Alternative Dispute Resolution, Settlement, and Collaborative Practice
Mediation and settlement
Mediation is confidential and privileged in most states, with exceptions for child abuse, threats, and mandatory reporting. The mediator facilitates but does not give legal advice or decide the case. Screen for domestic violence and power imbalances; mediation may be inappropriate or require shuttle mediation. A mediated settlement agreement is generally enforceable as a contract if it is written, signed, and not tainted by fraud or duress.
Arbitration and collaborative practice
Arbitration may be binding or nonbinding. Some jurisdictions limit arbitration of custody and child support because those issues affect third-party and public interests. Collaborative practice uses a participation agreement disqualifying the lawyers if the process fails; neutral experts may be retained. Cooperative divorce is less structured and does not require disqualification.
Worked example
At mediation, one spouse says, 'I'll sign anything if you don't tell the court about the hidden account.' The mediator should not conceal evidence or give legal advice. The paralegal should document the statement and alert the attorney, because settlement cannot be used to defraud the court.
Traps
Treating mediation as legal advice; failing to screen for violence; drafting an ambiguous settlement; missing the arbitration award deadline; assuming collaborative confidentiality protects everything.