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Divorce Mediation Blog

Parenting Coordination Case with Implications for Family Law Arbitration: Leon v. Cormier

Wednesday, May 24, 2017

The Massachusetts Appeals Court recently upheld a Probate and Family Court contempt judgment where the defendant had not violated any specific order of the court, in the important case Leon v. Carpenter.

The parties had agreed at the time of divorce that they might someday appoint a parenting coordinator, with the power to make binding decisions on parenting matters, with the reservation that either party could seek court review of the PC’s decisions. Later, they hired a PC, who proceeded to issue decisions in a series of emails, from which the mother did not seek judicial review, and with which she did not comply. A trial judge sanctioned her with a contempt finding and associated remedies; whereupon, and the mother appealed.

She argued that there was no order made by a judge to disobey. The Appeals Court responded that the voluntary undertaking of the parties to comply with the potential PC’s future orders was itself enough to form the core of an unequivocal command, without reference to any specific possible order.

The mother complained that the court had impermissibly delegated its parens patraie role as final arbiter of all things custodial. The Appeals Court disagreed because the trial judge hadn’t imposed the PC on the parties and because some right of review was included in the underlying agreement.

The mother contended that the PC’s decisions had no force since the father had not sought their confirmation by the court, but the Appeals Court held her to her agreement’s words: the burden was on her to seek review; she didn’t; so she was stuck.

The Appeals Court “take” is consistent with many of its family law arbitration cases, including last summer’s Gravelin v. Gravelin, which reiterated the parties’ ability to opt out of the public system in favor of private family law arbitration generally, with the implication that some form of review may be required, but without clear articulation of it form, format or substance.

It is unfortunate that we still don’t have real clarity on the level of review implicated by the cases, but Leon does seem to support two important points:

  1. That arbitration of child matters does not require any heightened level of review, let alone any specific kind (though we still believe that there must be some inherent “best interests’ standard); and
  2. The parties can agree to be bound by an arbitrator’s decision that arises from an agreement that was made well before the onset of the controversy that is arbitrated.

Both points touch on highly sensitive matters for those who resist the spread of family law arbitration. It really is time for a statute to codify this important remedy in a way that reflects societal consensus on its acceptability, standards and boundaries.

 

Family Law Arbitration Supported by Appeals Court, But Questions Remain: Gravelin v. Gravelin

Wednesday, May 11, 2016

In its recent Gravelin v. Gravelin, the Massachusetts Appeals Court flatly confirmed that:

  1. There is strong public policy in favor of arbitration in Massachusetts.

  2. Arbitration is a valid means of resolving family law disputes.

  3. A judge may not order parties to binding arbitration without their agreement.

  4. A judge may enforce parties’ valid agreement to arbitrate present disputes.

  5. While the Massachusetts version of the Uniform Arbitration Act (M.G.L., ch. 251) does not explicitly govern family law matters, its overarching principles apply.

  6. Review of an arbitral award is limited to determine if the arbitrator:

      a. Awarded relief beyond that to which the parties agreed;
      b. Awarded relief prohibited by law; or
      c. Decided a matter based on fraud, arbitrary conduct or procedural irregularity.

  7. A judgment that enters upon confirmation of an arbitrator’s award on a matter that is modifiable, remains modifiable, by the court under applicable standards.

Four important questions that Gravelin did not confirm or clarify, with our comments:

  1. While a judge may enforce of a valid agreement to arbitrate a present dispute, is it error not to do so?
    Comment: We would think so given that the applicability of MUAA “principles”, which include an obligation to enforce a valid agreement to arbitrate.

  2. Does Justice Blake’s comment that the appellant had the advice of counsel in agreeing to arbitrate establish that as a quid quo pro to enforcement?
    Comment: Advice of counsel is not required to bind a party to arbitrate in a commercial context, as we all know from the boxes we routinely check with every software purchase and credit card transaction. Perhaps counsel should be required in the special context of family law.

  3. Is a judge precluded from enforcing an agreement to arbitrate that is embodied in a previous agreement, such as a separation agreement, for a dispute that arises later in time?
    Comment: Justice Blake invoked Bloksberg v. Bloksburg (1979) to suggest that enforcement of such an agreement to arbitrate is not required, because that would implicate established ban on courts imposing arbitration where the parties have not agreed to it. Bloksburg, in turn, suggests the policy justification that this might permit a judge to slip an arbitration clause into a judgment on his own initiative; and that a previously agreed arbitration clause is inherently modifiable. This precedent, and reliance upon it, strikes us as simplistic, because:
      a. If the parties validly agreed to arbitrate future disputes in an incorporated separation agreement, how has the court usurped their rights?
      b. If the court declines to enforce an arbitration provision from a separation agreement on the theory of modifiability, should that decision not require findings of material changed circumstances for a merged provision, or something more, for a surviving one?
  4. Whither the concepts of greater review for child support or parenting matters?
    Comment: Gravelin was a child support modification matter. The previous Reynolds v. Whitman matter included a child support award, too. In the earlier case, the Appeals Court found no fault for not applying any heightened level of review beyond a “fair & reasonable” or “fair & equitable” test, as it implied was required for asset division, because the trial judge showed “meticulous attention to the argument of the parties”, thus, the appellate court observed, negating the need for de novo review. Taken together, do the two cases close the matter of child support review? Unfortunately for the appellant (and for readers), appeal of the review hearing process by the trial judge was foreclosed by procedural defect, so clarity remains. And, since parenting issues were not a part of this case, or any other reported case, just where do we stand on arbitration of parenting matters?

No question, Gravelin is a helpful case, but, as you’ve read here before, a dedicated family law arbitration statute could surely help clarify these remaining questions. Thanks to the Appeals Court for highlighting this, intentionally or otherwise.

 

Collaborative Law and Arbitration

Friday, July 31, 2015

Previously, we have discussed the use of arbitration to resolve complex and simple matters outside of court, in a manner that is cost-effective, private and empowering of its participants. We have advocated for use of private dispute resolution at all stages and for all kinds of determinations, ranging from discovery to valuations to cases in whole. We see it work effectively year round.

Recently, we learned that our friend and colleague, attorney Anthony Adamopoulos, of Salem, who is great promoter of family law arbitration in word and deed, has coined “Deadlock Arbitration (SM)” as a way of capturing the idea that when people who have opted for the collaborative process hit roadblock that they can’t negotiate successfully, they need not abandon their chosen process. Rather, they can break the deadlock with a swift, fair and inexpensive resolution by arbitration, and then get back to work in the collaborative format. Makes a lot of sense to us.

Anthony recently lectured on arbitration at Divorce Center, Inc.’s Networking/Professional Development Breakfast (4.29.15) on Using Arbitration to Reach Resolution. Congratulations to Anthony. Take a look at his website: divorcingoptions.com/arbitration_services.php

 

Matrimonial Arbitration is the Not Credit Card Kind

Wednesday, May 27, 2015

In the May 25th Opinion page of The Boston Globe, Law Professor Jeff Sovern wrote convincingly that arbitration, the kind that appears in the very small print of credit card agreements should be banned as unfair and anti-consumer. Thinking back to law school the term “contract of adhesion” comes to mind, where the commercially powerful victimizes the weak with terms on which the latter has no practical ability to negotiate.

But the piece also brings us back far more recent events, in which one of us attempted, over a period of nearly 10 years, to advance a proposed Family Law Arbitration Act, on behalf of the American Academy of Matrimonial Lawyers, through the pre-legislative stage. In trying to build support among the bar by endorsement of the Massachusetts and Boston Bar Associations, without which legislators will not consider sponsorship, Bill Levine spent parts of 3 separate years successfully obtaining approvals of the associations’ family law sections, only to founder when other sections had interests that viewed family law arbitration as if it emanated from the small print of similarly one-sided transactions. In some frustration, and by an otherwise tactical decision, we backed away from the effort, approval of the broader bar associations being unlikely, to await the Uniform Laws Commission’s (formerly NCCUSL) Model Family Law Arbitration Act that is expected in 2016 or so, when we expect to take another run.

Matrimonial arbitration is not credit card arbitration. Every agreement from which it must arise is one in which that parties have, or have the right, to counsel. In each case, both parties have an absolute right to say “no”. Every agreement to arbitrate future disputes, as part of the divorce agreement is approved by a judge and subject to later objection and review on the basis of contract defenses such as incapacity, duress, coercion or undue influence. Each agreement to arbitrate a present dispute is subject to court approval. Subject matter limitations in the name of parens patraie, such as best interests review and trial de novo of custody matters are policy long established in common law. As a matter of current case law here, all arbitration awards are likely subject to fairness review.

Would some overbearing litigants seek advantage by cutting off opponents’ direct access to court? Most likely, yes. Are there ways to vet and avoid the consummation of such schemes that deny free will? Absolutely. Should this concern throw out legislative promotion of a cost-effective process that merely adds one more optional remedy for parties’ who struggle with a highly public, overloaded and fiscally-hobbled public court system, serving themselves and relieving resource scarcity for the public at the same time? Emphatically, no.

Don’t let banks prey on weak consumers. But, at the same time, see the problem for what it is: overbearing commercial interests reducing their own liability for predatory lending practices; and not an indictment of arbitration per se.

 

A Shout-out for Bullet Arbitration

Wednesday, December 18, 2013

Recently, we handled a case where the parties had been engaged in divorce mediation with a really great mediator, after litigating hotly, but inconclusively, for some time. They were progressing in the new process, but kept running into a stubborn problem: the value of the husband's business, and the level of compensation from it, were widely contested; so much so, that they could not reach closure on either asset distribution or support.

The lawyers for the parties called, with their mediator, and inquired about family law arbitration (an out-of-court adjudication to which they would agree to be bound, under rules and conditions that they themselves negotiated and set). We, of course, said "yes".

Within the week, a deal on the rules was struck: each expert would give a narrative presentation of his valuation analysis, subject to a defined period of cross-examination by opposing counsel and questioning by the arbitrator, followed by re-direct examination by proponent's counsel. The rules of evidence applied to cross and re-direct exams. The experts were sequestered. The arbitrator's (who also served as a master, facts final by appointment of the court) work product would be a report/award of the valuation, with a brief rationale. The parties waived findings of fact and closing arguments.

These were the rules that they chose, and that worked for them. The proceedings could have been less formal, or completely court-like, if they preferred; but they seized control of their own situation and made it work in the way that made sense to them: a successful negotiation.

Within about three weeks of the initial call, the hearing occurred and 10 days later the parties had their arbitrated result. It included a value for the husband's interest and it explained the income predicate used in the capitalization of cash flows.

A few days after, they returned to mediation and settled their case.

 

Six Small Reasons to Celebrate Private Dispute Resolution

Wednesday, November 13, 2013

When we began our private practice of divorce mediation and family law arbitration, we debated whether or not our website should make reference to our personal lives, and specifically, the facts that we are both divorced, and married to each other. We concluded that we should, because we felt it relevant to our mutual decision to leave our prior professional lives (long-time divorce litigator and Probate and Family Court judge) to pursue new careers as private dispute resolution providers, exclusively. Time and professional experience have rewarded those decisions, and our personal life underscores their basis.

Here are 6 little reasons why.

They range in age from 9 years to 7 days (at first posting). They are our grandchildren, biological and various steps, but all ours. They share a heritage of grandparental divorces, not something to celebrate, but worthy of acknowledgement nonetheless: not because divorces occurred, but because of how they were carried out. Litigation-free, lawyer-assisted and never disconnected from the human and financial stakes, these divorces today allow grandparents from all over, in terms of geography and personal circumstances, to enjoy their young offspring in harmony with each other and with remarkably little tension.

Why are we thinking of this today, aside from the welcoming of our youngest? Because not everyone is so fortunate. Divorce litigation leaves a long and sorry legacy: diminished financial resources, eroded trust, eradicated sense of common ties and far too often, serial court cases. Even prolonged disputes that avoid direct court confrontations pose challenges to the re-structured families that emerge from divorce.

For sure, some cases just need court resolution for a host of reasons, but far more do not. The capacity of parents to resolve their legal differences civilly, despite their irreconcilable marital differences, may be trumped by irrationality, criminality or even novelty of legal issues. One thing is equally sure. Court solutions never yield enhanced capacity to get along; something that grand-parenting, without ratcheting up tension for younger generations, absolutely requires. The impending holidays highlight this truth.

Whether through mediation (facilitated negotiations) or arbitration (private and negotiated third party decision-making), divorcing parties avoid the worst of the excess that divorce litigation entails: exaggeration of differences in the context of winners and losers, played out on a public stage. As importantly, they have the chance to enhance respect for each other and for themselves, avoid the chaos that grips litigating families, cut financial losses and sometimes even enhance good will. For all of that, we embrace our work.

With 6 small reasons for gratitude, we are looking forward to the coming holidays.

 

High-Low Agreements: Mitigating Finality Anxiety In Family Law Arbitration

Wednesday, September 18, 2013

One of the most prevalent fears that lawyers have in using divorce and other family law arbitration is that under the Massachusetts version of the Uniform Arbitration Act, the parties waive the right to appeal an adverse award for abuse of discretion or errors of law. This is largely true for property and alimony matters, less clearly so for custody and child support.

One way of cutting the sense of risk is to borrow a practice from the commercial litigation world, by entering to a high-low agreement. As examples only, the parties can agree that:

  1. The overall percentage division shall be no broader than 60-40.
  2. The value of the house will be no more than $750,000 and no less than $600,000.
  3. The alimony sum shall be no less than $30,000 and no more that $50,000; and it shall run for a minimum term of 60 months but not longer than 84 months.

The parties may disclose the agreement to the arbitrator or not, as they see fit.

In most cases most of the time, the parties can agree on a reasonable range of outcome but can’t zero in on a final result. Why give up an expedited, cost-effective, flexible and private remedy for fear of lost appellate rights, when a high-low understanding can essentially rule out any motivation to appeal in advance? The costs, delays and high bar for successful appeal make it impractical anyway for all but a very few people in an exceedingly small number of instances.

 

Massachusetts Alimony: Watching the Pot - Part 3 An Arbitrator’s Perspective

Wednesday, April 24, 2013

In our last entry, we celebrated the freedom that a facilitative divorce mediator has when the appellate courts have not yet weighed in on the vagaries and pockets of discretion in the Massachusetts’ one-year old alimony “reform” statute. A statute that can be fairly characterized as open to flexible application can promote rather than limit open discussion, which for divorce mediation, is good.

The arbitrator’s view is quite different.

As family law arbitrators, we are essentially, private judges. While classical commercial arbitration law does not confine the neutral to precise application of prevailing law, family law arbitrators are bound to apply the law because the final result must still be deemed to be “fair and reasonable” to the reviewing judge, under our law. Moreover, when domestic relations clients hire an arbitrator, they are looking for objective and reasoned decision-making. Arbitration is not, after all, supposed to be arbitrary.

In this role, we are no less bound than a trial judge in court to search out what the law is on each point, and to apply it to the facts of the case. The imperfect analogies that are the core methodology of legal inquiry, that may hem in mediation, are the arbitrator’s roadmap. Where the parties do not have appellate rights, or even if they did1 , “getting it right” is the goal. Appellate case law is essential to that cause.

Divorce mediators ask: how may the law be applied to best serve this severing or restructuring family? Family law arbitrators (and masters, facts final), by contrast, ask themselves: what would I do if I were a judge in this case? Clear or confusing, slow and steady or sudden and messy, appellate case law gives arbitrators a window into those factors that would influence a judge in exercising discretion and in balancing competing interests that are represented by this complex statute.

For arbitrators, it doesn’t matter what we wish for, rather it simply matters what is. Let the pot begin to boil.


1As would be permitted if the proposed family law arbitration statute that is advanced by the American Academy of Matrimonial Lawyers – MA Chapter, were law.

 

Divorce Arbitration: Nine Reasons For a Family Law Arbitration Statute in Massachusetts

Wednesday, March 06, 2013

As discussed in earlier entries, we are advocate for the adoption of a comprehensive family law arbitration act, based on a model created by the American Academy of Matrimonial Lawyers, and customized locally by the AAML Massachusetts Chapter. Here are nine reasons that we believe would make such a new law beneficial.

  1. Parties would no longer seek the permission of a judge to arbitrate. Instead, they would present their negotiated agreement to arbitrate for incorporation into an enforceable order based on their own, binding, determination.
  2. Except for parenting and child support determinations, which would be subject to best interests review by the court at the request of either party, the award would be binding on the court, subject to arbitration review standards only.
  3. The parties could opt in to appellate rights.
  4. Standards for contesting an agreement to arbitrate would be specific, without compromising existing contract remedies such and fraud and duress.
  5. A judge would have clear authority to appoint an arbitrator if the parties have agreed to arbitrate but they have failed to name an arbitrator, or a methodology for replacing one, if necessary.
  6. The obligations of an arbitrator to disclose all possible conflicts would be specific and comprehensive.
  7. Arbitrators would be automatically authorized to enter temporary orders and regulate discovery, allowing speedy determination of preliminary matters, and permitting efficient case management (avoiding the cumbersome aspects of master proceedings).
  8. Awards on family law matters that are subject to modification would be clearly subject to later modification, consistent with substantive law.
  9. Litigants could avoid the costly and inefficient down time that occurs while parties and counsel wait for motion list and trial calendar openings, crowded courtrooms and while they await court decisions. They would have a legally enforceable right to a timely award, maximize their autonomy, privacy, convenience and efficiency.

 

Why we need a family law arbitration law statute in Massachusetts

Thursday, March 08, 2012

Family law arbitration is a concept whose time is way, way overdue. Arbitration is the private, consensual submission of a dispute to a person whom the parties select and regulate by contract; and that person’s job is almost always to make a final and binding decision for the parties, instead of a judge after a public court trial. The parties pick their decision-maker, accounting for skill, integrity, convenience, cost and subject matter expertise. They choose their place. They set the timing. They define their own rules of procedure – or they may choose to apply traditional courtroom-type rules. They receive their decisions within the time that they direct in their agreement to arbitrate. And, it is all private. So, why isn’t every one doing it?

For one, most people simply do not know that this alternative exists. Its history is mostly in the commercial area of law, and only occasionally have family law attorneys tried arbitration. When they do, they love it. Second, it is not obvious that it makes sense to pay for a decision maker, when taxpayer dollars pay for judges to do that job. At one level this makes sense, but anyone who has spent any significant amount of time in the courts knows that the increased costs of representation by lawyers due to the inevitable inefficiencies of the public system can outweigh the costs of an arbitrator many times, and sometimes many times over.

Third, many lawyers are uncomfortable with the prospect of the process (most have not tried it) because most available arbitrators whom they know well and trust are competing litigators, and selecting a direct business competitor to arbitrate a case when you might be in court against the arbitrator that morning or the next day in another case can be uncomfortable for lawyers and clients alike. Finally, lawyers are leery of the fact that under existing law, all binding arbitration is truly final, and therefore, not subject to appeal, as is a judge-made decision. So, it feels risky to lawyers, as it is the last stop for the client without further litigation recourse.

To address some of the impediments to family law arbitration, several other states have enacting Family Law focused arbitration laws. The American Academy of Matrimonial Lawyers (AAML), of which Bill and Chouteau Levine are both longtime fellows, has created a model act (that is, a format that individual states may modify to meet their local needs and practices) for matrimonial arbitration. In turn, the Massachusetts Chapter of AAML has adapted that model act to Massachusetts’ needs, and is in the process of seeking support for its eventual submission to the Massachusetts legislature. Bill Levine of LDRC is leading that effort on behalf of AAML-MA. You can see the Proposed Family Law Arbitration Act here.

What questions or thoughts do you have about Family Law Arbitration?

 



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