ADR stands for alternative dispute resolution. ADR was another word for medition, which became popular in the early 1980’s when mediation was in its infancy in family law. Prior to that, the primary form of resolving family law disputes was litigation. Although settlement conferences were always part of the litigation process, they usually took place late in the process, after trial preparation was completed. The way cases were settled usually involved a third party who gave an opinion about how the parties should resolve their disputes, and various coercive techniques were employed by parties and the settlement assistant to force the parties to settle. A fair settlement was said to be one where no one was happy.
Mediation, which also involves seeking a settlement, differs from traditional case settlement in its underlying assumptions, skills, tools, and benefits. It is a problem-solving tool where settlements are designed and agreed upon by the parties in a structured way that helps them maintain a civil relationship and avoid impasse. It begins early in the process, and it is controlled by the parties by examining their underlying needs rather than exploiting their overriding fears. A good settlement is one that addresses each parties needs and interests in a better way than any alternative.
Family law mediation initially began in the court system, in the area of child custody disputes, where, in California, such mediation became mandatory. In time, private mediators began to offer their services and more and more attorneys began to mediate as well as serve as consulting attorneys to mediation.
In the 1990’s, collaborative law, another alternative tool for resolving family law matters, began to develop. In a collaborative process, each person has a lawyer who is hired to work on reaching a settlement not preparing for trial. The collaborative team may also include coaches, financial consultants and child experts. If either person wants to litigate, both parties have to get new lawyers and experts.
Both mediation and collaborative law are consensual dispute resolution processes (CDR). That means that the parties must agree in order to resolve the dispute. More and more frequently, parties are turning to these processes in lieu of, or at least before, they embark on litigation. What had previously been “alternative” has become the first and often last stop in most divorces. Those few who end up actually litigating are in the minority.
For this reason, those of us who practice in this field are rejecting the use of the term “alternative” dispute resolution, which marginalizes the process, and calling ourselves by the name which describes the most salient feature of our work- its consensual nature.
The CDR label has already gained popularity in other jurisdictions, such as British Columbia, which adopted the label to reflect their changing family law culture. In 2003, BC established the Family Justice Reform Working Group “to explore options for fundamental change in the family justice system to better serve parents and children who use it.” According to Jill Dempster, Legal Counsel to the BC Ministry of Attorney General, her office is reviewing the Family Relations Act of 1978 to “make the law modern, understandable, and reflective of a commitment to consensual dispute resolution options…
With respect to the family justice system, there is an emphasis on deliberately moving away from adversarial approaches to dispute resolution and towards a problem-solving approach that utilizes collaborative processes such as mediation.”
Based on a parliamentary report issued in 2005, Australia, too, has passed the biggest reforms to their Family Law Act in 30 years. Their aim was “to achieve a cultural change, from separation being seen mainly as a legal issue to it being seen mainly as a relationship issue.” They adopted a national agenda to protect the children of divorce and to examine all laws and procedures from this focal point. They concluded that children cannot afford settlement processes that further exacerbate conflict between their parents. They adopted the principle that assisting the adjustment of children is the core business in divorce resolution and that mediation and collaborative practices, formerly called alternative dispute resolution (ADR) should, instead, be called Primary Dispute Resolution.
I hope you, too, will spread the word that there is a better way to divorce and it is consensual dispute resolution, the first not last resort for resolving family disputes.
Fern Salka is a Certified Family Law Specialist with a law and mediation practice in Brentwood. She is the former chair of the Los Angeles County Bar Association Family Law Section and is listed by Los Angeles magazine as a SuperLawyer for 2004 and 2005.