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Divorce Mediation Blog

Divorce Arbitration: Three Reasons Why It is Not Just for the Wealthy

Wednesday, March 13, 2013

Divorce Arbitration, or the presentation of family law disputes to an agreed impartial third party, for decision outside of court, is not a remedy that is either intended for or beneficial only to the wealthy. In fact, it may be of greater use to the “99 percent” because of its ability to be tailored by cost-sensitivity. Here are three examples:

  1. The costs of delays in court and court proceedings hit lower economic clients harder as a proportion of their resources than wealthier people, as for example, non-progressive taxes do (think cigarette, gasoline and MA state income taxes).
  2. The ability to define procedural rules by contract permits lower economic clients to have a trial that they
    1. time limit overall (i.e., “no more than 3 hours for hearing”;
    2. limit time of direct or cross examination of witnesses (i.e., direct examination of 1 hour with, or cross-examination limited to ½ hour);
    3. use written direct testimony (already in use in the federal courts);
    4. relax rules regarding hearsay and other forms of objections;
    5. eliminate written findings of fact and/or limit scope of the arbitator’s written rationale; or
    6. create a mutual trial “budget” (ie, agree that the marital estate will pay no more than $2,500 for the arbitration hearing and to accomplish that...).
  3. As arbitration becomes more prevalent, there will inevitably be more arbitrators who cater to different segments of the market by use of lower or higher hourly rates, or even lump sum fee arrangements.

 

Divorce Mediation and Arbitration Hybrid

Thursday, October 18, 2012

We have recently encountered an interesting model for a hybrid dispute resolution process. It resulted from discussions with two family law attorneys who were motivated, along with their clients, to try hard to achieve a facilitated settlement, while avoiding the use of public trial in court, in any event.

The parties engaged both of the principals of LDRC to work on the case. They agreed to have their lawyers begin by informally presenting the essential agreed and disputed “facts” to one of us for an evaluation of strengths and weaknesses, followed by mediation. Failing settlement, the parties would then present the key disputed facts to the other LDRC principal, as an arbitrator, to decide and settle the key points presumed to be the root of the parties’ impasse. In the interim, the principals would not discuss the case with each other, at all.

With these key facts no longer at issue, the parties would return to work with both principals, now as co-mediators, bringing all perspectives possible into the mediation room, or quite likely, rooms (the mediators “shuttling” between each party-lawyer team). In the absence of resolution, the mediators would change hats, and simply decide the case as arbitrators.

We believe that this promises an efficient, fair and final process.

 

MA Bar Association Family Law Section Council Approves Proposed Family Law Arbitration Act

Monday, April 30, 2012

The Massachusetts Bar Association Family Law Section Council has approved the proposed Family Law Arbitration Act that LDRC's William M. Levine presented to it on behalf of the Massachusetts Chapter of the American Academy of Matrimonial Lawyers. Bill will appear before the M.B.A.'s House of Delegates to advocate for the proposed legislation on May 17, 2012. The House of Delegates decides, on behalf of M.B.A, if it will support submission of the potential state law to the Massachusetts legislature.

 



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