“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.

Facing Divorce? Why is Collaborative Divorce better than Litigated Divorce?

The first step in facing divorce is to select the best divorce process for the two of you, for example, litigation or Collaboration (Collaborative Divorce).

Of course, you each have different interests and goals; in litigation, a judge may dismiss them outright; that will not happen in Collaborative Divorce.

The first step.

Usually, it is best for the two of you to decide on the process, before selecting your attorneys.  Because attorneys are best at “what they do”, going to an attorney before selecting a process is not usually beneficial.  For example, if you go to a surgery oncologist for advice on how to handle a newly discovered cancer, you will most likely get advice on the best surgery. If you go to a medical oncologist, you will get advice on cancer drugs. The radiology oncologist will give you advice on cancer radiation. It is the same in divorce. Study and select the process before selecting the attorney. Being good at divorce litigation does not qualify an attorney to be a Collaborative Divorce Attorney. Only Collaborative Divorce Certified Attorneys can provide Collaborative Divorce representation.

Divorce Litigation.

Litigation involves confrontation. Confrontation begins when one spouse declares, in a public document called a “Complaint for Divorce”, that he/she is suing the other for divorce and wants custody of the children (if any) and an equitable share of all property. In this public document, the Plaintiff is the accuser and the defendant is the accused or defender. (In litigation, proceedings and most documents will be open to and available to the public for viewing and copying.)

In litigation, there are rules, procedures and laws that set out the procedure for divorce litigation, for example, Time Standards.

When considering what process is best for a spouse’s needs and budget, it is important to understand the effect of Time Standards.

Time Standards establish a list of events that must be addressed. Failure to address an event could result in sanctions. Note, just because the Time Standards order certain events, for example, the completion, filing, and serving of a Financial Statement, litigators know there are other rules that permit parties to skip, delay or get around a Time Standards rule.

Sound confusing? For litigators it is not; for persons representing themselves, it may be the first of many revelations. If someone represents himself of herself, the goal is not to get it all right- that is not going to happen- the goal is to not pay a sanction when she or he gets it wrong.

For those considering cost issues, litigation, by its nature, will result in fees for attorneys to “address” required events. Given the number of “events” in the Time Standards, this can be costly.

In litigation, if you and your spouse cannot resolve your differences, you will have a court trial, where one judge will decide your “divorced” future.

Collaborative Divorce.

In Collaborative Divorce, spouses use the Court System once, when they appear for an uncontested divorce hearing of about five minutes. No Divorce Complaint! No Plaintiff! No Defendant! No Time Standards! No dirty linen washed in public!

Collaborative Divorce is a unique process where spouses and their own trained and certified Collaborative Attorneys and “coaches” work together for, and only for, resolution of all issues.

In Collaborative Divorce, the spouses, their respective lawyers and other Collaborative Team members make up the Collaborative Team. The Team has one goal, the collaborative resolution of all issues without trial or arbitration, or the threat of either.

The Collaborative Team includes coaches who make the process more efficient and usually less expensive. The most common Collaborative Coaches are the Facilitator and the Financial Neutral. Your Facilitator expedites the process by helping each spouse precisely identify short and long-term goals. Your Financial Neutral expedites the process by analyzing the unique needs of each family, identifying tax provisions related to those needs and creating realistic plans to preserve family income and property.

Each attorney will be a trained and certified Collaborative Divorce Attorney. (Not all attorneys are Collaboratively Certified.)

Collaborative Divorce is often the least expensive and most efficient approach because court appearances, filings and other litigation requirements are avoided and because Coaches, who often cost less than litigation attorneys do, perform services that litigation attorneys normally provide.

© 2015 by Attorney Anthony C. Adamopoulos

MCLC_LogoFinal_CMYK_02

NEED A GOOD PCR?

What is a PCR?

Well, you probably have a good PCP, primary care physician, right? And, if you needed a referral to a good arthritis specialist, your PCP would give you a referral, right?
I am a Primary Care Referrer attorney. This means in addition to providing arbitration, mediation and collaborative representation, I act as a Primary Care Referrer attorney who will refer you to the experienced lawyer you need.
For example, I recently received a request for a referral from a client who had slipped, fell and was injured in a store. I was happy to refer this “hurting” client to a respected attorney who is an experienced, recognized personal injury attorney.
My colleague has been active in the greater Boston trial bar since 1985. He has taken numerous cases to verdict – and settled hundreds more. He represents persons in Massachusetts and elsewhere. (In an Ohio case, the jury returned a three million five hundred thousand dollar verdict for his side.) Recently, he received the 2015 President’s Award from the Massachusetts Academy of Trial Attorneys.

The client who called for a referral got a pro. You will also.

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.

Children and Christmas Visitation?

My colleage Susan Lillis has written an excellent article on the annual question of “How do we handle the children at Christmas time?” 

From my  experience as a Collaborative Divorce Attorney, Mediator and past GAL, I cannot stress the value of “divorcing families” developing their own holiday traditions which can be more beneficial than the “alternating scenario”.  

Need Referral to Experienced Lawyer

DO YOU KNOW A GOOD LAWYER WHO DOES INTER GALACTIC SPACE LAW?

Actually, I don’t; but if you needed one, I would make the effort to find one.

Besides providing arbitration, mediation and collaborative representation, I act as a Primary Care Attorney who can refer you to the experienced lawyer you need.

Recently, I received a request for an elder care planning attorney. I was happy to refer the family to a trusted attorney who was an experienced elder care and trust lawyer.

Today, I received a “thank you” from the family I referred to the elder care planning and trust attorney. The “thank you” note described the attorney as:

… lovely, very kind and “down to earth”.  Everyone in my family said how [she was] nice, kind and totally explained things to us.  Again thank you, thank you, thank you. 

One of the most rewarding experiences for me is to receive positive feedback from someone I referred to a good attorney. My network of experienced, respected attorneys is available for almost any need, for example – a death in the family needs a probate attorney; an accident needs a negligence accident attorney; planning for the future needs an estate lawyer; winning the Lottery needs… well you know what I mean.

Call if you need a referral.

 

Reducing the Cost of Divorce with Limited Assistance Representation (LAR)

By: Attorney Anthony C. Adamopoulos

If you are facing divorce, you may be feeling a lot of uncertainty. If you are also having financial difficulties, you may feel more uncertainty. This post is intended to provide information and resources to help you understand a different alternative when facing divorce; an alternative that may give you more certainty.

What is Limited Assistance Representation (LAR)?

Limited Assistance Representation allows you to hire me to help you with some, but not all, of your divorce proceedings. In a written agreement, you and I outline exactly what I am expected to do.  Here are some areas in which I can help you:

  • Limited Assistance for a Court Appearance: This allows you to hire me to go with you to court and “appear” for you, one appearance at a time, for example, appear at a Pre-Trial Conference.
  • Limited Assistance for a Service: This allows you to hire me for one type of service, for example, to review a separation agreement.
  • Limited Assistance for Document Preparation:  This allows you to hire me to prepare a document to be filed with the court, for example, a Pre Trial Memorandum.
  • Limited Assistance for Help in Negotiating: This allows you and I to focus on those issues and approaches that will most likely achieve settlement.

Benefits of Limited Assistance Representation For You:

  • Limited Assistance Representation can be helpful if you have financial restrictions keeping you from hiring an attorney for the entire divorce process. With Limited Assistance, you only pay for the services you need.
  • Limited Assistance Representation allows you to hire an attorney for “game changing” events such as the Pre-Trial Conference with the judge when an attorney’s experience can make a difference in the outcome of the Conference.

Is Limited Assistance Representation Appropriate For You?

  • Limited Assistance Representation is appropriate when you do not wish to represent yourself and cannot hire an attorney for the entire case, but you still need representation for a specific matter.
  • Limited Assistance Representation is appropriate when you feel comfortable taking on certain responsibilities, for example, the preparation of the Financial Statement and the gathering, organizing and producing of financial records.
  • Limited Assistance Representation is appropriate for an existing court matter or a matter soon to be filed with the court.

Important Considerations:

  •  Under the law people who represent themselves are not entitled to special considerations or leniency. This is important because many people believe that if they represent themselves the judge must “go easy” on them.

 

MORE INFORMATION:

 

 

 

 

Divorce Alternative Dispute Resolution (ADR) – Arbitration or Mediation?

By Anthony C. Adamopoulos (© 2014)

The two most common divorce alternative dispute resolution (ADR) procedures are mediation and divorce arbitration. While each is an effective alternative, each serves a different purpose and each has its own format.

Divorce mediation is a form of dispute negotiation between divorcing parties. It is led by a neutral called a mediator. The mediator’s sole responsibility is to help the parties reach an agreement on the three major concerns of any divorce – the children, support and property division.

The mediator does not decide any issue. The mediator helps focus the parties on producing a written settlement agreement that addresses the issues that a judge would address in a divorce trial or at an uncontested settlement hearing.

In mediation, it is wise and useful for each party to have their own attorney; however, unlike court litigation, a party’s attorney does not usually attend mediation sessions. Each attorney acts as an advisor to his or her client on how the “settlement hearing judge” will respond to the settlement agreement or parts of it being considered by the parties.

Mediation is appropriate whenever two parties want to sit with each other and “work-out” their own issues, rather than engage in litigation.

Arbitration is a form of dispute decision making where a neutral called an arbitrator decides the dispute. The arbitrator’s sole responsibility is to decide a dispute between the parties. The dispute can be over any divorce issue. The arbitrator’s decision is called an Award. The Award, or its substance, is inserted into the parties’ settlement agreement. As a general rule, arbitration awards are binding on the parties. This means that, except in certain unusual circumstances, the parties cannot appeal the decision.

When the decision to arbitrate a dispute is made, it is wise and useful for each party to have their own attorney. At the arbitration hearing, each attorney will present the respective position of each party. Presentations can be simple and direct because they are not laden with the many rules associated with court litigation.