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Divorce Mediation Should Be Your First Step For Your Divorce

February 4, 2011

You have heard it before… The courts are overflowing with family disputes that don’t belong there and we need to do something about it.  

Hennepin County started the ENE (Early Neutral Evaluation) process 7 years ago to try and alleviate the volume of divorce cases by encouraging couples at the ICMC (Initial Case Management Conference) to try and settle their issues by going with their attorneys to a FENE (Financial Early Neutral Evaluation) to address the financial issues of spousal maintenance, child support, and property settlements and to a SENE (Social Early Neutral Evaluation) to address issues around custody and parenting plans.   Currently there is a lot of energy around rolling this program out statewide. 

This may be “early” as it relates to the court system but this is not early from the family perspective.   The ENE process happens after the parties have “lawyered- up” and after thousands of dollars may have been spent on attorney fees on the way to court.  This is a valiant effort to keep couples going through a divorce out of court but it is happening too late in the process.  I would argue we need to look further upstream to help couples as soon as they are in conflict.

Since the early 1980’s, alternative methods have been developed to help people resolve legal problems, without resorting to litigation. These techniques, known as alternative dispute resolution (ADR), involve an independent third person or neutral who tries to help resolve or narrow the areas of conflict.  The use of ADR early in a case can result in the more efficient, cost-effective resolution of disputes with greater satisfaction to the parties.  ENE is considered an ADR process.  Another ADR process is Mediation.

The typical approach to mediation is expecting the couple enter mediation voluntarily. However, this is not the situation in Australia today: at least one meeting with a specialist family dispute resolution practitioner is mandatory before lodging an application for a parenting order in the Family Court of Australia. The reasons for the change are complex. Certainly, a major factor in the past two decades has been the marked increase in the breakdown of family relationships, resulting in excessive workloads for courts dealing with family matters.

Arguably, economic drivers have also played a significant role for at least two reasons. First, because of the limitations in the number of available judges and funding to the courts; and, second, because of the cost to the public of court action for matters which can be dealt with more expeditiously and cheaply by other means. Also influential is evidence that points to a major emotional cost to the family of court action; a situation seemingly incompatible with the ‘best interests of the child’ principle which theoretically governs family court actions. Finally, the success of voluntary dispute resolution has convinced decision-makers that mediation is a superior alternative to adjudication for the majority of family conflicts, whether undertaken voluntarily or not Changes to the Family Law Act in 1995 (Family Law Reform Act 1995 (Cth)) saw family mediation enshrined as a ‘primary dispute resolution’ method – in other words, the first port of call before court action was taken. In 2006, the Commonwealth government passed legislation (effective 1 July 2008) to make mediation a mandatory prerequisite for anyone seeking a parenting order with the usual exceptions for people in violent relationships or other situations involving gross power imbalances.

There is something to learn from our neighbors from down under. 

Instead of focusing on Litigation as our primary method of resolving disputes and talking about ADR (Alternative Dispute Resolution) methods as a secondary option, we should reverse that order and be focused on PDR (Primary Dispute Resolution) options of Negotiation, Conciliation, and Mediation as our primary method of resolving conflict.  Only if these fail or are not valid options because of violence or abuse, that family matters are heard by the courts.

If Minnesota wants to positively impact the workload in the courts and provide positive and longer lasting solutions for families in conflict, it will need to take a stronger stand and migrate from suggesting ADR options to mandating couples attempt PDR methods prior to taking any court ordered action. 

The question is…. Are we bold enough to take action or are we just going to talk about what we “should do”?

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