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A Lawyer-attended Mediation Turned Dispute Resolution Coordinator Engagement

The parties and their attorneys participated in a 1½ day mediation process that resulted in substantial agreement on their complex divorce matter. While they agreed on the structure of their property distribution and alimony arrangement, there were a number of issues they could not quite close; and they had serious concerns about their capacity to conclude the marketing and sale of several assets that would lead to cash distributions to each of them. They also continued to have disagreements on adjustments necessary to reconcile their uses of marital moneys during the pendency of the case.

The lawyers negotiated terms in the parties’ separation agreement that included the appointment of the LDRC mediator to further act as a “dispute resolution coordinator” (DRC) (a hybrid form of mediation and as necessary, arbitration) for the settlement of the remaining factual disputes; and to supervise, and if required, consummate the sales. We worked with counsel to structure these responsibilities, and the parties executed their agreement. They then obtained a divorce. By the judge’s acceptance of the parties’ agreement, our DRC work took on the force of a court order.

Shortly after, the parties presented the DRC with their competing marketing plans for selling two homes, several artworks and a small vintage car collection. He met with the parties and mediated most of the competing aspects of the marketing plans, deciding in the role as arbitrator, those aspects upon which they could not agree. This included input from the suggested brokers and consideration of several issues involving zoning and land use. After further consideration of the artworks/car issues, the parties agreed to trade certain assets instead of selling items piecemeal. Commissions, time and uncertainty were replaced by a narrowing of issues.

We then turned to the cash use issues. The parties opted to handle these matters without counsel present, and we held an informal arbitration hearing under ground rules that permitted both the husband and the wife to provide any documents that each felt was relevant, for each to make a 20 minute presentation to the DRC, followed by a question period (each to the other and the DRC to them both). The DRC then proposed a resolution, to which the parties did not agree. The next day, he issued an arbitration award settling the cash use matter.

That left the real estate marketing matters. The first parcel drew a relatively quick offer that the parties’ negotiated themselves, without substantial input from the DRC. The second home proved to be considerably more complex, including marketing price reductions, a broker change and interfacing with land use counsel. On two occasions, we arbitrated disputes over strategic marketing decisions. In the end, the parties agreed on the acceptance of an offer to purchase, after some negotiation; and our job as DRC was complete.

NOTE: THIS CASE STUDY IS BASED ON A COMPOSITE OF ACTUAL LDRC CASES BUT THE FACTS HAVE BEEN ALTERED TO ASSURE THE CONFIDENTIALITY OF OUR CLIENTS.