One of the issues that crops up frequently when I am advising potential clients of their legal options is the availability of ADR or alternative dispute resolution. ADR can offer a potential or current client an alternate path to the cost, time, and stress of traditional litigation.
As a trained mediator in addition to my work as an attorney, I feel that with the right client and set of circumstances, mediation can be a far more quick and painless way to settle disputes in family law than traditional litigation. Any ADR process will require good faith, engagement and effort on the part of both parties to move towards a resolution. It is, at its heart, a cooperative process.
Today I wanted to discuss two different types of ADR: mediation and conciliation. Both involve sitting down with a neutral third party and attempting to talk through the problem to a compromise in a less formal and considerably less costly setting than a courtroom.
However, there are large differences between the two: the first is that a conciliator actively evaluates each parties claim and position from a legal standpoint. A conciliator does not decide legal issues in a binding way. Their role is closer to that of a neutral third party attorney. The parties have the option to meet together or separately with the conciliator. The parties then voice their goals and concerns. The conciliator will then evaluate their respective legal positions, and attempt to work out a solution between the two parties in light of that evaluation.
Appointed conciliators usually send a report back to the court at the end of the conciliation. Conciliation is typically offered by the court pending litigation. In the probate court, conciliation is usually offered at the pretrial hearing.
In contrast, mediators act as a neutral third party who facilitates a discussion between the people in the dispute. A mediator can neither give legal advice to a party, nor can he or she evaluate the strengths of a party’s claim. A mediator also cannot predict a likely outcome at trial. Generally a mediator will meet with both parties at the same time and attempt, through a group discussion, to facilitate a mutually agreed upon solution.
Another difference is that a conciliator, unlike a mediator, must be admitted to practice law to the state bar. While attorneys (myself included) can be mediators; conciliators, by virtue of giving legal opinions, must be attorneys. A conciliator must also complete at least eight hours of additional training and other continuing education requirements.
In Massachusetts, court-certified mediators also have significant training requirements: they have between 30-40 hours of additional mediation training as dictated by the Supreme Judicial Court Standards for Neutrals. If they work in a specialized area like family law, certified mediators also generally have additional mandated training.
With either of these ADR methods any solution created is not binding until it is submitted to a court with the blessing of both parties. ADR offers a less costly, less time consuming, and more cooperative alternative to traditional litigation. If you are interested in my mediation or conciliation services, please feel free to call my office.