Alternative Dispute Resolution for Minnesota Child Custody
Alternative dispute resolution (ADR) is the term for conflict resolution methods that encourage parents to compromise on a parenting plan and focus on their child's well-being.
Unless you've experienced domestic abuse with the other parent, Minnesota law requires you to try to resolve your custody disagreement through ADR. The judge often suggests or requires a specific type of ADR. You can also ask the court to order the other parent to attend a certain type of ADR with you.
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The basics of ADR
Most ADR methods — like mediation, collaborative law and parenting time expediting — share basic commonalities.
Arbitration, however, is unique. It's not discussed below because it's rarely used to resolve child custody.
What happens in sessions
An ADR professional interviews you and the other parent and guides both of you in conversation. Each of you may propose parenting plans, which include parenting time schedules. Depending on the process, the professional may make decisions for you when you can't agree.
You may only need a single session, or your negotiations may take months. Your lawyer may be allowed to attend.
Many types of ADR are confidential. This means that, while the ADR professional can tell the court whether you show up for sessions and if there's a reason to discontinue sessions, they cannot reveal what you discuss there.
When you have to do it
You can try ADR before you open a case. If the negotiations are successful, you'll avoid the litigation process and go straight to settling. Even if negotiations are only partially successful, it benefits you, as you'll bring a smaller disagreement to court.
Your judge will recommend or order ADR at your scheduling hearing (which your county may call the initial case management conference). This hearing is held in the weeks after you file your case. You'll then have months until your pretrial hearing, giving you time to schedule and complete ADR beforehand.
If you have proof that you already tried ADR, the judge might not require you to try it again.
It's common for the judge to write in your final order that you must try ADR before returning to court with any further disagreements.
What you should try to accomplish
Work toward a parenting plan that serves your child's best interests. If you focus instead on your own desires, on hurting the other parent or on possible bad outcomes, you may miss opportunities to co-create a parenting arrangement that helps your child thrive.
Who pays for ADR
You have to pay for ADR. Parents often split the cost evenly, but they can agree to a different division.
ADR processes are designed to be more affordable than going to trial.
Who performs ADR
In Minnesota, professionals called neutrals lead ADR sessions. They may take the role of mediator, parenting time expeditor, parenting consultant, etc.
Though neutrals usually have professional experience in law or psychology, they cannot provide legal advice or therapy. Instead, their goal is to help you resolve conflicts that would otherwise end up in court.
How to choose a neutral
Generally, you are free to hire whomever you and the other parent agree on. If you compromise on a parenting plan that serves your child's best interests, the judge is likely to approve it regardless of who helped you get there.
However, the court may provide a list of suggested neutrals, and it may invite you and the other parent to rank your preferences.
If you don't used a suggested neutral, choose from Minnesota's list of qualified neutrals. These people have completed a 40-hour training and must follow certain rules of ethics. If you opt to use someone who does not have the state qualification and your negotiations break down, the judge could make you start ADR all over again with a qualified neutral.
A neutral's Minnesota qualification does not mean they are employed by the state. A neutral who works for the state is probably your cheapest option, but availability varies.
If you go to an organization like a mediation center, it may have its own process for selecting who will work with you.
If you and the other parent can't agree on whom to hire, the court may choose for you. This keeps the process moving along.
Types of ADR
Your ADR method may be nonbinding or binding. Nonbinding means that parents do not have to reach an agreement or give any agreements reached to the court. Binding means you're assured of leaving with a decision. If you don't reach agreement, the neutral decides for you. The decision is turned in to the court.
Mediation is the most common form of ADR. The neutral mediator helps you and the other parent to have a conversation, negotiate and compromise.
It's normal to attend several sessions over several weeks. When you enter a mediation session, be prepared to ask for what you want. It's a good idea to have your lawyers present.
Should you reach an agreement, the custody decisions go into a parenting plan and any noncustody issues into a separate document. (Any document containing a mediated agreement might be referred to as a memorandum of understanding.) If at least one of you has a lawyer, the lawyer writes these up and submits them to court. If you're representing yourselves, you do it together.
Mediation is confidential, meaning what you say in the room cannot be used in court.
Collaborative law (nonbinding)
If you and the other parent know from an early stage that you want to work together to reach agreement, you may turn to collaborative law.
In this approach, you each have a specially trained lawyer, and you share a team of specialists who help you resolve your issues. Unlike traditional divorce and custody lawyers, collaborative lawyers don't gather evidence since both parents agree to avoid trial.
If you start the collaborative process after opening a case, you ask the court to pause your case while you negotiate.
After you reach agreement on all details (months later, typically), the collaborative lawyers file paperwork so the court can finalize your agreement.
Collaborative law, like mediation, is confidential.
Early neutral evaluation (nonbinding)
A couple months into your case, the judge may encourage an early neutral evaluation (ENE). Your lawyer can advise whether it's likely to be productive for you.
The neutral evaluates you and the other parent based on your court documents and what you tell them in a meeting. They tell you what a custody evaluation would likely recommend to a judge, and they attempt to mediate your disagreement.
Depending on your dispute, you could have a financial (FENE) or a social (SENE) evaluation.
- An FENE is performed by one neutral who asks questions about your assets and addresses child support.
- An SENE is usually performed by one man and one woman — especially when the parents are a man and a woman — to avoid gender bias. They listen to your parenting story and your custody concerns.
The session lasts only a few hours, and your lawyers can attend.
Minnesota's two most populous counties, Ramsey and Hennepin, encourage an ENE. The hourly fee for an SENE in Ramsey is the same rate you pay your lawyer, and the hourly fee for an SENE in Hennepin is half your lawyer's rate. If you do not have a lawyer, you pay as little as $25 per hour according to an income-based sliding scale.
Other areas — for example, counties in the Seventh Judicial District — are less likely to ask for an ENE, and you may have to hire privately. Choose from Minnesota's list of qualified ENE neutrals.
If you agree to an ENE, you must wait to file a motion for temporary custody until it's finished. The judge may also wait to order child support until the ENE is completed.
Since your ENE is confidential, the neutral cannot share much with the judge, except which issues were resolved during the session.
Parenting time expediting (binding)
Using a parenting time expeditor (PTE) can be an affordable approach to settling arguments about a court-ordered parenting schedule.
A PTE usually meets with parents once, often by a group phone call. They guide parents toward agreement, but if this is unsuccessful, they can make certain decisions for you, and a judge issues the decisions as a court order.
A PTE can interpret a court-ordered schedule and decide on makeup parenting time. If the judge only ordered "reasonable parenting time" and you're ready to make a schedule, the PTE can choose one for you. They cannot make decisions inconsistent with a court-ordered schedule.
As suggested by the name expeditor, they work quickly. You should have the session — and, if necessary, the PTE's decisions — within 10 days of the judge's request.
The PTE tells the court their decisions but must keep the rest of your information confidential. Your lawyer might not attend the session because they, too, are prohibited from sharing information learned there.
Parenting consulting (binding)
A parenting consultant (PC) can guide your initial negotiations or address topics left out of your parenting plan or custody order. They tend to work with parents over the long term and try to improve the co-parenting relationship.
The judge doesn't order a PC's involvement without your consent. You and the other parent choose together which issues to address with the PC and which issues (if any) the PC can decide when you reach a standstill. Their decisions are legally enforceable.
The PC may speak to your child's teachers, doctors, etc. to gain information the court doesn't have. They can also speak to your lawyer. Unlike a PTE, they don't have to keep your information confidential, and they can be subpoenaed to defend their decision in front of the judge, who is likely to accept what they say.
Preparing for ADR
If ADR goes well, you could walk out with a parenting plan that will last until your child becomes an adult. Are you ready?
Use all the tools at your disposal to get the best outcome for your child. In addition to a proposed parenting plan and possible parenting time schedules, you might also bring a tally of child-related expenses and more.
The Custody X Change app enables you to create all these items in one place. Custody X Change makes sure you're prepared not only for ADR, but for every step of your custody case.
Visualize your schedule. Get a written parenting plan. Calculate your parenting time.