Adjudication versus ADR in Family Law, in Search of Deeper Dialogue and Understanding By: Sandra Crawford, JD, Mediator, Collaborative Lawyer

Adjudication versus ADR in Family Law, in Search of Deeper Dialogue and Understanding

By: Sandra Crawford, JD, Mediator, Collaborative Lawyer1

As a family law attorney who has worked it the Alternative Dispute Resolution (ADR) space for over 30 years now, I have been often called upon to explain to clients and professionals alike how conflict resolution using ADR models (which for me are Collaborative Practice and Mediation) and traditional adjudication (litigation) differ. One of the best explanations I have come across in my many years of studying ADR is from the work of Canadian professors, Cheryl A. Picard (Carleton University) and Kenneth R. Melchin (Sanit Paul University). Their book, Transforming Conflict Through Insight (University of Toronto Press 2008), is written for practitioners as well as students of conflict resolution. Clients for the most part don’t care about the intellectual underpinnings of conflict resolution; they just want their issues tended to and resolved and to move past their disputes and get “back to normal.”

Which model a client uses to address their legal disputes can have a profound impact on things like how long they will be in process and how sustainable their outcomes will be depending on the model they choose. Therefore, it falls upon conflict resolution practitioners (attorneys, mediators, facilitators, arbitrator) to be well grounded in the differences and to be able convey the pros and cons of all models of conflict resolution, be that adjudication or any other conflict resolution model, preferably before clients proceed to spend their money, time, and emotional capital.

To further understanding and dialogue, I offer Picard and Melchin’s explanation of the differences here:

An important feature of adjudication is that resolving the particular dispute is often not the only aim of the process because adjudicators must consider cases, not simply on their own terms, but also as precedents for future conflicts. Consequently, cases often are treated as types rather than strictly as of particular importance to the people involved. Disputants often play a limited role in adjudications and proceeds frequently unfold in an adversarial and highly regimented environment. Adjudicators’ ruling determine the winners and losers, and normally the parties go into the process expecting to abide by the rulings…

Mediation is quite different from adjudication; in fact, it is an alternative to adjudication often referred to as alternative dispute resolution (ADR) process. Mediation is generally understood to be more flexible and more user-friendly…While mediation takes many diverse forms, it is typically understood to be a consensual process in which an impartial third party plays an active role in helping disputants themselves work out mutually acceptable solutions…Mediators have no authority to impose decisions…Mediators do their work by facilitating communication between parties. This can involve helping clarify issues and beliefs, exploring relationships, modeling communication, probing for underlying assumptions and interests, helping overcome obstacles, and charting paths towards consensual outcomes. Mediations are highly participatory, they aim at mutually agreeable outcomes, and because they need not be precedent setting, they can focus intensely on the full range of details and needs that the participants find relevant to this particular conflict.

Collaborative Practice practitioners employ mediation skills (i.e. facilitating communication, mirroring resolution focused behaviors, probing needs and interests, developing options for mutually agreeable outcomes, etc.) in their conflict resolution work. So, a similar explanation of how mediation and adjudication differ can be applied to how Collaborative Practice and adjudication differ.

Not all mediators are lawyers. They don’t have to be. Mediation is an unregulated profession in Illinois and in many states around the country. Not all Collaborative Practitioners are lawyers as that model is interdisciplinary in nature and includes mental health and financial professionals. As this is an article addressed to lawyers, I will keep my comments aimed there. I hope it goes without too much reflection that lawyers play a critical role in: (a) helping people effectively move through conflict to resolution, and (b) in the administration of justice. As lawyers we are “public citizens” as reflected in Article VII. Illinois Rules of Professional Conduct of 2010, Preamble: Lawyer’s Responsibilities (1). The RPC goes on to state at Subsection (6):

As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. In addition, a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.

All the above informs my belief that lawyers have an obligation, even if they don’t offer ADR services themselves, to understand the various models and advise clients from the outset of representation about the entire spectrum of dispute solution models – from adjudication with a full-dress trial to kitchen-table resolutions with the assistance of limited scope representation lawyers2.Ergo, the need to be able to effectively describe the different models and help clients choose the one that best fits their circumstances, their belief and value systems, their family traditions, and their purses.

If we use Cook County, Illinois, for example – of the approximately 20,000 newly filed divorce cases each year anecdotally it is estimated that approximately only 5% of those cases are disposed of with a trial3. Therefore, with anecdotally 95% of all family cases being disposed of with a Marital Settlement Agreement4, it bears examination how and when those agreements are stuck. Is it on the eve of trial when a significant amount of court time and the parties’ resources have been exhausted? Or is it, like with most cases filed, at the conclusion of a mediated divorce or one handled with a Collaborative Process, close in time to the actual filing of the Petition? The latter saves significant court resources as cases filed at the conclusion of those ADR processes are filed as uncontested matters and typically require only one court appearance. Now, in counties which offer prove-up by Affidavit only, the court system and personnel are no longer taxed with the time and resources it takes to conduct a prove-up hearings. The savings the use of ADR returns to the county courts, funded by taxpayers’ dollars, bears deeper examination. While there has been a lot written on the time and cost savings to parties using ADR, at this juncture there is little examination of how employing ADR model to resolve disputes improves the overall effectiveness of the legal system and provides greater access to justice for the public. I would go as far as to say that many ordinary citizens facing divorce and separation are generally unaware that they are free to make their own decisions “within the shadow of the law”5 and many practicing family lawyers remain unaware or are unwilling to learning about the spectrum of ADR models (mediation, Collaborative Practice, arbitration, limited scope representation) and advise their clients accordingly. Ergo, the need for a deeper dialogue and greater understanding.

1Sandra is an Illinois family lawyer who received her mediation training in 1993 from the Center for Conflict Resolution and her Collaborative Practice training from the Collaborative Law Institute of Illinois (n/k/a Collaborative Divorce Institute of Illinois) in 2002. She co-teaches the 40-hour Divorce Mediation Training at Northwestern University School of Professional Studies in Chicago and lectures and writes frequently on the topic of Collaborative Practice and Limited Scope Representation, has received the peer review Super Lawyer recognition for 15 years, and is the 2018 recipient of the ISBA Matthew Maloney Tradition of Excellence Award.

2See, Illinois Rule of Professional Conduct 1.2 lawyers can “limit the scope of representation if the limitation is reasonable under the circumstances and the client gives informed consent.” Limited scope representation may also be called unbundled or a la carte legal services” and Illinois Supreme Court Rule 13, c, (6) Limited Scope Appearance. An attorney may make a limited scope appearance on behalf of a party in a civil proceeding pursuant to Rule of Professional Conduct 1.2(c) when the attorney has entered into a written agreement with that party to provide limited scope representation. The attorney shall file a Notice of Limited Scope Appearance, using an approved statewide form, identifying each aspect of the proceeding to which the limited scope appearance pertains. An attorney may file a Notice of Limited Scope Appearance more than once in a case. An attorney must file a new Notice of Limited Scope Appearance before any additional aspect of the proceeding in which the attorney intends to appear. A party shall not be required to pay more than one appearance fee in a case.

3The Illinois Courts Statistical Reports does not appear to keep statistics on how many family law cases went to trial versus those deposed of my entry of a consent decree.

4750 ILCS 5/502 ( Illinois law promotes amicable divorce and sets forth guidelines of such in the Illinois Marriage and Dissolution of Marriage Act.

5A term coined by attorney Pauline H. Tesler, a State Bar of California Board of Legal Specialization, certified family lawyer since 1984 and considered the “god mother” of Collaborative Practice having conducted trainings in the model since the 1990’s across North America, the United Kingdom, Ireland, Switzerland, France, Israel, Australia, New Zealand, and South Africa. For that work, the American Bar Association in 2002 conferred upon her its first “Lawyer as Problem Solver” award.