IF YOU KNOW SOMEONE FACING DIVORCE…this may help when they come to you for help. By Anthony C. Adamopoulos, arbitrator, mediator, collaborative attorney

Because people often wait until “after the holidays” to make the Decision to Divorce, February is Divorce Month. Since it is such an important Decision, I have put together this post on important considerations.

If someone facing divorce comes to you, I hope this article will help.

First StepThink about how divorce will affect your children. 

Think about what is in the best interest of your children.child-support-visitationOften unknown, or unappreciated, the Decision has an indelible and devastating effect on young children. Children often see divorce as the death of the child’s family, at least as the child has known the family. This “death” can result in outcomes including Post Traumatic Stress Disorder, pain and depression. In the lives of young children, no decision of their parents can have a more negative effect than the decision to divorce.

Second Step – Talk alone with your spouse about the Decision. “But, we can’t talk! That’s why we’re divorcing!” Well listen, if your child was in the emergency room and you and your spouse had to talk to make a decision, would you talk and make the decision? If your answer is “Of course”, well, in your child’s life, this is just as important. Talk! Talk about: -Is divorce the only choice? -Is divorce the only answer? -Is divorce necessary now? If you cannot talk, then talk with a professional. Yes, it is that important in the lives of your children. Also, if the first professional “just isn’t right,” try another, and another, until you are both comfortable with the professional. If you have done all you can to keep the family “alive” and still divorce is necessary, then do it the right way.

Third Step– Pick the best divorce Process first, and then pick your divorce attorney.BestAll too often, people go to an attorney first. This is not the best approach. Attorneys are best at “what they do”. For example, consider this medical scenario, if you go to a surgical oncologist for advice on how to handle a newly discovered tumor, you will most likely get advice on the best surgery. If you go to a medical oncologist, you will get advice on chemotherapy. The radiology oncologist will give you advice on cancer radiation. It is the same in divorce, e.g. there are litigators, there are mediators, etc. Study and select the Process; then pick the attorney who works well in that Process.

There are two overall divorce processes – the Court Process and the Alternative Dispute Resolution (ADR) Process.

The Court Divorce Process

The Court Process assumes a confrontational route. (See: The Adversarial Approach for a different assumption).  The confrontation begins when you or your spouse declare, in a public document called a Complaint for Divorce, that you are suing for divorce and you want custody of the children (if any) and an equitable division of all property.
In the Complaint for Divorce, the plaintiff is the accuser and the defendant is the accused or defender. (In the Court Process, all proceedings and most documents are open to and available to the public for viewing and copying.)
In Massachusetts, there are rules that set out the procedure for using the Court Process. One of the rules is called: Standing Order 1-06 – the Time Standards.
When considering what Process is best for you, it is important to understand the effect of the Time Standards on your budget.  The Standards establish a list of events that must be attended to. Failure to attend to an event may result in sanctions. I say “attend to” because although Standing Order 1-06 orders certain acts, for example, the completion, filing, and serving of a Financial Statement within a certain period, experienced divorce attorneys know there are other rules that permit parties to skip, delay or get around a Time Standards rule.  Sound confusing? For experienced attorneys, it is not; for persons who represent themselves, it may be quite confusing.
For those considering cost, the Court Process, by its nature, will require you to pay your attorney for “attending to” a required “Time Standard” event. Given the number of “events” in Standing Order 1-06, this can be costly.
Under the Court Process, if you and your spouse cannot resolve your differences, you will have a court trial. Learn what a court trial entails by clicking and reading my article: Who does court trials anymore?

The ADR Divorce Process

In divorce, there are four alternative approaches to divorce resolution – non-confrontational adversarial, Collaborative divorce, mediation and arbitration. Regardless of the approach you use, the only time you will be in the court system is when you appear for a five minute uncontested divorce hearing. There is no Divorce Complaint! There is no plaintiff! There is no defendant! No Time Standards! No dirty linen washed in public!
Click here for more information about Non-confrontational Adversarial Divorce. The key to resolution in this process is for you and your spouse to have very competent non-confrontational adversarial attorneys. Be sure to check out an attorney’s reputation. You want a peacemaker not a warrior. If an attorney thinks like a general, talks like a general and moves like a general, he or she lives and works in the confrontational world. He or she is not a non-confrontational adversarial attorney.

Collaborative Divorce is a unique process where you, your spouse, and your own trained and certified collaborative attorneys, and other specialists, work together for, and only for, resolution of all issues.

In Divorce Mediation, you and your spouse work together to resolve your own issues with the help of a divorce mediator. The mediator is not a legal expert or advisor; the mediator establishes the atmosphere and uses proven techniques to help you and your spouse reach agreement on all divorce issues.

Arbitration is used in conjunction with any of the other ADR approaches. It is used to resolve deadlock, i.e., where parties cannot agree on an issue.
Choosing the right approach can make a real difference in the time and cost of this life-altering period.
Anthony C. Adamopoulos ©2016

Mediation and Arbitration of Temporary Orders in Divorce by Howard Goldstein, Mediator and Collaborative Divorce Lawyer

For some time now, from time to time, I have sat in Family Court and watched as the ‘Motion Session’ played out. Litigants waiting, sometime for hours, to get “five minutes” to argue, for example, why Plaintiff needs “support” and why Defendant believes Plaintiff should not get the support. Or perhaps, mother and father have taken a day off  from work to each argue why the kids should be with them for Christmas.

There is a better and wiser way and my colleague Howard Goldstein has explained it well in his article, reprinted below.

The traditional start to a divorce case in Massachusetts is the filing of a complaint, service of a summons and scheduling of temporary orders. The temporary orders are designed to tide over the parties with custody and financial orders that maintain the status quo, or at least the peace, until the case is ready for trial. In Massachusetts a contested no-fault divorce cannot be scheduled for trial any earlier than six months after filing of the complaint, but in practice it usually takes more than a year to get a trial. Because we have a single calendar system now, the judge who decides the temporary orders is likely to be the same judge who presides at trial. For that reason, the decision on temporary orders can determine the entire course of a case and have a major impact on the outcome.

The decision to promptly proceed to temporary orders carries some serious risks however. It is not likely that meaningful discovery will have taken place before the hearing, the clients and lawyers are new to each other, and the tensions and drama attendant to the early stages of a divorce combine to make it more likely that the Judge at the temporary order stage will get it wrong. It is never clear at the outset which party will benefit from the riskiness of the process. It is very difficult once a temporary order is entered by a judge to get it modified. So with a year or longer to a trial, a bad result at the temporary order stage could create undue pressure on at least one of the clients, to either capitulate and settle, or escalate the litigation to try to force a more favorable result. All of this comes at great expense both financially and emotionally. The family can be effected for generations by a hastily convened hearing on temporary orders.

Even in a case that will eventually go to trial, mediating or arbitrating at the temporary order stage can be quite beneficial. Consider the following:

  1. A settlement arrived at by mediation may, by agreement, not be filed in Court and therefore the parties will not prejudice the trial judge one way or another.
  2. Even if the parties wish to file the settlement in Court, the stipulation can be clear that it is without prejudice to a future contested motion for temporary orders. Since the trial judge did not make the decision and it’s a settlement, it will be more likely that it can be modified if circumstances change and it does not reflect the point of view of the trial judge, so that the settlement negotiations, or the trial, if necessary, is much more of a “blank slate” process.
  3. The stipulation for temporary orders can recite a short period of time during which it is operative: perhaps 3 months or 6 months, to give the parties time to negotiate a comprehensive settlement after all discovery has taken place and everyone has access to all relevant information.  Unlike in litigation, in mediation there is no winner or loser, so neither party will feel they have an edge or an advantage, contributing to a better negotiating climate for final resolution.
  4. Typically a Motion for temporary orders will get 15 or 20 minutes of a judge’s attention in Court. The parties can devote as much time as they want to the mediation.
  5. If the parties are unable to agree on temporary orders with the assistance of a mediator, they can agree to arbitrate—in that case a neutral person is given the power by the parties to make the decision. There is a process that is called Med/Arb in which the parties make a good faith effort to settle their motions with the assistance of a mediator, and if its not possible, the same mediator can be authorized in advance to just make a decision after a certain amount of time has passed. Such a process creates incentives to settle, but also gives the parties confidence that if they can’t reach an agreement someone will make a binding decision. The parties can agree in advance with an arbitrator to boundaries that will make the process less risky. For example, the arbitration can be what is called a high low arbitration. The parties set the boundaries within which the decision will be made. So the arbitrator can be authorized to set alimony but it has to be within a predetermined range, acceptable to both parties, or it can be limited to a period of time, such as three months or six months. None of this flexibility is available at a hearing on temporary orders before a judge.

If parties are willing to be creative there are many opportunities to come up with a dispute resolution process that is more client friendly and more flexible than what is available in the Courts. In my experience mediation is most often considered only at the end of a case when it is close to a trial date. This may come from a misguided assumption that appearing too eager for a settlement is a sign of weakness. The opposite is true. Mediating or arbitrating the temporary orders stage of a case make it more likely that the case will settle in its entirety. Clients and opposing counsel can see through posturing. Demonstrating thoughtfulness and creativity in reaching solutions will be respected by your opposing counsel and appreciated by your clients.

 

Howard’s office is in Newton.  Thank you, Howard. 

“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