“Who does court trials anymore?”

By Anthony C. Adamopoulos (© 2015)

So the city-attorney and the country-attorney were talking when the country-attorney raised concerns about her upcoming divorce trial:

Country-attorney: – I hope we get the scheduled judge, I hope it goes off as scheduled, etc., etc.
City-attorney: -Who does court trials anymore?
Country-attorney: What do you mean? What do you do?
City-attorney: It is all arbitration now.
Country-attorney: – Why?
City-attorney: – It is all about control? The other side and I may disagree on many issues but we agree that we want to have the control over who decides the issues, when and where the hearing will be and when the decision will be made.

 Here is a lay person’s explanation as to why arbitration may well give the parties, and their attorneys, more control of resolution of their divorce issues.

Divorce Resolution by court trial.

Understanding certain characteristics of a court trial is important. (The following is based on the Massachusetts divorce court trial process. There are exceptions, but generally, the following will apply.)

The trial judge.

The trial judge is randomly assigned to a case when it is filed (probably about a year or two before any trial is scheduled). However, the judge scheduled to hear a trial may not do so for a variety of reasons including: illness, presiding over another trial, retirement or transfer.

The judge assigned to a case may have no judicial experience with the primary issue in the trial. For example, a corporate valuation issue or what is in the best of interest of a severely handicapped child.

The trial date.

A trial date is the expected date that the trial will start; and perhaps finish. Whether it will start is dependent on several factors. For example, “over booking”; this occurs because many cases scheduled for trial settle just prior to the trial. But, if all “assigned for trial” parties actually come to court for a trial then some cases will not begin.

A public trial.

The trial will be open to the public, including the press.

The Rules of Evidence.

Everything that is offered to the judge for consideration is offered under a set of rules called the Rules of Evidence. The Rules regulate how and what the judge sees and hears. For example, the Rules keep out of consideration photocopies instead of originals and affidavits instead of in person testimony. The Rules of Evidence result in costs that do not have to be incurred in arbitration.

The right to appeal.

After every divorce trial, either party has the right to appeal the trial judge’s decision. An appealing party may not win an appeal but the right to try is a part of every trial.

Divorce Resolution by arbitration.

The arbitrator.

The parties hand pick their arbitrator (or a panel of three or more arbitrators) based on ability, expertise and availability. For example, the parties may select an arbitrator with experience in corporate valuation or the needs of a severely handicapped child.

The hearing date.

The parties select the hearing date.

Confidential hearing.

The arbitration hearing is private and confidential.

Everything offered may be considered.

Generally, any party may offer for consideration evidence in any form.

Appeal.

With very specific exceptions to protect the integrity of the arbitration process, an arbitration decision (called an award) is final and binding.

Why have a court trial when arbitration…

provides privacy, expertise, efficiency and finality – sooner rather than later.

HOW TO USE DEADLOCK ARBITRATION

PART TWO

STALEMATE - RAM HEADS

For PART ONE – WHY CONFIDENTIAL DEADLOCK ARBITRATIONsm

Making the decision to arbitrate:

  • Deadlock Arbitrationsm can be used to resolve deadlock arising out of the Collaborative or Mediation process.
  • After deadlock, attorneys discuss arbitration with their clients. Pro se litigants discuss arbitration between themselves.
  • If all agree, an Arbitration Agreement is executed.

The basic arbitration agreement provides for:

  • Confidential and private proceedings;
  • Discretion;
  • Issue selection and limitation;
  • Binding awards (there may be a high/low agreement);
  • Any other provision agreed upon;
  • The admission of all evidence which is then given the weight determined appropriate by the arbitrator; and
  • The time and location for the arbitration hearing.

Benefits of arbitration:

  • Provides privacy – for example, hearings are not open to the public.
  • Provides confidentiality – for example, testimony and documentary evidence are not available to the public.
  • Avoids unnecessary costs – for example, affidavits may be used instead of in person expert testimony.
  • Avoids unnecessary delays – for example, there are no unexpected court like delays.

Points to consider:

  • Speed – hearings can be scheduled within days and decisions awarded within weeks.
  • Single issue determination – arbitration can be used to resolve only one issue, e.g., the final “sticking point”.
  • Arbitration awards are generally not subject to appeal.

 

WHY CONFIDENTIAL DEADLOCK ARBITRATION?

PART ONE

CAT & DOG - STALEMATE

 

What is Deadlock Arbitration?

Deadlock Arbitrationsm   is a private confidential process that avoids the need to “change over” to public court litigation when divorce mediation or Collaborative Divorce reaches a total breakdown.

What causes deadlock?

Deadlock results from a party refusing to move from a position. For example, consider this scenario:

After negotiating for a period, all issues have been resolved, except for one – the wife’s recent inheritance from her father’s estate.

The wife says, it is hers. The husband says, he wants his share.

Neither party will compromise. They are deadlocked!

A lot of pain and effort went into getting agreement on everything but this one issue.

Think about it! Only one issue prevents a resolution.

Do the parties now have to leave Mediation or the Collaborative Process and go into court litigation?

N0.

How does Deadlock Arbitrationsm work?

In Deadlock Arbitrationsm, the parties “hand pick” an arbitrator to decide the one issue.

“Their” arbitrator travels to a location selected by the parties. There, in a confidential format, totally designed by the parties (with the help of their respective attorneys or their mediator), the arbitrator listens to the presentation of each side.

The arbitrator, within an agreed upon period, makes a decision on the deadlocked issue and the parties move on.

See Part Two  for:  HOW TO USE DEADLOCK ARBITRATIONsm

 

Why Collaborative Divorce? – Answered In One Picture.

 

February is Divorce Month in Massachusetts because there are so many divorces filed that month. So, it is safe to assume that people are right now considering what process to use, that is – Adversarial, Mediation or Collaborative. Elsewhere in DivorcingOptions.com you can read about these three processes in detail.

But, sometimes a picture says it all…

Divorce Approaches Diagram

View PDF version

If your considering divorce, now is the time to talk with someone who knows what he is talking about. And, he is talking about calling a truce to the war and getting a peace settlement. Call Anthony.

 

You may reprint or distribute this chart on your website so long as the copyright and contact information for Anthony C. Adamopoulos’ Divorce Resolution Services remains attached to the bottom of the image.

Copyright ©, 2014 Anthony C. Adamopoulos’ Divorce Resolution Services, DivorcingOptions.com. All rights reserved.