The Role of Mediation in Minnesota Divorce

As I have written about in the past, mediation is an important component of the divorce process in Minnesota courts. There is also another process that is similar, but different. This process is known as “Early Neutral Evaluation.”

What is the difference?

In mediation, the role of the mediator is to help the parties reach an agreement. The mediator tries to understand each party’s position, and why it is that the party has that position. The mediator then tries to help the parties come to an agreement by making a bargain that gives each party at least part of what it is they would like to achieve.

Mediation is confidential, which means that the things that are discussed are not allowed to be brought up in court. And, if mediation is unsuccessful, the mediation is concluded without comment by the mediator.

The Early Neutral Evaluation process adds at least one element that mediation does not have. If, at the end of the session, the parties have not reached an agreement, the evaluator will give an opinion as to what he or she believes that court would likely do, if the case came to trial. This opinion is also confidential. It cannot be discussed in court. It is intended to give the parties the benefit of the perspective of an unbiased third party.

There are two kinds of Early Neutral Evaluations – “Social” Early Neutral Evaluations, which deal with custody and parenting time, and “Financial” Early Neutral Evaluations, which deal with support, maintenance, and division of property.

Sometimes a couple who is divorcing will go to both kinds of ENEs, and sometimes they will only go to one. It depends upon what their issues are.

I am an attorney licensed to practice law in Minnesota. I have practiced family law for over 20 years. I have been named a “Super Lawyer.” My own thoughts about mediation and ENEs are as follows:

1. I think that if you are going to mediation or to an ENE, you need the advice of an attorney. You cannot bargain effectively unless you know what the law is, and how the law will be applied to your facts. Mediators and ENE evaluators will not practice law for you, they will not give you legal advice, and if you give up more than you need to, they will not care, as long as the case is settled.

2. Sometimes mediation is appropriate. Sometimes the ENE process is appropriate. Sometimes neither process is appropriate. I have been involved in cases in which the opposing party is very angry and wants to punish his or her spouse. That party may use mediation solely as a way to cause the other spouse to spend more money than he or she needs to spend (mediators and ENE evaluators need to be paid). This unethical, but it is fairly common and there is no effective remedy.

3. Especially before financial mediation or a financial ENE takes place, you need to know everything that can be known about yours and your spouses finances. You and your attorney need to review bank statements, check book ledgers, paycheck stubs, and tax returns. You need to know what your retirement assets are worth. If there are pre-marital components to your assets, you need to know what these are worth. Otherwise, mediation and the Financial Early Neutral Evaluation can be a waste of time.

4. Most importantly, you need to have a sense of “proportion.” In other words, how much do you want to spend – in mediation or litigation – to achieve your goals? If you have a marital estate worth 5 million dollars, then it makes sense to spend an adequate amount of money to trace marital and non-marital claims, and to assert your rights during the divorce process. If you have a marital estate that is worth 5 thousand dollars, you should not be spending a lot of money on attorneys fees, or on mediation or an ENE. Its that simple.

If you have questions about this, please feel free to call me directly at (952) 270-7700. My name is Daniel Fiskum, I am a Minnesota Divorce Lawyer, and I would be happy to help you.

Daniel Fiskum is a Minnesota divorce attorney who has been practicing since 1992. He is a graduate of the University of Minnesota and has been named a "Super Lawyer" by the Minnesota Journal of Law and Politics. Mr. Fiskum is currently writing a book for attorneys and non-attorneys entitled "The Streetfighter's Guide to Divorce," which is scheduled for publication in May, 2010. Many of his blog entries will appear in the book. You may contact attorney Fiskum directly at (952) 270-7700. His office is located in the Carlson Towers in Minnetonka, Minnesota. The Fiskum Law website is found at www.fiskumlaw.com.

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