trial, the lawyers and experts must withdraw from the case.

Cooperative law

Cooperative law offers many of the same benefits as collaborative law, but differs in a few key ways.

The cooperative process offers a less formal approach than collaborative law. Lawyers do not need specialized training and no one has to sign a participation agreement.

Cooperative law also allows greater flexibility for parents who don't reach a settlement. If negotiations fail, your cooperative lawyer can continue with you into trial.

Early neutral evaluation

In early neutral evaluation (ENE), an evaluator reviews a case, listens to the parents' testimony and then provides analysis of how a judge may rule. You'll encounter this term in places including California, Ohio and Minnesota. Some states refer to the process simply as neutral evaluation or case evaluation.

Many parents use the evaluation to guide them to a settlement. In some states or counties, if parents don't reach a settlement, the evaluator submits his or her analysis to the court, where it could influence the judge's ruling.

Benefits of ENE include:

• Foresight: Parents get an idea of what to expect from the court so they can take the best course of action for their family.
• Autonomy: Parents make decisions together instead of leaving them to the court.
• Consensus: Co-parenting goes more smoothly when parents are on the same page.
• Efficiency: The process can consist of just one session, and never more than a few.
• Savings: ENE can cost as little as $200 per session, potentially saving parents thousands in lawyer fees.

Parents can choose together to do an early neutral evaluation, or the court may require them to do one. Evaluations typically occur in half- or full-day sessions.

Evaluators are unbiased parties experienced in custody proceedings — usually judges or lawyers.

Parenting coordination

A parenting coordinator (also known as a PC or a child custody special master) is a mental health or legal professional who helps combative parents work through disagreements.

In some instances, if parents can't reach consensus, the coordinator looks at the facts and decides for them.

Often, PCs take on a broader role resembling that of a parenting coach; they may help parents draft respectful emails to each other, lead the parents in a discussion of disciplining techniques, explain a custody court order, etc.

Benefits of parenting coordination include:

• Proactivity: Coordination helps solve little disputes before they have the chance to grow.
• Availability: Parents can communicate with the PC in between sessions, which are held on an as-needed basis.
• Autonomy: The main objective is to help parents to reach their own, joint decision.
• Conclusiveness: If parents fail to agree, the PC can decide certain issues for them, preventing a drawn-out dispute.
• Education: The PC teaches parents how to communicate with each other effectively.
• Savings: Staying out of court can save families money, though coordination isn't cheap.
• Privacy: Parents can hash out their issues in private instead of a public courtroom.

Coordinators can help develop a parenting plan, as well as resolve issues that arise once a plan is in place.

In some states, parents can sign a contract giving the PC final say when they reach a standstill over certain types of decisions. For example, for the next two years they may allow the PC to decide disputes related to the child's education.

If necessary, parents can meet individually with the coordinator to avoid interacting with each other.

Parents can decide together to use a coordinator, or the court may order it. Interview several to find one whose fees, style and availability work for you.

Arbitration

Arbitrators are neutral decision-makers appointed to settle disputes. Parents agree on an arbitrator or panel of arbitrators to hear their case.

The arbitration proceeds much like a trial, with both parents (or their lawyers) presenting evidence and arguments so the arbitrator can issue a decision.

Custody is not commonly pursued through arbitration because courts can void an arbitration ruling that doesn't serve the child's best interest.

Benefits of arbitration include:

• Privacy: Details from arbitration hearings are not available to anyone not directly involved.
• Control: Parents can select their own arbitrator, leaving the decision to someone they trust.
• Efficiency: Hearings often last a day, and parents don't have to schedule around crowded court calendars.
• Savings: Arbitration costs less than going to trial.

Some religions offer their own version of arbitration. In Jewish and Islamic courts, rabbis, qadis or imams look at the facts and make decisions following their religions' laws and customs.

Keep in mind that religions often rule based on a parent's sex. If you're interested in religious arbitration, start by speaking to a lawyer who has knowledge of your religion's process.

Private judging

Only a few states — such as California, Florida and Texas — allow family law cases to be heard by so-called "private judges." In this arrangement, parties agree on and pay a judge to rule on a case.

Benefits of private judging include:

• Efficiency: Matters can often be resolved in a single hearing, and your court dates are not likely to move like they could with a traditional judge.
• Privacy: Hearings are held in offices or meeting spaces instead of courtrooms.
• Comfort: You can state your case in a more relaxed environment.
• Control: Parents select the judge, leaving the decision to someone they trust.

After opening a case, parents ask the court for a private judging referral together. They may ask to have their entire case referred or just specific issues.

The parents sign a contract with the private judge (also called a special judge), and a court order gives the private judge all the powers of a trial judge until a decision is rendered in the case.

The parties present evidence as usual, and the judge's decision is binding, just as if it were issued by a trial judge. The parents cannot change judges, except for certain reasons like conflict of interest.

Remember that a private judge is no less serious or more lenient than a traditional judge, so make sure to prepare for court accordingly.

Informal negotiation

Parents who can compromise without professional help may be able to negotiate an agreement on their own.

Before signing anything, however, it's always a good idea to have a legal professional review your agreement.

If you only manage to reach consensus on certain things, you can move to any of the alternative dispute resolution options above. Or you can hire a lawyer to help you negotiate or litigate the unresolved issues (called limited scope representation).

Preparing for an alternative dispute resolution session

Preparation is as important when you decide custody through an alternative method as it is when you decide it in a courtroom.

Unless you and the other parent agree on all aspects of custody and visitation, you will need to convince someone — the other parent, an evaluator, a parenting coordinator, etc.

Evidence is convincing. Start with a parenting plan and schedule, but you may also need to print your conversations with the other parent, calculate who pays the child's expenses, and more.

The Custody X Change app enables you to do everything in one place.

With a parenting plan template, customizable custody calendars, a messaging tool, an expense tracker and beyond, Custody X Change makes sure you're prepared for any method of deciding custody. It makes sure you're prepared to get what's best for your child.