SERVICES PROVIDED
Krambeer Mediation offers several
options to effectively meet the Alternative Dispute Resolution needs in your
case. Choose from:
A
Mediation/Arbitration hybrid, with the third party neutral authorized to make a
decision if mediation is not successful
Social
or Financial Early Neutral Evaluation in Family Court Matters
TRADITIONAL MEDIATION AND “MED/ARB”
HYBRID
Parties to a dispute can voluntarily
choose to have a neutral third party help them resolve it so they can stay out
of court or can avoid going to trial if court action has already started. No one can be forced to reveal information in
mediation, but each party is asked to agree that whatever information they do
share will be truthful.
It is also a confidential process –
nothing said in mediation can be used in court, nor can the mediator or their
notes be subpoenaed into court.
(However, if something said in mediation leads to one party further
investigating the other party’s financial situation, in accordance with Court
Rules, the information produced by the investigation might be admissible.)
Where financial and/or contract issues
are involved, the mediator helps the parties put together the information and
documents needed to first get the proper foundation in place for discussing
what’s at issue. That way, the parties
and the mediator can all be using the same information as they work to resolve
the dispute.
In some cases, it’s helpful to have
input from a neutral accountant, appraiser, business valuation expert, tax
expert, or other outside professional.
The parties may agree to jointly hire one to share their input and
opinions with them and the mediator.
The mediator guides the discussion and
helps the parties explore options and find common ground about what’s in
dispute. Once agreement is reached, or
when another mediation session is scheduled, the parties can have the mediator
prepare a Memorandum as to what has occurred in the mediation. This document is not intended to, nor can it
be, filed with the Court, however.
In some cases, a binding mediated
settlement agreement may be prepared, but it will likely still need to be
approved by the Court in the form of a more formal court document. In other instances, the parties will just
have an attorney for one of them draw up a formal settlement document based on
their agreements in mediation to be presented to the Court for approval. (The mediator cannot give legal advice to the
parties, and each is urged to seek their own legal counsel.)
If the mediation is not successful,
the Court can only be told that mediation occurred and was not successful, or
that partial agreements were reached that the parties want the Court to
approve, with the unresolved issues to be decided by the Court.
A hybrid process called
mediation-arbitration (“med/arb”) starts out as traditional mediation. However, if the mediation process is not
successful, the parties give the third party neutral authority to actually make
a binding decision to resolve their dispute.
That avoids the necessity for starting all over again in court, or if a
case has already been filed, going to trial.
The parties receive a written decision from the neutral.
EARLY NEUTRAL EVALUATION
Family Courts in many counties have a
process in place called Early Neutral Evaluation (ENE). The Court can only order parties to
participate if they agree to do so.
There are variations from county to county, but what follows applies in
most cases.
Social Early Neutral Evaluation
(SENE) - a
process in which the parents (and a parent’s attorney if they have hired one)
meet with two neutral Evaluators, one male and one female, to present their
position on custody and/or parenting time (visitation). It’s strictly a voluntary process that
a party or the Evaluators can terminate.
It’s also a confidential process, and nothing discussed during
SENE sessions is admissible in court, nor can an Evaluator or their file be
subpoenaed into court.
Each parent gives her/his preferences
and reasons as to why theirs should be adopted by the Court and answers
clarifying questions. If there are any
partial agreements, those are noted as well.
Then, the Evaluators meet privately to discuss the information and
arguments presented.
They and the parents then get back
together. The Evaluators state how they
believe the Court would decide unresolved issues. A parent who has an attorney meets separately
with them to discuss what the Evaluators have stated. Each party then says whether they are willing
either to agree with the Evaluators’ opinion or are willing to use that opinion
as a framework for discussing settlement.
If both parties agree to continue the process, mediation takes place.
Once an agreement is reached, it is
put in writing and signed by each party and their attorney and forwarded to the
Court. If no agreement is reached, the
Court may only be told the parties met for SENE and were not able to reach an
agreement.
Financial Early Neutral Evaluation
(FENE) – is a
process in which the parties (and a party’s attorney if they’ve hired one) meet
with a neutral Evaluator to present their position on how property and debts
should be divided and, where it applies, what should be done as to child
support and/or spousal maintenance (alimony).
It’s strictly a voluntary process that a party or the Evaluator
can terminate. It’s also a confidential
process, and nothing discussed during FENE sessions is admissible in court, nor
can the evaluator or their file be subpoenaed into court.
Each party gives her/his position and
reasons why it should be adopted by the Court and answers clarifying
questions. If there are any partial
agreements, those are noted as well. The
Evaluator then takes time privately to review and process the information and
arguments presented.
The Evaluator and parties get back
together, and the Evaluator states how they believe the Court would decide
unresolved issues. A party who has an
attorney meets separately with them to discuss what the Evaluator has
stated. Each party then says whether
they are either willing to agree with the Evaluator’s opinion or are willing to
use that opinion as a framework for discussing settlement. If both parties agree to continue the
process, a mediation phase takes place.
Once an agreement is reached, it is
put in writing, signed by each party and their attorney, and forwarded to the
Court. If no agreement is reached, the
Court may only be told the parties met and were not able to reach an agreement.
PARENTING CONSULTANT FOR SEPARATED OR
DIVORCED PARENTS
If parents can’t resolve disagreements
regarding visitation, school attendance, children’s activities, or other
co-parenting issues, we can be hired to provide Parenting Consultant
services. Ideally, the parties will
reach agreement with the help of the PC.
But, if that doesn’t happen, the PC is given the authority to decide the
issue, with a written Decision provided to the parties. Unless agreed by the parties, a PC may not
change custody of children, however.
A written Parenting Consultant
Agreement is signed by both parties, and satisfactory financial arrangements
are made in advance. The Agreement is
approved by the Court, and a Court Order confirming the arrangement is entered.
This process helps the parents stay
out of court and do everything possible to reach an agreement instead.
CONSENSUAL SPECIAL MAGISTRATE
As permitted by Court Rules, we can
provide CSM services where the expertise of an experienced attorney as
decision-maker is sought, or where the parties want their case going to trial
sooner than waiting their turn on the Court’s calendar.
A Pre-trial hearing is held first to
narrow the issues to be tried, explore settlement possibilities, and put any
partial Stipulations on record. Detailed
Findings of Fact will be part of a written decision, which will be rendered on
a timely basis. This process is binding and includes the right of appeal to the Minnesota
Court of Appeals.
NON-BINDING ADVISORY OPINION
The parties may want input from an
experienced third party as to how they believe it is likely a court would
decide their dispute. Information about
the dispute and each party’s position and the basis for their position are
presented to the neutral. After
privately considering the information and arguments offered, the neutral
advises the parties how they believe the Court would decide the issues
presented.
While not binding, an advisory opinion
can often be a springboard for the parties entering into settlement
discussions.
The parties agree in advance that the
process is confidential, and that neither anything presented or said nor the
Advisory Opinion itself is admissible in court, nor can the neutral or anything
in their file be subpoenaed into court.
A mini-trial is a more formalized form
of advisory opinion and is used to develop a basis for
settlement negotiations. The neutral’s
advisory opinion is not binding unless the parties agree it’s binding and enter
into a written settlement agreement.
ARBITRATION
Arbitration is a process in which a neutral third party renders a specific
decision on all issues after presiding over an adversarial hearing at which
each party presents their position. If the parties agree in writing the
arbitration will be binding, the proceeding is conducted pursuant to the
Minnesota Uniform Arbitration Act (Minn. Statutes Sec. 572.08 to 572.30). If the parties don’t agree arbitration will
be binding, the proceeding is conducted pursuant to Rule 114.09.
CREATIVE CASE-SPECIFIC METHODS
DEVELOPED BY THE PARTIES AND THE NEUTRAL
In certain cases, there may be unusual
aspects to the dispute or elements of the dispute that require the parties and
the third party neutral to come up with a dispute resolution process unique to
that situation. If a lawsuit has been
filed, Court Rules require that the parties explain their agreed-upon process
to the Court.
CHRISTIAN CONCILIATION
Christian Conciliation is a process
involving a third party neutral helping parties to a dispute resolve it using
scriptural principles. The processes
available are similar to those set out above for more traditional dispute
resolution. However, a binding result
cannot be an outcome unless all of the requirements of Court Rule 114 and other
applicable Rules and Statutes are followed as part of the process. The processes and principles used are
generally those taught by Peacemaker Ministries (see www.peacemaker.net ), through which Rich has received
training.