Settlement Facilitation in New Mexico Divorce Cases: Not Only Productive but Generally Required!

Given that divorce and child custody disputes can often be contentious, costly and time consuming for both the parties and the courts, many of the New Mexico judicial districts routinely refer parties to mediation or settlement facilitation.

The purpose of both mediation and settlement facilitation is to provide a means by which parties to a family law case can reach an agreement without having to engage in a lengthy, stressful and costly court battle. The terms meditation and settlement facilitation are often used interchangeably to simply refer to a process wherein the parties sit down with a neutral third party and attempt to resolve their conflict. Although the two terms refer to similar processes, the term settlement facilitation technically applies after a lawsuit has been filed whereas as meditation can occur before, during or after a suit has been filed.

Either way, participating in some sort of dispute resolution process can be very beneficial to both parties. As a preliminary matter, an effective settlement facilitation can save the parties a lot of money in attorney‘s fees and their own time. Each issue that is settled by the parties without their attorney‘s having to file motions and attend hearings to argue the disputed issue can save hundreds, or even thousands of dollars.

Further, a settlement facilitation can often be held, and a settlement reached, much more quickly than court action because the facilitation can be scheduled at the convenience of the parties, rather than the Court whose docket is often crowded. In very busy judicial districts, parties can wait months to have a hearing before a judge when a facilitation can be scheduled as soon as all of the parties, their attorneys and the facilitator are available.

The effectiveness of a settlement facilitation depends heavily on how willing the parties are to negotiate. Parties need to realize the cost of full litigation when they are evaluating whether or not they want to wait for a judge to decide an issue or try to resolve it through settlement.

The selection of a facilitator is important. Using an experienced settlement facilitator is critical to the success of a facilitation. The facilitator needs to be good at listening to both parties and addressing their concerns, but also needs to be well-versed in the applicable law so that they can accurately inform the parties of the pros and cons of their relative legal positions and the value of reaching an agreement without further court action

It is essential to remember that the settlement facilitator is an impartial party and cannot provide specific legal advice to the parties. Thus, even in settlement it is important for parties to have their own experienced family law attorney who can represent their specific interest and make sure they are making educated legal decisions.

When both of the parties, their attorneys and the settlement facilitator work together and are committed to resolving the parties‘ outstanding issues, it can result in an agreement that the parties can live with, that limits the time and financial resources expended by the parties and that allows the parties to move on with their lives.

Finally, at least in Albuquerque‘s Second Judicial District Court, settlement facilitation is generally required with few exceptions prior to a trial setting. This the Court‘s way of encouraging the parties to work cooperatively toward a resolution while keeping court dockets down. And to end on an encouraging note, even those parties that must be forced against their will to settlement facilitation will often find some grounds for agreement which will at least minimize the issues to be decided at trial. This alone is worth the price of admission.

Collins & Collins, P.C.
Albuquerque Attorneys

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