ALTERNATIVE DISPUTE RESOLUTION

What You Need to Know about ADR, Mediation and Arbitration in Mississippi

The decision has been made. You are navigating the rough waters of a Mississippi divorce or other conflict in your family. The thought of darkening the terrifyingly unpredictable doors of a courtroom has you a little freaked out. Maybe someone is itching for a fight, but you lack the time, money, or nerve to put yourself or your children through a hotly contested trial.

The good news is that you are unlikely to ever see the parking lot of the courthouse, let alone the inside of a courtroom. Research and experience shows approximately 95% of divorce actions settle out of Court. How, you may ask? Through Alternative Dispute Resolution, otherwise known as ADR.

There is a cool story in Buddhist teachings about Buddha having tea with Mara. On the eve of the Buddha’s enlightenment, Mara, who is lord of death and symbolizes evil in the world, attempted to challenge him while Buddha was meditating under a tree. Buddha simply sat with his legs crossed as Mara sent his beautiful daughters to seduce him, demons to attack, and as he offered worldly riches to distract him from his path. Unflinchingly, the Buddha remained in deep meditation. Every time Mara would present a challenge, it would dissolve into flower petals. By daybreak, there were mounds of jasmine blossoms by the Buddha’s feet.

Mara did not relent. The dragon-resembling demon would appear at different times in the Buddha’s life. Once when he was teaching, Mara sulked along the edges of the students, plotting to strike. Buddha’s trusted companion was panicked and attempted to alert the teacher about the demon’s presence. The Buddha very calmly addressed Mara.

I see you, Mara. Come, let’s have tea.

This is a metaphor for how we can confront our life challenges. Divorce and family law situations are no different. ADR are the mechanism for resolving a legal action outside of a courtroom, like inviting a dragon to tea.

Abraham Lincoln said we should discourage litigation and persuade our neighbors to compromise whenever we can. Point out how the nominal winner is often the real loser — in fees, and expenses, and waste of time.  He went on to say “As a peace-maker the lawyer has a superior opportunity of being a good man. There will still be business enough.”

For the purposes of a Mississippi divorce, or any other family law crisis, this is typically achieved in one of the following four ways:

The DIY Divorce

You cannot turn on a television these days without being subjected to a “Do it Yourself” (DIY) show. Often times, the morbid draw of these programs is watching people, who have bitten off more than they can chew, struggle through completing a task they were ill-equipped to take on in the first place. Moral of the story? Don’t do it!

It is legal for you to accomplish a divorce in Mississippi without an attorney. However, just because something is legal doesn’t make it a good idea. Regardless of the circumstances, a Mississippi divorce is a complex legal proceeding, which can have catastrophic effects if left in untrained hands. Get help! Hire a professional.

Informal Settlement Negotiation

One or both sides have lawyered up. Your facts fleshed out and financial accounts and debts identified. Whether you’re tired of holding your sword, or you’ve yet to even reach for it, it is time to settle and move on. Typically the first attempts at settlement are through informal settlement negotiations.

Informal settlement negotiations are a form of ADR where you negotiate with the opposition from a distance. One side makes an offer of settlement to the other, typically via email or telephone. The offer is often considered, and ultimately accepted, rejected, or countered. Each side then continues to volley offers back and forth until either a deal or an impasse is reached. This process usually takes place over the course of days, or even weeks. While the drawn out timing of this method often becomes frustrating, informal settlement negotiations can be effective at narrowing the issues and keeping costs low. In the event a deal is reached, you will either sign the documents independently or a meeting will be scheduled where you and your spouse will execute the contract at the same time.

Settlement Conferences

You’ve tried batting offers at one another for weeks, and the gap between your positions doesn’t seem to be shrinking. Maybe the attorney on the other side seems to never be available or your spouse keeps moving the ball. Regardless of the reason, it is time to get everyone in the same building.

A settlement conference is a method of ADR where you and your attorney set a formal conference with your spouse and their attorney to hammer out a deal. This meeting of the minds typically takes place at the office of one of the attorneys. You and your spouse will each set up shop in separate conference rooms, and your attorneys will go back and forth trading offers and negotiating terms. The goal is for everyone to keep plugging away until a deal is reached and signed. Settlement conferences typically take all day, and sometimes push into the late hours of the night. It will be exhausting, but walking away with a signed and sealed deal is usually well worth it.

Mediation

You like the idea of a settlement conference, but you’re convinced there is no way a deal can be reached without an extra push. Maybe your spouse is just too stubborn, or their lawyer too difficult. Perhaps there are so many issues to be agreed upon that the respective sides alone cannot get it done. Regardless of the reason, your case has become a runaway train barreling towards a courtroom. Mediation may be the emergency brake you need to avoid disaster.

In the world of Mississippi divorce, mediation is the most formal avenue of ADR. Like a settlement conference on steroids, you and your attorney will come together with the opposition to reach a deal, only with the added assistance of a mediator. A mediator is a neutral third party who has been employed by you and your spouse to aide in bridging the gap between your positions. Mediators, who are often retired judges or attorneys with extensive family law experience, are not there to choose sides or assign blame. In fact, they have no real power at all. The mediator exists solely to help you facilitate a deal.

After opening remarks by the mediator, where you’ll be informed of the procedure to follow, you and your spouse will adjourn to separate rooms with your respective attorneys. From there, you will spend the day trading offers with the opposition with the assistance of the mediator and your attorney. He will tactfully make suggestions and inform you of his vast knowledge of the pertinent law in Mississippi as it relates to your case. Typically, everyone makes a commitment to stay the course until either a deal is signed or the mediator declares the parties have reached an impasse. While mediation can be expensive and intensely draining, it often provides you with the best chance at resolving your domestic dispute outside of a courtroom. In fact, over 80% of cases that go to mediation settle.

Arbitration

Arbitration is essentially where the parties employ their own judge who will make the decision after a mediation or through an informal trial.  While this is not very common in Mississippi, it may be an option if there are significant financial considerations and/or it may take a long time to actually get to court.

Reaching a Deal

While all Mississippi divorces are unique in some way or another, one almost universal truth is making a good faith attempt to settle your case outside of a courtroom is worth your time and money. Any honest lawyer or judge will tell you so. Nobody knows what is best for you and your family better than you do. Chances are, one or more of the ADR vehicles explained above will pave the way to the negotiated settlement that is best for your family. However, in the unlikely event all of these methods fail, you will be able to confidently walk into court with your head held high and armed with the knowledge you tried every alternative to resolve your case amicably.

Ways We Can Help You

Here is the way this works, if you would like to talk about how ADR can be used in your family dispute, call our office (601-898-8655) or confidentially submit a basic intake form so our staff can complete a standard conflict check. That’s when we make sure nothing on this end will stand in the way of us being helpful. Then, we will schedule a time for you to talk to one or more of our attorneys to go over your situation.

FAQs

What is mediation?

Mediation is an event whereby a third party, often a retired Judge, serves as a settlement facilitator.  Mediation empowers the parties to the dispute to reach a resolution to their disagreement without going to court.

How much does mediation cost?

Mediation can be expensive, because in addition to your attorney, you are also paying for some or all of the time of a third professional to work with you to reach a compromise.  While a mediation session can cost between $3,000.00 and $7,500.00, in the long run, mediation can actually save time, money and energy.

What is Arbitration?

Arbitration is like a private trial.  Unlike mediation, in arbitration, the parties empower the arbitrator to make a binding decision.

How common is Arbitration in Mississippi family law?

Arbitration is not very common in Mississippi family law.  Sometimes, when high level attorneys are involved and access to the Court is difficult or undesirable, an arbitrator is used to help create a resolution, which will be binding upon the parties.

Can I get a divorce without a lawyer?

A person can serve as their own attorney, but it is typically a bad idea.  Cases that touch your family are the most important transitional exercise in your life, and having experienced help is imperative.

Do any of the attorneys in your office serve as a mediator?

Yes. Our founding partner, Craig Robertson, is a trained mediator.  He has provided mediation services for litigants around Mississippi. Have your attorney reach out to our office to inquire about availability.

Resources related to ADR

I just wanted to thank you for all of your hard work in helping to finalize the child support settlement. You did an excellent job, and I would highly recommend you to anyone seeking expert legal advice.

I just wanted to E-mail you and tell you how much I appreciate everything that you have done for me throughout my divorce. You have been so wonderful!! I couldn't have asked for a better person to help me through all of this. Through my entire divorce it has seemed like you understand exactly what I have been going through and that has been so helpful... The very first day that I called you, you made me feel so comfortable! You were so easy to talk to and I felt like I could really relate with you. I just want you to know how much your help and support have meant to me. I can't say thank you enough... Good luck with everything and thanks again for all that you have done! You are GREAT!!!

reflecting is a good way to clear your mind. i find myself doing that just about every day. for some reason, i started thinking about last summer the other day. i looked at where i am now; peaceful, calm, sane(well mostly), and...happy. truly happy. then i thought about last year<<{CHAOSDRAMAMADNESS}>> i remember my heart stopping every time the phone rang, and the dread i felt wondering what would unfold next. every day was a whirlwind of emotional overload. several people became a haven to me, but only one guided me through that storm... you. there is no doubt in my mind that God sent me to you because He knew you would take care of me. and you can say you were only doing your job, but you saw me through the greatest crisis of my life to date. there are no words to express my gratitude to you. through this process, i am learning a lot about myself and who i really am-without someone else's definition attached to me. i can be by myself and really be okay. i believe that God has set this time aside for just me and Him. that was kinda hard to accept, but i have and it really makes my life easier. i think i am better for having gone through this whole thing. i just wanted to say thank you for going through it with me.....

Thank you so much for your help. You are a blessing to me. I meant to email you to let you know that I made it back safely but I have been trying to work on these other tests to become certified in Microsoft. I did receive the documents from Lori today. Also I wanted you to see the little girl that you were fighting for, I just hope and pray that one day B. understands that it is never about us, it is all for Z.

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