Insight

Family Matters

Early case management and alternative dispute resolutions seek to simplify some separations in Minnesota.

Family Matters
KG

Kathryn Graves

June 30, 2016 02:30 PM

The practice of family law has changed dramatically since I began practicing in the 1980s, when family court cases were often lengthy and resolved by court decision, but approximately 15 years ago, the Hennepin County, Minnesota, Family Court implemented “early case management” (ECM) for divorce, custody, and paternity cases. With ECM, the court intervenes at the early stages of the process to encourage the informal exchange of information, and the use of alternative dispute resolution (“ADR”) to settle cases. ECM is now used throughout Minnesota courts.

The result of ECM and early referrals to ADR has been a reduction in contentious pretrial motions and better court oversight to move cases through the court system in a timely manner. This process also gives the parties greater input in the outcome of their cases. As a result, parties who settle their cases through ADR are generally more satisfied with the outcomes and are less likely to return to court for post-decree disputes.

Early Case Management

An “initial case management conference” (ICMC) is scheduled soon after a family law case is filed. It is an informal hearing, best described as a “meet and greet” between a judicial officer, the parties, and their lawyers. No contested issues can be presented to the court before the ICMC, and during the ICMC, the parties and their counsel identify the areas of dispute and attempt to agree on a “case plan” to resolve the case, including the exchange of financial information and the selection of ADR. Telephone status conferences between the attorneys and the court are scheduled throughout the case to keep it moving toward resolution.
One negative consequence of ECM is that some temporary issues that may require early court intervention are delayed beyond the ICMC—for example, when a dependent spouse needs financial assistance, or the parents are unable to agree on an interim parenting schedule. On the other hand, the delay also acts an incentive to parties to settle temporary issues on their own.

Mediation

Mediation is the most commonly used form of ADR and is defined as “a forum in which a neutral third party facilitates communication between the parties to promote settlement.” Prior to mediation, financial information and parenting proposals are exchanged. The mediator then meets with the parties and their attorneys to assist in negotiating a resolution. Settlement discussions and agreements reached in mediation are confidential and are nonbinding, unless the parties and attorneys sign a written, binding agreement at the conclusion of mediation.

Mediation is an appropriate ADR process for most family law cases, but may be more successful later in the case, when all relevant information has been exchanged and the parties are emotionally ready to settle. Mediation may not be appropriate in cases involving domestic abuse because of the power imbalance in the parties’ relationship.

Early Neutral Evaluations

An early neutral evaluation (“ENE”) is an ADR process used at the beginning of the case and may be used for custody/parenting disputes (a “social” ENE) or financial issues (a “FENE”). An ENE is a “forum in which attorneys [and/or the parties] present the core of the dispute to a neutral evaluator…The neutral then gives an assessment of the strengths and weaknesses of the case,” and that opinion is used to assist in negotiating a resolution. ENE is also a confidential process, and the opinion of the neutral and the parties’ settlement discussions during the ENE are inadmissible in court, unless a written ENE agreement is signed.

The result of early case management and early referrals to alternate dispute resolutions has been A reduction in contentious pretrial motions.

ENEs are cost effective because they occur at the beginning of the case and may lead to a quick resolution. The FENE process works best for noncomplex marital estates for which the need to exchange financial information or value assets is limited. SENEs can be used for any custody dispute but are not advisable if mental health, chemical dependency, or domestic abuse issues
are present.

Arbitration

Arbitration is “a forum in which a neutral third party renders a specific award after presiding over an adversarial hearing at which each party and its counsel present its position.” The arbitrator is used instead of a judge. Arbitration is not confidential and is conducted like a trial, with testimony and evidence presented. Unlike a mediator or ENE neutral who would only facilitate settlement, an arbitrator decides the dispute. Arbitration is nonbinding unless the parties stipulate in writing to make it binding. The arbitrator’s decision is generally not appealable.

Since the arbitrator’s decision cannot be appealed, arbitration is a good ADR process to use for limited issues where the consequences to the parties of the decision are less impactful, such as a dispute over the division of the parties’ household furnishings.

Collaborative Law

Collaborative law is an alternative form of resolving divorce cases. The parties agree not to litigate and use only facilitative processes, such as mediation, to settle the case. Nothing is filed with the court until the case is finally settled. Collaborative law may work for low-conflict situations. It is not appropriate where domestic abuse has occurred, where there is a significant power imbalance between the couple, or when mental health or chemical dependency issues are barriers to reaching a
fair resolution.

--------------------

Kathryn A. Graves practices family law as a shareholder with Henson Efron in Minneapolis, Minnesota. To learn more about her practice, please see her bio here or email her at kgraves@hensonefron.com.

Related Articles

Destiny Fulfilled


by Sara Collin

Was Angela Reddock-Wright destined to become a lawyer? It sure seems that way. Yet her path was circuitous. This accomplished employment attorney, turned mediator, arbitrator and ADR specialist nonpareil discusses her career, the role of attorneys in society, the new world of post-pandemic work and why new Supreme Court Justice Ketanji Brown Jackson represents the future.

Interview with Lawyer Angela Reddock-Wright

Meeting Halfway


by Julia B. Meister

To resolve family and business disputes including wills, trusts, estates and more, mediation is often a more effective, gentler and cheaper option than litigation.

Mediation to Resolve Wills, Trusts, Estates

It’s a Gas, Gas, Gas


by Best Lawyers

Michael Polkinghorne discusses why arbitration or mediation is a better option.

An Interview With White & Case LLP

How to Advise Clients in International Arbitration and Mediation


by Best Lawyers

Karl Pörnbacher discusses how his firm stays at the forefront of advising clients.

An Interview With Hogan Lovells

An Interview With Egorov Puginsky Afanasiev & Partners


by Best Lawyers

Russia's 2020 "Law Firm of the Year" in Arbitration & Mediation Law

An Interview With Egorov Puginsky Afanasiev

A Startup Accelerator Program Sets Cuatrecasas Apart


by Best Lawyers

Miguel de Almada and Frederico Bettencourt Ferreira from the Portuguese firm discuss their 2019 "Law Firm of the Year" award for Litigation and Arbitration.

Cuatrecasas "Law Firm of the Year"

IN PARTNERSHIP

MEDIATION: A Particularly Powerful Tool in Family Law


by Susan Latham Steffey

Mediation can be the solution to many questions surrounding family law disputes. One lawyer explains several of the benefits to family law mediation.

Two women and man having discussion with purple background

"Lawyer of the Year"


Lawyer smiles while posing for headshot photo

Robin Meadow

Appellate Practice

Los Angeles, CA

2024

The Resolution Solution


by John Oh

The pandemic threw sand in the gears of America’s slow-moving trial system, making mediation an increasingly attractive option for plaintiffs and defendants.

Vintage image of man with fists up with yellow backdrop and oversized hand pointing

Is Family Law Mediation the Future of Conflict Resolution?


by Best Lawyers

In recent years, family law mediation has started to emerge as the preferred option over traditional forms of litigation, offering clients an amicable and efficient alternative of conflict resolution.

Silhouettes of family split into multiple sections

A Time for Choosing


by Brandon D. Saxon and Debra Ellwood Meppen

Vast changes in the law, at both the federal and state level, have made it even harder to get through the already dense thickets of employment arbitration. What do businesses need to know going forward?

Suited man holding up falling walls with gray and yellow backdrop

The Great Debate: Do You Arbitrate Commercial Disputes?


by David K. Taylor

In a civil case, is it wiser for a business to try to persuade the counterparty to agree from the outset to arbitration—or potentially to place its very solvency in the unpredictable hands of a judge and jury?

Hand moving multicolor blocks

Protecting Small Business Owners: Trial Experts Connick Law LLC Notoriously Successful with Fire Litigation


by Justin Smulison

When small business owners become the target of insurance companies in fire-related lawsuits, hiring a firm with a reputation for understanding the science of fire suppression trials can save their livelihoods.

Gold Indoor Sprinkler Heads on Red Background

Measuring Success by Results


by John Fields

Recognized Best Lawyers®* recipient Joseph F. Brophy on how his Firm determines success.

Measuring Firm Success

Will Recent Boeing Settlements Create Tailwinds In Corporate Law?


by Justin Smulison

Prominent litigation against Boeing is setting a precedent of accountability, professionalism and commitment among company boards as well as ushering ESG further into the courtroom to help monitor and prevent safety issues.

Recent Boeing Settlements and Corporate Law

Racial Discrimination Suit Against NFL May End in Arbitration


by John Ettorre

A former Miami Dolphins head coach is up against the NLF in a discrimination case that is on a path to arbitration; the NFL remains focused on equality for their diverse coaching staff.

Arbitrating Discrimination Suit Against NFL

Trending Articles

Announcing the 2023 The Best Lawyers in America Honorees


by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

Announcing the 2022 Best Lawyers® in the United States


by Best Lawyers

The results include an elite field of top lawyers listed in the 28th Edition of The Best Lawyers in America® and in the 2nd Edition of Best Lawyers: Ones to Watch in America for 2022.

2022 Best Lawyers Listings for United States

2021 Best Lawyers: The Global Issue


by Best Lawyers

The 2021 Global Issue features top legal talent from the most recent editions of Best Lawyers and Best Lawyers: Ones to Watch worldwide.

2021 Best Lawyers: The Global Issue

The U.S. Best Lawyers Voting Season Is Open


by Best Lawyers

The voting season for the 31st edition of The Best Lawyers in America® and the 5th edition of Best Lawyers: Ones to Watch® in America is officially underway, and we are offering some helpful advice to this year’s voters.

Golden figures of people standing on blue surface connected by white lines

How To Find A Pro Bono Lawyer


by Best Lawyers

Best Lawyers dives into the vital role pro bono lawyers play in ensuring access to justice for all and the transformative impact they have on communities.

Hands joined around a table with phone, paper, pen and glasses

The Best Lawyers in Australia™ 2024 Launch


by Best Lawyers

Best Lawyers is excited to announce The Best Lawyers in Australia™ for 2023, including the top lawyers and law firms from Australia.

Australian Parliament beside water at sunset

How Palworld Is Testing the Limits of Nintendo’s Legal Power


by Gregory Sirico

Many are calling the new game Palworld “Pokémon GO with guns,” noting the games striking similarities. Experts speculate how Nintendo could take legal action.

Animated figures with guns stand on top of creatures

What the Courts Say About Recording in the Classroom


by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?

Inflation Escalation


by Ashley S. Wagner

Inflation and rising costs are at the forefront of everyone’s mind as we enter 2023. The current volatile market makes it more important than ever to understand the rent escalation clauses in current and future commercial lease agreements.

Suited figure in front of rising market and inflated balloon

The Upcycle Conundrum


by Karen Kreider Gaunt

Laudable or litigious? What you need to know about potential copyright and trademark infringement when repurposing products.

Repurposed Products and Copyright Infringemen

Best Lawyers: Ones to Watch in America for 2023


by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

A Celebration of Excellence: The Best Lawyers in Canada 2024 Awards


by Best Lawyers

As we embark on the 18th edition of The Best Lawyers in Canada™, we are excited to highlight excellence and top legal talent across the country.

Abstract image of red and white Canada flag in triangles

8 Different Types of Criminal Defenses in Law


by Best Lawyers

Learn about the different types of criminal defenses available in law, including innocence, self-defense, insanity and more. Protect your rights today.

Silver handcuffs laying on finger printed papers

Wage and Overtime Laws for Truck Drivers


by Greg Mansell

For truck drivers nationwide, underpayment and overtime violations are just the beginning of a long list of problems. Below we explore the wages you are entitled to but may not be receiving.

Truck Driver Wage and Overtime Laws in the US

Choosing a Title Company: What a Seller Should Expect


by Roy D. Oppenheim

When it comes to choosing a title company, how much power exactly does a seller have?

Choosing the Title Company As Seller

The 2024 Best Lawyers in Spain™


by Best Lawyers

Best Lawyers is honored to announce the 16th edition of The Best Lawyers in Spain™ and the third edition of Best Lawyers: Ones to Watch in Spain™ for 2024.

Tall buildings and rushing traffic against clouds and sun in sky