ADR and family law 'a match made in heaven'
By AdvocateDaily.com Staff
“ADR and family disputes are really a match made in heaven,” says Huberman, the editor of A Practitioner’s Guide to Commercial Arbitration.
“I’m a huge proponent of ADR. I think that properly used, it’s a tool that offers flexibility and adaptability to parties, and a mindset that fosters creative solutions,” he adds.
However, to get the most out of their options, Huberman says parties must think carefully about the definition of ADR, its goals, its potential, and its disadvantages, before proceeding with the option that suits them.
“It’s a term that encompasses a wide range of techniques that may be used to resolve legal disputes without proceeding with more adversarial and adjudicatory processes, like litigation, hearings and appeals,” he says. “With respect to family conflicts, I would say ADR is something that must be considered, at least initially, in all cases because of its goals, which are to reduce the court caseload, as well as the amount of time and money the parties spend on its resolution.”
He says ADR options have “tremendous potential” to improve outcomes for parties involved in a family law case.
“If done efficiently, it can save time and reduce stress, and strengthen relationships compared with litigation,” Huberman says. “It provides more flexible processes and party-sensitive solutions than traditional binary outcomes, where one side wins and the other loses.
“By tailoring a resolution to the parties’ needs, ADR provides the structure for win-win solutions,” he adds.
Still, any assessment of ADR options requires a holistic view, including the potential downsides, according to Huberman.
In mediation, he says some critics are concerned it can actually delay resolution of the matter and increase costs by adding an extra layer to an already emotionally fraught situation.
“It takes two to tango, and if one side is strident or not interested at all in resolving the issues, then mediation is not necessarily the right thing to do,” he says.
Arbitration can sometimes prove just as costly, or even more expensive than traditional litigation in court.
“It depends on how it is used, and in what context,” Huberman explains.
In addition, he says certain cases, such as those involving family violence or power imbalances, are generally unsuitable for some forms of ADR.
“Despite the advantages of ADR, it’s not for every kind of case,” Huberman says.
The key to success lies in its effective use, he adds.
“You need to tailor the process and explore creative approaches to the dispute, to maximize the chances of an innovative and mutually beneficial resolution,” Huberman says.
For that to happen, all parties must buy into the process.
“If all the stakeholders, including the parties, their representatives and the ADR professional, properly use the tools before them, that will maximize the chances of effectively settling the dispute at hand,” he says.