Mediation, Arbitration Offer Paths Around Closed Courts
Break-ups, family discord, custody and financial disputes do not stop because there is a pandemic; to the contrary, there is evidence that the stressors of separation and divorce are exacerbated in our present circumstance.
The Circuit Court for Montgomery County is closed to all but limited emergencies. Even when the court re-opens, it is expected to be months before the court can catch up with pending litigation, with motions and trials delayed and deferred – much less with new filings. There are, however, satisfactory and productive methods of alternative dispute resolution, all of which can be conducted “virtually” with different remote platforms.
Mediation is a process by which a third-party neutral assists the parties, with or without their counsel present, in reaching a negotiated settlement.
Whereas a court is limited to remedies available by law, in mediation the parties are limited only by their creativity. Thinking “outside the box” is the goal. A skillful mediator guides the parties to places where compromise is possible, allowing primary goals to be met — entirely by agreement. Videoconferencing platforms such as Facetime and Zoom allow for private meetings or group caucusing in much the same fashion as they would happen in adjoining conference rooms in a lawyer’s private office.
In arbitration, the parties agree upon an expert family law practitioner who essentially acts as a judge in a “private” trial. The parties themselves agree on the scope of the arbitrator’s authority, the rules and regulations of the arbitration, and the use of documents, witnesses and evidence. The arbitrator’s decision is binding.
When to use Alternative Dispute Resolutions
Mediation and arbitration are tried and true mechanisms for resolving domestic relations cases. Today they are more timely, necessary, efficient, and useful than ever. The economic uncertainty resulting from the pandemic lends itself to solutions that are flexible and can change over time.
For example, whereas in a court (where resolution is months away), a judge’s determination over alimony or child support usually stands unless and until there is a formal modification by way of another court proceeding. In mediation, the parties can devise a far more fluid resolution. Perhaps one amount of support is appropriate for a period of months, to be followed by a different amount or a renegotiation once a furloughed parent returns to work. Perhaps support should be tied to income. As another example, social distancing poses challenges for children travelling between households, which may create the need for creative and flexible work-around arrangements.
At Lerch Early, not only do many of our lawyers serve as mediators, but we also represent clients in mediation. Please check out our website for more information on our lawyers providing these services.
Deborah Reiser is a divorce attorney who practices in Maryland and the District of Columbia. She is increasingly concentrating her practice on mediation during which, as a third-party neutral, she assists parties in reaching negotiated – not litigated – resolutions. You can reach her at 301-961-6094 or [email protected].