Options After Mediation – Other Alternative Dispute Resolutions Choices
If there are agreements reached at mediation, the mediator will formalize those agreements 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: come to an agreement 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 resolutions allow the parties to have a stronger say in the outcome of the divorce, rather than leaving it up to the judge who is likely going to leave each side unhappy in the result.
After mediation, settlement negotiations typically continue, or agreements reached at mediation are formalized. If still needing time to negotiate, the parties and court will have several options available to attempt 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 likely to encourage several of these forms of alternative dispute resolution before setting a trial. The different methods of alternative dispute resolution are heavily encouraged to avoid an undesired result.
At a settlement conference, each party brings a proposed settlement agreement. The conference will include the spouses as well as their legal counsel. Typically, the conference occurs at an attorney’s office or some neutral setting. The agreements prepared by each side will likely discuss issues concerning the division of property, support obligations, and parenting plans. Negotiations will begin and are done face-to-face while allowing breaks between negotiations in order for both sides to properly consider the offers. 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 both parties are not 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 their arguments to the judge. Common arguments are centered around property allocation, child custody, and support obligations. However, it is important to note that this is not an actual trial. There will be no witnesses and the rules of evidence are not considered. Each party is limited to present 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 since 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 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 his or her requested property distribution, support obligations, and child custody arrangement. However, this is not a trial; rather, the evidence used is limited to just the facts and information that each side has. Witnesses are not called and the rules of evidence do not come into play. The entire mediation will be much less formal than a trial and lean towards a more of a group discussion than an adversarial hearing. The judge will also be wearing a different hat: he or she is serving as the mediator, guiding negotiations, rather than a judge issuing decisions. This type of resolution can be very helpful in assessing both the strengths, and weaknesses, of the opposition’s arguments as well as the overall feel of the case.
Arbitration resembles a trial more than any other alternative dispute resolution, because it will result in a binding outcome. In regards to arbitration, most of the time the option of a trial is not present. Arbitration cannot be compelled, meaning that both parties must agree to arbitration. 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 decisions regarding child custody that arise 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 surrounding property divisions are binding absent any extreme circumstances in re Marriage of Shults.
Arbitration is a less commonly used method of dispute resolution for divorces, though it is available to those willing to agree to engage in the arbitration process. Arbitration is, in many ways, more like trial than other alternative dispute resolution methods. This is because arbitration, by its standard definition, will render a binding outcome. That is, in most cases of arbitration, 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 select issues or portions of the divorce to arbitration, such as spousal support or property division, and leave others outside the scope of arbitration, like parenting time or custody arrangements. It is possible to also arbitrate child custody and child support, though most attorneys will likely advise a party not do this for a multitude of reasons. One reason for this is because there are certain states that have been reluctant to uphold arbitration decisions regarding custody of children; Kansas has not yet spoken on the validity of such arbitration decisions in a recorded opinion.
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 to a plan, the case manager will use the information gathered to develop an agreeable plan. Once the case manager comes up with this plan, he or she will make 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 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 if at all possible.