Page 22 - Family Law Services

native dispute resolution (ADR). The CPA may serve in a neutral capacity or represent one side when
offering these forms of ADR.

Arbitration

Arbitration involves a less formal tribunal than formal litigation. During arbitration, the CPA may act in
the capacity of an arbitrator by examining the testimony, exhibits, and arguments that are presented and
subsequently making a decision. The CPA may also act as an expert or consultant to either party. Alt-
hough arbitration can be binding or nonbinding, most arbitration is binding. Under binding arbitration, a
decision is final and precludes further litigation. Nonbinding arbitration allows the parties to seek fur-
ther recourse through an appellate decision. Binding arbitration may be preferable in marital disputes for
parties who wish to preserve the privacy of their affairs for any reason. For example, a case may include
issues such as underreported income, the public disclosure of which would harm the litigants.

Arbitration is similar to a courtroom proceeding in that direct evidence is presented, motions can be
made, and witnesses are cross-examined. The finder of fact is often an attorney rather than a judge.

Settlement Facilitation

Settlement facilitation is typically an unstructured nonbinding meeting with the parties, their lawyers,
and a facilitator. It is not unusual for CPAs, attorneys, psychologists, or psychiatrists to serve as settle-
ment facilitators by using their powers of persuasion to assist the couple in resolving their dispute. Facil-
itations may be court-ordered or may be agreed to by the parties. The CPA may serve as the facilitator or
represent either of the parties in these proceedings.

Mediation

Mediation is one of the least formal procedures for dispute resolution. However, a number of states now
require mediation prior to trial. A CPA, attorney, psychologist, psychiatrist, or any other qualified indi-
vidual may be engaged to act as a mediator and assist the parties by exploring the options available for
resolving differences and finding mutually agreeable solutions. Unlike some other forms of ADR, the
mediator cannot bind the parties (that is, the mediator has no decision-making power). Some states offer
formal mediation training for attorneys and nonattorneys alike. Check with your state bar association or
continuing legal education organization.

Parties typically do not have their attorneys attend the mediation sessions; although, in certain instances,
both parties’ attorneys are present. Nevertheless, caution should be exercised if clients use a mediator to
seek a divorce without each having an attorney represent them. The CPA performing services as a medi-
ator must also take precautions to remain in the mediator role and not inadvertently overstep the appro-
priate boundaries to provide what may be construed as legal advice. It may appear to be a conflict of in-
terest if a CPA acts as a mediator when engaged by one of the parties to perform other services.

Often, after an initial group session discussing the opposing positions, the mediator may decide that the
most effective way to assist the parties with the resolution of their differences is to speak to them sepa-
rately, with their attorneys, or with one side or the other. This separation from the group is called cau-
cusing.

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