By: Jessica A. Bryant
At some point in nearly every Colorado family law case, the court will enter an order requiring the parties to attend some sort of Alternative Dispute Resolution (ADR) session. The most commonly ordered and used type is mediation, which has been discussed in a prior blog post. There are several other types of Alternative Dispute Resolution that may be appropriate for your family law matter, such as arbitration, settlement conferences, or Early Neutral Assessment (ENA). This post is focuses on Early Neutral Assessment and the benefits and drawbacks of using such. However, before deciding what process to pursue for your case, it is always best to consult with your attorney to decide, together, what is course of action will be best for you.
Early Neutral Assessment, or ENA for short, has a similar goal as mediation, which is to give parties in a divorce or custody case a place to discuss settlement options, in the hope of resolving the case by agreement and avoiding the time and expense of a court hearing. ENA, however, is focused only on child custody related issues. Therefore, if you have a divorce case without children, a child support modification proceeding, or a divorce or custody case where the issue of decision making responsibility and parenting time are not highly disputed, ENA may not be the best option for you. Every ENA session consists of the parties, their attorneys, an independent lawyer, and a mental health professional. The team is set up so that if the lawyer is a male, the mental health professional is a female, and vice versa, to avoid any concerns about gender bias.
The general course of an ENA session is as follows:
- The parties may initially meet in front of the Judge/Magistrate to be given an overview of ENA
- The parties and ENA professionals will then go to a room to begin the ENA session.
- The party who filed the case will be given time to express his or her thoughts/opinions/concerns regarding all outstanding child-related issues.
- The second party will then be given time to express this or her thoughts/opinions/concerns regarding all outstanding child-related issues.
- Each party will then be given a chance to address the other party’s concerns/opinions.
- The parties will then be given a chance to meet separately with their attorneys and, during that time, the independent lawyer and mental health professional will discuss the issues.
- The ENA professionals will provide the parties with their thoughts and opinions.
- The parties will then discuss potential settlement ideas, considering the thoughts of the ENA professionals as relate to the children.
- If any agreements are reached, the parties may have the opportunity to return to the courtroom to enter the agreements directly on the record and to make them binding.
The main benefit of an ENA session is that parties are given the insights of a mental health professional regarding what allocation of decision making responsibilities and/or a parenting time schedule may be in their children’s best interests, considering the unique aspects of the case, without having to pay the costs for a Child and Family Investigator and/or a Parental Responsibilities Evaluator. Obviously the opinions of the mental health professional are more limited in scope and effect than those a CFI or PRE. Nonetheless, those opinions may be insightful to the parties in terms of how a court or paid investigatory expert might view the case. A CFI or PRE may cost the parties significantly more money than going through ENA and there is certainly less formality than obtaining expert opinions in a litigation setting. One should keep in mind that, just like mediation, ENA is confidential and the statements made in the sessions or the opinions of the professionals taking part will never be heard by the court. Thus, a free flowing dialogue can ensue.
The main limitation of an ENA session is that it is generally going to be more expensive than a mediation session. Since financial issues are not addressed in ENA, the parties may still have to pay for and attend a separate mediation session to discuss any disputes related to property/debt division, spousal support/maintenance, child support, attorney’s fees, or any financial issues which can arise in a custody or divorce case. It is also very important to remember, in any alternative dispute resolution process, that agreements do not have to be reached and a person should not feel pressured to agree simply based on the opinions being expressed by the ENA professionals. Another drawback, just as with mediation, is that if agreements are not reached the parties may have expended funds for nothing.
When considering ENA with your attorney, it is of particular importance to gauge whether the other party is coming at things from a settlement oriented standpoint. If not, there is no point in just going through the motions. Not all cases are postured for settlement. Having an attorney present in any alternative dispute resolutions session can be extremely beneficial because it ensures you have an individual on your side advising you of your rights and making sure you do not agree to something without understanding all implications of such agreement.
If you have questions about your case and how our Denver divorce attorneys can help address the unique issues you face, contact Plog & Stein, P.C. today. We offer free phone consultations and serve clients throughout all Denver metro counties and the surrounding areas of Colorado!