Step 10 – Options After Mediation
Options After Mediation – Other Alternative Dispute Resolutions Choices
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. Though each of these types of alternative dispute resolution are different, they all seek to reach common ground and facilitate agreements to avoid trial. Kansas courts place a heavy emphasis on agreements over trials because the spouses are in much better positions to know their lives, their children and their finances themselves as opposed to the judge, and in these methods the parties have a much stronger say in the ultimate outcome. 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.
Settlement conferences are direct negotiations between the spouses. Both spouse, and their attorneys will be present. The conference is likely to be held at one attorney’s office or a neutral location. Each side typically brings some form of a proposed settlement agreement. These proposed agreements typically outline the division of parties’ property, the parties’ respective support obligations, and a proposed parenting plan or child custody schedule. Once present, the parties and attorneys will meet and begin discussing the unresolved issues. Negotiations will generally be done face-to-face, with frequent breaks so that each spouse and his or her attorney can regroup and consider offers. Settlement conferences are best left as later tools of negotiation, as they will depend largely on each side being able to see the big picture of the divorce. This means both sides will have needed time to conduct formal discovery, and get any other information they may need. Also, this type of negotiation is only likely to be successful when the two sides are within a reasonable range of demands.
Judge Assisted Mediation
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 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.
As for the process itself, arbitration is conducted before an arbitrator that is qualified to hear such matters. Evidence is presented to the arbitrator, very similar to how evidence is presented to a judge at trial. The arbitrator will hear each side’s evidence, and then render a decision based upon that evidence. The decision of the arbitrator is binding on the spouses. The Kansas Court of Appeals confirmed that property division decisions issued in arbitration are binding and not to be undone by courts absent extreme circumstances in re Marriage of Shults.
A final type of dispute resolution is reserved for extremely high conflict couples with issues involving child custody or support. In these cases, the court will appoint a case manager to oversee the resolution of, or at times implementation of, orders concerning children of the marriage. The case manager will gather information about the couple through interviews, meetings, and other means. This information is then used to help develop an agreeable plan, either decided by the parties or determined by the case manager if the parties cannot agree. The case manager must also report to the court and issue his or her recommendations so that court can approve them, making them enforceable.
Case management can also be utilized to implement court orders or agreements. The case manager may develop a plan to transition children to a new home with a new primary custodial parent. The case manager is available to resolve minor disputes that arise during this transition without the need to continuously return to court. Again, this type of court oversight and supervision is reserved for extremely high conflict cases where parents literally have reached the point where they need someone to micromanage almost every aspect of their interactions relating to their children. As such, most parties would be well advised to avoid case management whenever possible.
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