This installment of our Alternative Dispute Resolution (ADR) series will discuss options conducted through the courts.
If the parties chose at the outset of a divorce to file the petition with the court, the court will begin setting hearing dates. This does not discount the use of ADR in the process, though. In fact, most Minnesota counties highly encourage ADR steps for every divorce proceeding, even when the petition is filed with the court.
In much of Minnesota, the first court appearance will be an Initial Case Management Conference (ICMC). In an ICMC, the parties appear before a judge and the judge talks through the options with them. They discuss what the main issues will be in this dissolution proceeding and how to go forward. The parties may agree to just negotiate (through their attorneys) on these issues, but commonly they leave the ICMC with plans for a financial, social, or both types of Early Neutral Evaluation (ENE).
Early Neutral Evaluations are unique to Minnesota. They started in Hennepin County and have spread to many locations throughout the state. These are done early in the divorce process and offer an evaluation to the parties which may allow them to proceed forward with better negotiations. There are two kinds of ENEs, Social (aka Custody and Parenting in Anoka County) and Financial. SENEs (and CPENEs) involve child custody and parenting time issues, while FENEs focus on the financial issues of the divorce.
ENEs involve telling and showing the issues to one or two neutral parties. (FENEs usually only have one neutral, while SENEs/CPENEs usually have two.) Neutrals are professionals, sometimes attorneys, sometimes mental health professionals, and they evaluate the case as they think a judge would. The neutrals then tell the parties how they think the case would go if brought to trial. The decisions of the neutrals are in no way binding and can be disregarded or taken to heart—the point is to give the parties an idea of how their case would likely end in court.
Now, the parties are in a better position to negotiate, knowing what the alternative outcome would likely be. This process has proven highly beneficial, and it is generally risk-free, as it is a confidential process, and there is no concern that the ENE outcome or proceedings could be brought up in court in any way. It is solely to be used for evaluative purposes for the parties involved, and it often gives them the information they need to proceed confidently with the negotiation process. Sometimes the case settles following an ENE, but if it does not, the parties (and their attorneys) meet again with the judge to discuss the next step. This next step may be mediation or another form of evaluation, such as a custody evaluation. (More on ADR in child custody proceedings will be covered in the next installment.)