Divorce Mediation Blog

Twinkies’ Mediation Reported

Wednesday, November 21, 2012

The Boston Globe greeted pre-Thanksgiving readers with the news that Twinkies are not yet dead. After Hostess Brands concluded that it could not survive negotiations with it bakers’ union, it asked the U.S. Bankruptcy Court for permission to convert its reorganization to a liquidation. Panic-buying consumed pre-fiscal cliff America, as Twinkies sales of $4 and $5 a pair were reported from online buying services.

But, the Bankruptcy judge pulled Ding Dongs from the brink. He ordered the ailing Hostess into mediation with the recalcitrant union, on strike since October, over threatened retirement and health insurance cutbacks. It is a time-limited reprieve: 24 hours to mediate. But the loss of Ho Ho’s, 300 reported jobs in Massachusetts alone and presumably the interests of creditors demanded one last effort, with the help of a skilled facilitator. So, the last firewall between a public starved for nostalgia (despite its presidential election decision – or maybe because of it) and its prized junk food is mediation.

Well, maybe not. The Globe also reported that the pending bankruptcy has drawn companies who are circling to pick the Twinkies brand from the bones of the dying Hostess, should she not survive the last-ditch mediation effort. Naturally, we are rooting for the mediator.


Litigation Attorneys and Mediation

Monday, November 12, 2012

As our practice develops, more of it seems devoted to lawyer-attended mediations, arbitrations and hybrids. When clients come to us with their counsel it is most often after the parties have experienced some litigation, and its attendant costs, delays and confrontations. They are either in the phase where the case has been pre-tried by the court and sits in the long queue for trial; or before the pre-trial conference itself. Occasionally, the case is in an earlier stage.

Why would litigation attorneys encourage or participate in mediation at any of these stages of litigation? It might seem to run counter to their own economic interest, and it involves relaxing some measure of control, something lawyers are loath to do. One reason is that some clients insist upon it, having heard from others that it may be an effective way of shortening what feels like an interminable process. Another is the wear and tear that increasing costs and the lack of any assured containment within the public court process imposes on lawyers and clients alike.

But, we find that the most common reason is that every week, more lawyers are realizing that it works! The lawyers themselves realize that they do retain a good measure of influence in this process. They see and experience that the mediation is fairly run; that everyone has their “say”; and, that in the end, no one is forced to do anything. Counsel also realizes that it is better to be paid fully for a process that bring early closure, than to run up an often uncollectible bill from a client after a long trial. Clients in the end are happier, and thus, more inclined to refer new clients to the mediation-friendly lawyer.

Mediators who do not welcome litigation counsel are cutting off a valuable source of business. Lawyers who refuse to mediate are short-selling their clients. The meeting of the two is good for all, especially the clients.


Appointed Arbitrators and Masters

Thursday, October 18, 2012

Increasingly, litigation parties whose disputes elude settlement are opting out of the public trial process and electing private resolution services instead. Sometimes, the mutual recognition of the need to “go private” itself unlocks the capacity to agree on substantive points; but often the parties remain fixed in their negotiating positions, despite the recognition that they share important process interests. For these people, third-party decision-making remains necessary.

Contracting parties may, for a variety of reasons, conclude that future disputes may well occur, yet they share an interest in avoiding litigation. Therefore, they designate an arbitrator before whom to air future controversies. The arbitrator holds the power make “awards” that are final and binding (subject in the case of child support and child custody matters to review by the court for “best interests”). If the designated arbitrator becomes unable or unwilling to serve, the parties may designate the court as the agent to appoint another arbitrator.

The decision to seek private adjudication may also arise from the litigation process itself. In these cases, the result may be arbitration, but it may also take the form of a court-appointed “master”. A master sits as an agent of the court, holding hearings, considering evidence, finding “facts” and recommending resolutions. The master’s work is subject to review by the appointing court, most often resulting in adoption of the master’s results.

In either case, the parties have asserted control over their own destiny, despite their inability to achieve substantive settlement. They select their decision-maker and conduct hearings at times and with rules to which they themselves agree, with efficiency and privacy maximized.


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