Besides mediation and arbitration, there are many other processes and different types of divorce that parties can use to resolve their cases without going to court. One is to combine mediation and arbitration, a process sometimes referred to as med/arb. In med/arb, a third party neutral may start out mediating a dispute, and if the parties cannot resolve it by negotiating, the neutral is authorized to render a binding decision. The advantage of this process is that it gives the parties a chance to create their own resolution, but also gives them a binding result outside of court, if they cannot agree. A variation of this is to use one neutral to mediate and another to arbitrate. By dividing these tasks, the parties may be more confident in revealing information in mediation, knowing that another neutral will be making the binding decision.
Another process that parties use to help resolve a dispute is a settlement conference. This process is much like mediation except that the neutral is specifically encouraged to share with the parties his or her opinion as to the likely outcome if the case is taken to court. Knowing this information, the parties may be better equipped to negotiate than if the neutral merely suggests options and facilitates communication, which is more typical of mediation.
A variation on these dispute resolution processes is early neutral evaluation, or ENE. In ENE, the neutral only provides an opinion as to the likely outcome in court but does not seek to facilitate communication between the parties. Parties or attorneys who believe they can negotiate without third-party involvement, but who would like an outside opinion, perhaps by an expert, as to the likely outcome, in order to inform their negotiation, may use this process.
A mini-trial is sometimes used in particularly complex cases to allow the parties to demonstrate portions of their cases for the other side, or to resolve portions of a case without taking those issues to court. The neutral may follow the process by acting as a mediator, or the neutral may be authorized to render a decision on the issues presented. Family law cases seldom rise to the level of complexity that would make a mini-trial useful, but it is always an option the parties may want to consider.
A variation of arbitration is private judging. There are many retired judges who offer their services privately to conduct arbitration or even a full-blown trial for parties who would rather not use the courts. A privately judged trial may be useful in cases where parties have considerable assets or, for some other reason, would prefer the proceeding not be public.
The important aspect of all these processes is that they are voluntary. The parties may use them or not, or they may create their own variations to meet their specific needs. People often feel trapped in the litigation process, particularly in divorce, and many attorneys are unfamiliar with ways to resolve disputes that do not involve the courts. In fact, creative parties and attorneys can develop processes on their own that can better resolve their issues than can a judge. The courts are very supportive of such processes because there are too many cases for the courts to handle efficiently. Divorcing couples, particularly those with children, should carefully consider all of the options for resolving their issues without using litigation. It is also important to consider using attorneys who are familiar with these options, and who are comfortable addressing disputes using non-litigative processes.