Alternate Dispute Resolution

Alternate Dispute Resolution

Question: What methods of alternate dispute resolution are available in Hawaii

Answer: In Hawaii multiple methods of alternate dispute resolution are available, such as:

  • Mediation with a non-profit agency – on Oahu it would be Mediation Center Of The Pacific
  • Parenting Counseling with a mental health professional
  • Parenting Coordination (for post-divorce issues only), preferably with a mental health professional
  • Private mediation with a retired Family Court Judge
  • Collaborative Law

Question: What are the advantages of mediation with Mediation Center Of The Pacific

Answer: Mediation Center Of The Pacific is the most economical provider of mediation services because it charges for its services on a sliding scale based on income.  A male co-mediator and a female co-mediator are present at each mediation session to provide gender balance.  The co-mediators are community volunteers who receive 60 hours of specialized training in divorce.  Mediation sessions are held on weekdays, including during weekday evenings. Mediation is confidential which means that what is discussed cannot be brought up in court and the co-mediators cannot be subpoenaed to testify in court.

Question: What are the advantages of Parenting Counseling with a mental health professional

Answer: Parenting Counseling with a mental health professional offers the highest level of professional (mental health professional) for the lowest cost (cost of an insurance co-payment if HMSA private health insurance is used) to do the job at hand.  The purposes of Parenting Counseling are to rebuild trust and communication between the parents, while at the same time to create timesharing (custody and visitation) plans and decision making (legal custody) protocols.  Parenting Counseling is confidential, which means what is discussed cannot be brought up in Court and the Parenting Counselor cannot be subpoenaed to testify in Court.

Question: What is Parenting Coordination, why is it preferable that the Parenting Coordinator be a mental health professional, and what are some advantages of Parenting Coordination

Answer: Parenting Coordination is to fine tune and implement Court orders (e.g., divorce decrees) so that after the divorce is granted parents do not have to return to Court when they have trouble implementing Court orders or when they want to fine-tune/make minor changes to Court orders.  Examples of post-divorce situations that may benefit from Parenting Coordination are when one parent is not complying with the Court order or when one parent is requesting minor changes to the Court order and the other parent is not cooperating.  Parenting Coordination is not to make new orders.  For example, Parenting Coordination is not to make new orders because of changes in circumstances post-divorce, such as when a child gets older and is in a different developmental stage (e.g., teenager) and one parent wants the timesharing to change from joint physical custody to primary physical custody. 

It is preferable that the Parenting Coordinator be a mental health professional since often the post-divorce issues are the result of:  differences in parents’ personalities; differences in parenting styles; and/or, impasses in parental communication.  A mental health professional is trained to most effectively deal with these differences instead of ignoring them or making them worse. 

Some advantages of Parenting Coordinators are as follows: 

Parenting Coordinators stay with the family for a few years.  They get to know each parent over time, and they make recommendations about disputed issues that promote reciprocity between the parents.  For example, the first time an issue arises one parent will be accommodated, and the next time an issue arises the other parent will be accommodated. This assumes that neither accommodation critically affects either parent or the child(ren). 

When the Parenting Coordinator is first agreed upon by the parents and/or appointed by the Court, it is assumed that the parents cannot communicate effectively with each other and that they need a neutral to serve as the go-between.  Nevertheless, the goal of Parenting Coordination is to get the parents to eventually learn to communicate with each other so that they do not always need a third party professional in their lives for as long as their children are minors. 

Each parent pays 50% of the Parenting Coordinator’s retainer fee, which is much cheaper than each parent paying 100% of his/her own attorney’s retainer fee to negotiate and possibly go to Court.  Ideally, both parents will accept the Parenting Coordinator’s recommendation and neither parent will file a motion to challenge it in Court.  Because the Court cannot abdicate (give up) its role of making decisions, the parents always retain the right to file a motion to challenge the Parenting Coordinator’s recommendation in Court.  Parenting Coordination is not confidential, which means everything that is discussed can be brought up in Court and the Parenting Coordinator can be subpoenaed to testify in Court.

Question: What are the advantages of private mediation with a retired Family Court Judge

Answer: Private mediation with a retired Family Court Judge has the advantages of judicial knowledge of how a case would end up if it went to Court and judicial experience of how to settle cases so he/she do not end up in trial.  A retired Judge private mediator has the aura of a Judge and sometimes a stubborn spouse needs to hear a neutral who believes knows the law and what will happen in Court before he/she will participate in a productive way.  Private mediation gives spouses time to tell their stories and vent their emotions.  One of the main benefits of mediation in general is that when spouses get their emotions off their chests and feel heard while doing so, then they can begin to focus on constructive solutions instead of being guided by their emotions.  In private mediation, the possible solutions are not constrained by what the law says, and “out of the box” solutions can be viable options for settlement. 

Private mediation with a retired Family Court Judge is like a series of fast track, informal settlement conferences with a Judge.  Individual mediation sessions with the retired Judge mediator can be scheduled within a matter of weeks (as compared to the months that it takes to get into Court).  While it is beneficial to provide supporting documentation and reasoning for a spouse’s position/request, it is not necessary to do so.  Agreements can be put in writing as they are made until finally the entire case is settled.

Question: What is Collaborative Law and what are some of its advantages

Answer: Collaborative Law is a lawyer negotiation process that relies on the spouses agreeing at the start of the case that they will not engage in contested litigation and that they will voluntarily share information with each other to ensure a level playing field.  Each family member’s needs are addressed and met, based on the premise that until a spouse knows and meets the other spouse’s needs there can be no settlement of the case. The goal of collaborative law is to preserve post-divorce relationships so that hopefully parents can sit together at future significant events in their child(ren)’s lives, such as: high school graduation; college graduation; wedding; grandchild’s first birthday party, etc.. A successful collaborative law case can be analogized to a successful river raft expedition in which the river raft goes down the white water rapids without crashing into boulders and without anyone falling off the raft.  The Collaborative Law attorney, like the river raft guide, guides the spouses through the conclusion of the case with the goal of minimizing stress, drama, and injury.  Because Collaborative Law does not involve any Court proceedings, the spouses do not have to waste substantial attorney’s fees and costs related to Court. 

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