WHAT IF MEDIATION DOESN'T WORK IN YOUR DIVORCE CASE?
Options After Mediation – Other Alternative Dispute Resolution Choices
If agreements are reached at mediation, the mediator will formalize them and send them to the parties and, if applicable, the parties’ attorneys. Once mediation has concluded, if there are unresolved concerns, efforts towards a settlement typically continue through alternative dispute resolutions. These resolutions differ, but the goal remains the same: to agree to avoid trial. Spouses are in the best position to decide what is fair and equitable because they know their own lives and finances better than anyone else does. For this reason, Kansas courts favor agreements over trials greatly. The various dispute-resolution options allow the parties to have a more decisive say in the outcome of the divorce, rather than leaving it to the judge, who is likely to leave each side unhappy with the result.
After mediation, settlement negotiations typically continue, or agreements reached at mediation are formalized. If still needing time to negotiate, the parties and the court will have several options to work out the remaining disagreements concerning the divorce. In contrast, trial leaves resolution largely up to the judge, and is likely to result in a “split the baby” decree that leaves each spouse unhappy. Bearing this idea in mind, courts are again expected to encourage several of these forms of alternative dispute resolution before setting a trial. Alternative dispute resolution methods are strongly encouraged to avoid an undesired outcome.
Settlement Conference
At a settlement conference, each party brings a proposed settlement agreement. The conference will include the spouses and their legal counsel. Typically, the conference takes place at an attorney’s office or in a neutral setting. The agreements prepared by each side will likely address issues such as property division, support obligations, and parenting plans. Negotiations will begin and be conducted face-to-face, with breaks allowed to allow both sides to consider the offers properly. Because the settlement conference requires the parties to see the overall picture of the divorce, it is a method that should be done later rather than sooner. This will ensure that both parties have the necessary time to conduct thorough discovery. This method of negotiation will likely fail if neither party is within a rational range of demands.
Judge-Assisted Mediation
A judge-assisted mediation contains elements of mediation and a trial. The mediator will be a district court judge, different from the judge presiding over the case.
Each party will have an opportunity to present its arguments to the judge. Common arguments center on property allocation, child custody, and support obligations. However, it is essential to note that this is not an actual trial. There will be no witnesses, and the rules of evidence will not be considered. Each party is limited to presenting only what they know. As a whole, the mediation will mirror that of a group discussion rather than an adversarial setting. Because this is not a trial, the judge will not hand down rulings but will act as any other mediator. This mediation allows both sides to get a sense of how the case will be handled if it goes to trial.
This type of dispute resolution straddles the line between mediation and trial. In these situations, the Judge presiding over the case will ask another district court Judge to serve as a mediator for the parties. The judge who may ultimately preside over the final trial in your case will thus be different than the judge assisting with mediation.
During judge-assisted mediation, each side will present informal evidence and arguments to the sitting judge to support their requested property distribution, support obligations, and child custody arrangement. However, this is not a trial; instead, the evidence is limited to the facts and information available to each side. Witnesses are not called, and the rules of evidence do not apply. The entire mediation will be much less formal than a trial and will lean more towards a group discussion than an adversarial hearing. The judge will also be wearing a different hat: he or she will serve as the mediator, guiding negotiations rather than issuing decisions. This type of resolution can be invaluable for assessing both the strengths and weaknesses of the opposition’s arguments and the overall feel of the case.
Arbitration
Arbitration resembles a trial more than any other form of alternative dispute resolution, because it results in a binding outcome. Regarding arbitration, most of the time, the option of a trial is not present. Arbitration cannot be compelled; both parties must agree to it. Additionally, the parties can decide which matters to send to arbitration. For example, the parties can agree to arbitrate spousal support or property division, while leaving issues surrounding custody outside the capacity of arbitration. It is possible to arbitrate custody and child support, but it is not recommended. Some states are reluctant to recognize child custody decisions arising from arbitration. Kansas has not yet addressed such arbitration rulings.
Much like a trial, each side will present evidence, and the qualified arbitrator will hand down a ruling that is binding on both parties. The Kansas Court of Appeals confirmed that decisions regarding property division are binding absent extreme circumstances in re Marriage of Shults.
Arbitration is a less commonly used method of dispute resolution in divorces, though it is available to those willing to agree to participate. Arbitration is, in many ways, more like a trial than other alternative dispute resolution methods. This is because, by its standard definition, arbitration renders a binding outcome. That is, in most arbitration cases, the option to disagree and go to trial does not exist. Because of this, both spouses must agree to arbitrate. It cannot, and will not be compelled. Moreover, the spouses can choose to send only selected issues or portions of the divorce to arbitration, such as spousal support or property division, while leaving others outside the scope of arbitration, such as parenting time or custody arrangements. It is also possible to arbitrate child custody and child support, though most attorneys will likely advise a party not to do this for a multitude of reasons. One reason for this is that some states have been reluctant to enforce arbitration decisions on child custody; Kansas has not yet addressed the validity of such decisions in a published opinion.
Case Management
Case Management is a method used for exceptionally elevated conflict parties involving child custody or child support. A court-appointed case manager will obtain information about each party through interviews, consultations, and various other means. If the parties cannot agree on a plan, the case manager will use the gathered information to develop an agreeable one. Once the case manager develops this plan, he or she will present the suggestions to the court. Once the court approves the recommendations, they are considered enforceable.
Case management may also be used to apply court orders. The case manager can foster a plan to move children to a new home with a new custodial guardian. The case manager has the authority to resolve minor concerns that may come up during this transition without returning to court. It is important to remember that this dispute resolution method is only to be used in situations where the conflict between the parents is very high. This will result in the parents being micromanaged whenever there is an issue related to the children. It is recommended to avoid case management whenever possible.