05.01.2019 Written by: Henningson & Snoxell, Ltd.
Minnesota Family Law (Custody and/or Divorce) cases generally require the parties to participate in Alternative Dispute Resolution or ADR. The most widely used forms of ADR are Mediation and Early Neutral Evaluation.
Mediation is a process where the parties, along with their attorneys, meet with a third-party neutral Mediator to assist with resolving their differences. Those differences can include such things as who has custody, amount of parenting time, division of property and financial support.
The Mediator’s role is to assist the parties in keeping communication flowing –focusing on the issues and brainstorming ideas for settlement. The Mediation can take place with all the parties in the same room, or by caucus – where the mediator goes back and forth between the parties in separate rooms. Mediators are neutral parties – they do not represent either side and do not provide legal advice to either party, and they do not have any decision-making authority.
Early Neutral Evaluation, ENE, is a form of Alternative Dispute Resolution. The parties are given a neutral opinion of the strengths and weaknesses of their case. The process usually starts at the beginning of a divorce or custody case. This gets the parties talking about settlement early in the process before people get entrenched in their positions. However, early neutral evaluation can be effective at any point during the case.
There are two separate types of Early Neutral Evaluations. When it relates to evaluating custody and parenting time, a Social Early Neutral Evaluation, or SENE, is conducted. The early neutral evaluation for asset division and financial support is called a Financial Early Neutral Evaluation, or FENE.
For an SENE, two evaluators, typically a male and female, are assigned to the case. A good SENE session should last at least three hours and it is possible to need a follow up session. The process begins with the evaluators explaining the confidentiality requirements, and the way the evaluation will be conducted. It is very important to tell the evaluators all the information they ask for. This needs to be complete and accurate information for them to formulate their best opinions. If information is held back, the evaluator’s recommendations may not be appropriate.
Both parties make presentations to the evaluators. The evaluators leave the room and discuss their impressions of the case. They reconvene and give their feedback and thoughts about the likely outcome of the case. At this point, you can ask the evaluators questions about their recommendations and get any necessary clarification.
Once the evaluators provide their recommendations, you will privately discuss your thoughts about what has been recommended with your attorney. At that time, you will have three options: 1) agree with the recommendations 2) agree with some of the recommendations and propose some changes, and 3) disagree completely and walk away from the discussions.
You will again reconvene with the group and discuss each parties position regarding the recommendations. This starts negotiation of the terms of a settlement agreement. You may be able to reach a full agreement on all issues. Or, there may simply be a temporary agreement or a partial agreement requiring further negotiations.
The FENE process is also evaluative, but the process is quite different. Only one evaluator is chosen. The evaluators are experienced family law attorneys and financial neutrals who have worked as expert witnesses on divorce cases.
During the FENE, everyone typically meets in the same room. The discussion will focus on determining assets and debts, the division of those assets and debts; the evaluation will also discuss issues of financial support such as child support or spousal maintenance. If the parties cannot agree on these items, the evaluator will give the parties an opinion on the likely outcome should the matter would go to court.
The evaluator’s opinions regarding the likely outcome at court help to move the settlement discussions along. It is common for parties to be convinced that their position is the right one. The evaluator helps to show the parties that there may be shortcomings in their case and gives the parties a realistic option for settlement negotiations when they cannot agree.
Having a skilled attorney represent you during Alternative Dispute Resolution is crucial. Henningson & Snoxell’s Family Law attorneys have the compassion and the mediation skills to bring about a timely and favorable solution for you and your children. They know how the process works and how to effectively prepare you and represent you through the process. If you have questions about divorce or any other family matter, please contact our office to set up a consultation.