Mediation / ADR / Trial

ALTERNATIVE DISPUTE RESOLUTION

Minnesota Court Rules require that all family law cases, at least initial proceedings, involve the use of some type of ADR—Alternative Dispute Resolution. The various ADR methods are an alternative to traditional litigation, where all disputed issues are decided by a judicial officer.

MEDIATION

Mediation is the most common ADR process used in family law cases. Mediation is a process whereby the parties meet with a neutral third party who works with them to reach agreements on the issues in their case. The mediator does not provide legal advice. The mediator has no power to make decisions or to force the parties to make concessions.

The mediator does not make decisions, but rather facilitates a discussion between the parties (sometimes alone and sometimes with the assistance of counsel) aimed at reaching settlement of your issues. The mediation process is confidential, and if you are not successful in reaching a mediated settlement, the judicial officer will never learn what positions either party took in mediation. As part of the mediation process, the mediator will request both parties provide an accurate summary of income, assets and liabilities. It is recognized that sometimes one party controls some or all of this information, and skilled mediators attempt to assure that there is a full and fair disclosure of financial information and a full and fair discussion of the issues.

Our attorneys are experienced in working with their clients through the mediation process. We also have attorneys who have completed certified mediation training and can work with you and your attorney as the third party neutral.

Mediation is most effective when the parties and attorneys are well prepared and when they approach the process with settlement as their goal. Each party must make a full disclosure of his/her assets, income, and future plans for the children in advance of a mediation session. Our attorneys will prepare you for effective participation in the mediation process.

ARBITRATION/CONSENSUAL SPECIAL MASTER

While mediators have no decision making authority, you can elect or a court may order that an arbitrator or a consensual special master (also known as a “CSM”) be the decision maker in your case. An arbitrator or CSM can be appointed to make a decision on limited issues, such as the division of personal property, or on all the issues in dissolution proceeding. The costs of the Arbitrator or CSM are paid by the parties.

Arbitrators and CSMs are typically attorneys or retired judges with many years of experience in the area of family law. They are most often used in cases involving complex financial issues. Their knowledge of the law and issues in family law cases makes them appropriate decision makers. The attorneys in our office have tried many cases before CSMs and can advise you as to the most qualified individuals to hear your case.

EARLY NEUTRAL EVALUATIONS/MODERATED SETTLEMENT CONFERENCES

An “Early Neutral Evaluation” or “Moderated Settlement Conference” is a hybrid of the mediation and arbitration process. The parties and their attorneys agree to meet with one or more qualified individuals/experts to present them with their arguments on the merits of their respective positions in the case. The expert(s) then advise the parties and their attorneys how they might decide the issue based on the information provided them, if they were the decision maker in their case. The parties and attorneys then attempt to mediate the disputed issues with the assistance of the experts and in reliance on their opinion as to how the disputed issue would be resolved.

If your case is heard in Hennepin County, Early Neutral Evaluations (“ENEs”) are available for cases in which custody or parenting time of a minor child is at issue. The evaluators are experienced custody evaluators who work for the Hennepin County Department of Court Services. These ENEs have been especially successful in resolving custody disputes early in the process to shield your children from the harm usually caused by a protracted custody battle. Hennepin County also has family law attorneys who will serve as evaluators in financial ENEs. Their fees are charged on a sliding fee scale. These evaluators are selected by the Hennepin County Family Court. Our attorneys are well acquainted with this process and will guide you through your early neutral evaluation.

TRIAL

In the event your case cannot be resolved through ADR or the direct negotiation of the parties and attorneys, it will be resolved through the litigation process. While upwards of 95% of all cases settle short of trial, the most expensive and acrimonious manner of resolving your differences with your spouse is through a formal trial - and perhaps nowhere is the retention of skilled counsel more important. Our firm has 50 years of practice in family law litigation. We practice in all metropolitan and out-state counties in Minnesota.

Trial involves extensive study of all facts and evidence relevant to your case (which has been gathered earlier during the discovery process) and extensive preparation of witnesses for testimony, such as expert witnesses. Many times, depending on the complexity of your case, we will have retained experts to assist us in valuing your estate, such as family-owned, closely-held businesses, to assist in determining the income or cash flow available to support the family, or to provide the court with expert advice on difficult custody issues. Such experts may include real estate appraisers, business appraisers, accountants, actuaries, forensic computer experts, and mental health professionals.

As part of trial preparation, your attorney must devote extensive time preparing to conduct examination (questioning) of witnesses, extension time preparing exhibits summarizing your position as to the evidence (in a form understandable and convincing to the trial judge), and develop a strategy as to what witnesses will be called and in what order. Ultimately, at trial your lawyer will conduct "direct examination" of witnesses called on your behalf, as well as "cross examination" of opposing witnesses, including expert witness retained by your spouse. This requires your lawyer to think on his/her feet, and prepare questions on the spot as he/she hear evasive or unexpected answers.

Family law cases are tried to a judge or family court referee, not a jury. The judge listens to the testimony of the witnesses, takes notes, and occasionally will ask his/her own questions of the witnesses. After the testimony of the witnesses has been completed, the final part of litigation is the presentation of your case to the judicial officer. This is done in written form with each party submitting to the judicial officer proposed "findings of fact, conclusions of law, order for judgment and judgment and decree," which is a written summation of what you believe the facts and evidence established at trial. Your attorney will also submit a memorandum in lieu of final argument, which is a written final argument summarizing your position and the case law (previous published or unpublished cases representing a Court of Appeals or Supreme Court ruling on points of law) supporting your position. Occasionally, some courts will request that these written submissions take place before the witnesses testify at trial.

The success of Katz, Manka, Teplinsky, Graves & Sobol, Ltd. has had in over fifty years of divorce practice is based in large part on the business sophistication and experience of our attorneys and the exhaustive discovery and preparation we put into learning literally all facts of your case, no matter how minute. That experience carries forward after trial to the detailed final written summations of the evidence and the law prepared and submitted on your behalf.

We will always be well-prepared to represent you in court, whether for a brief “motion” hearing where the judge will be asked to decide limited issues, or for a complete trial on all the issues in a divorce proceeding. We have many years of experience in the presentation of evidence at trial, examining witnesses, making oral arguments to the court and presenting concise, well-written legal memoranda to support your case.