10 QUESTIONS ON ADR
5. What should we put down in writing?
Everything you care about.
Some matters are already in writing: the court rules and statutes. Know those rules and laws because you will be bound by them. Meet their requirements by preparing and executing a referral order for entry by the court, as well as any other related documents. Other matters may be included in the referral order or an agreement between the parties or confirming letter of understanding between counsel. Forms are available through other articles, Family Law Section seminar materials and the ICLE Partnership Form Bank.
If you are relying on something happening or not happening as part of the ADR process, you should put it in writing. Where it needs to be depends on its relative importance, but document anything you might need to enforce. If it might reasonably influence the outcome, document it. If you rely on oral understandings, you might face a problem of selective recall or legitimate differences in interpretation with no recourse to the court or the mediator or arbitrator.
One way to avoid misunderstandings is to have a pre-hearing telephone conference with the person conducting the ADR proceedings. At this conference, create an agenda covering: (a) a brief overview of the facts and key issues; (b) the ADR process you envision (e.g., joint/separate sessions, opening statements/presentations, time limits, third-party participation); (c) potential obstacles (e.g., discovery, motions); (d) participants; (e) logistics (e.g., date, time, place, length, rooms); (f) pre-hearing statements (e.g., deadline, length, content, attachments, “ex parte” supplements); (g) fees; and (h) other matters affecting the process or participants.
Of course, after this conference, someone should prepare a confirming letter.