16.5 Family Law Alternative Dispute Resolution

The PCCE lists alternative dispute resolution as its own family-law cluster: mediation, collaborative practice, arbitration, and court settlement conferences. Domain 2 asks which process is in use, who is allowed to decide what, when ADR is unsafe, and what a paralegal may do in the room. ADR is common because family dockets are crowded and parents will keep dealing with each other for years. It does not replace the court's power over children or the duty to screen for domestic violence.

Mediation

Mediation is a facilitated negotiation. The mediator does not decide the case and does not represent either party. Facilitative mediation — the dominant family model — helps the parties generate options and reality-test. Some court programs are more evaluative (the mediator offers a view of likely court outcomes). Transformative mediation focuses on recognition and empowerment rather than a term sheet.

Court-connected mediation is common for custody and parenting time; property and support may be in the same session. Attendance may be mandatory. Settlement is not. A party who mediates in good faith and does not settle has not "lost" the case.

Typical process: a joint session to set the agenda, then often caucus (private meetings with each side). If the parties reach terms, the mediator or the lawyers draft a memorandum of understanding or a stipulation. The court typically must still approve parenting terms as consistent with the child's best interests. A handshake in the hallway is not a decree.

Confidentiality. Mediation communications are generally privileged or confidential under a uniform mediation act or local rule. Classic exceptions: child-abuse reporting duties, threats of crime or violence, a signed settlement agreement offered to prove the deal, and separately sworn financial affidavits that already belong in the court file. Confidentiality is not a license to hide assets. Disclosure duties in the underlying case still apply.

Exam tell: the mediator facilitates. If the stem says the mediator "awarded custody," the process was mislabeled — that sounds like arbitration or a judicial ruling.

Collaborative law

Collaborative law is a structured settlement process, not a type of mediation. Each party hires a collaboratively trained lawyer. Everyone signs a participation agreement. The group works in four-way meetings with full financial disclosure and often with neutrals: a financial specialist, a child specialist, a divorce coach.

The defining clause is disqualification / withdrawal: if the process fails and a party wants to litigate, the collaborative lawyers must withdraw. New litigation counsel is hired. That sunk-cost rule is what commits the team to settlement. Ordinary lawyer-to-lawyer negotiation has no automatic disqualification if talks fail.

Collaborative practice is voluntary. It is a poor fit when a party is hiding assets, when there is active coercive control, or when a client needs immediate emergency court orders the participation agreement would block. If the client later wants a restraining order or a contested hearing, the collaborative lawyer is out of the case.

Arbitration and settlement conferences

Arbitration uses a private decision-maker who issues an award. Parties can stipulate to binding arbitration of property and, in many places, spousal support. Confirmation in court looks like civil arbitration: narrow vacatur grounds, not a second trial on the equities.

Custody and parenting time are different. Many states limit or forbid binding arbitration of child custody because the court retains parens patriae power to protect the child's best interests. Some allow advisory arbitration or require de novo court review. Do not treat custody as freely arbitrable nationwide. If the stem is a binding custody award from a private arbitrator with no court review, flag the jurisdictional / public-policy problem.

A judicial or magistrate settlement conference is court-supervised negotiation, often evaluative. Early neutral evaluation and parenting coordination (a post-decree helper for high-conflict implementation, with limited decision authority defined by order or statute) appear in some districts. Know the labels; do not invent nationwide parenting-coordinator powers.

When ADR is inappropriate

Domestic violence, coercive control, and severe power imbalance are the first screen. A survivor should not have to "negotiate" face-to-face with an abuser in an unsupervised room. Model standards and many local rules require DV screening. Responses include shuttle mediation (separate rooms or separate times), virtual breakouts, a support person, or a full opt-out into the regular motion track. An active protective order is a flashing light, not a paperwork inconvenience.

Other caution flags: untreated severe mental illness or substance abuse that prevents informed consent; a pattern of hidden assets; a party who cannot participate without an interpreter or disability accommodation; and a collaborative participation agreement that would block emergency relief the client now needs.

Exam tell: if the stem is a restraining-order case and the question is the first step, the answer is safety screening / opt-out or shuttle, not "schedule a joint mediation so they can work it out."

Ethics: the paralegal in the ADR room

The firm's client is one party, not both spouses and not the mediator.

• Do not give legal advice to the opposing party or to an unrepresented party in a caucus. Explaining "what you should take" to the other spouse is unauthorized practice and, if that person is represented, a communications-with-represented-person problem.
• Mediation confidentiality is additional protection for the talks. It does not waive attorney-client privilege to the world, and it does not authorize hiding assets.
• Candor duties remain. Do not help a client use a "confidential" session to conceal an account.
• If the matter is collaborative, calendar the participation-agreement limits. If the client instructs the firm to file a contested action, the collaborative lawyer withdraws; the paralegal does not pretend the same team can try the case.
• Temporary orders remain in force during ADR unless modified. Offers made in mediation generally cannot be quoted later as admissions (mediation privilege and ordinary settlement-evidence principles).

A failed mediation returns the case to the trial track. That is expected, not a ethics violation.

Paralegal packet-prep role

The paralegal's highest-value ADR work is the packet, not hallway advice.

Prepare, for attorney review:

• A mediation memo or position statement: issues, proposed parenting plan, annotated asset-and-debt spreadsheet.
• The last several tax returns, current paystubs, insurance cards, retirement SPDs, and school calendars.
• Draft proposed orders, support worksheets, and QDRO term sheets — drafts, not unsupervised legal advice.
• Logistics: separate arrival times if there is a DV history, virtual-breakout setup, interpreter, and a plan for who sits where.

After an agreement: convert the term sheet into a stipulation the attorney will review; calendar the uncontested or prove-up hearing; do not tell the client the deal is a binding court order before the attorney — and, for parenting issues, the court — have done their parts.

Worked path. The court orders parenting mediation. The paralegal screens the file, finds a year-old protective order, and flags shuttle or opt-out for the attorney before anyone is booked into a joint room. If the case is safe and settles, the paralegal turns the term sheet into a parenting-plan stipulation. If it does not settle, temporary orders stay up and the trial calendar remains. If the same family had signed a collaborative participation agreement and one spouse now wants to file, the collaborative lawyers are disqualified and new counsel appears.

Term-swap. Mediation = facilitator, no decision. Collaborative = participation agreement plus lawyer disqualification. Arbitration = private decision, often limited for custody. Settlement conference = judge-supervised negotiation. Screen DV first. The paralegal prepares the packet and does not advise the other side in caucus.