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Divorce Mediation Blog

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.

 

What does Katz, Nannis say about family law arbitration? Katz, Nannis & Solomon v. Levine – Part 2

Wednesday, March 30, 2016

In our last entry, we commented on the Supreme Judicial Court case that recently held contracting parties to the tightly limited review provisions of the Massachusetts version of the Uniform Arbitration Act, M.G.L., ch, 251 ("UAA"), and barring contractual terms that broaden review. Katz, Nannis was a civil action involving the involuntary of ejection of a partner from a CPA firm, and a dispute over enforcement of an arbitral award denying him exit benefits, and assessing damages for breach of non-compete provision, all pursuant to the principals’ election of binding arbitration in their business agreement.

Today, we wonder how that may impact current state of family law arbitration, here.

The most prominent family law appellate case in Massachusetts is Reynolds v. Whitman, 40 Mass. App. Ct. 315 (1996), wherein the prime issue was. "… whether alimony and child support were properly made the subjects of voluntary and binding arbitration pursuant to a separation agreement." Id., at 316. The former husband, aggrieved by an arbitrator's award, argued that arbitration of this dispute violated public policy.

The Appeals Court disagreed, finding the arbitration provision enforceable and the award properly confirmed. Underscoring its view of enforceability, the appellate panel noted that:

    Rather than discouraging arbitration of domestic disputes, the cases support it. Arbitration may offer a more efficient resolution of the dispute, reduce court congestion, and minimize acrimony that often occurs with divorcing parties. Id., at 318.

However, the court concluded with the caveat that:

    Any arbitration award must, of course, be subject to review by the judge, who has the authority, and the obligation under G.L., c. 208, s. 34, to make a fair and equitable distribution of property. Id.

While the contested issues in Reynolds included support, the court noted that the Probate and Family Court had found the arbitration award to be fair and reasonable. It is only fair to conclude that family arbitrator's awards must be found to be fair and reasonable as well as free from defects that can give rise to denial of confirmation of an award under the UAA.

The Reynolds Appeals Court noted that nothing in the parties' agreement to arbitrate would "...strip the judge of non-delegable supervisory functions." Id. We presume that the court, here, refers to child custody matters, wherein the parties may not strip the court of its parent patraie powers. This suggests either that the trials court should apply a higher "best interests" review to an award on point; or more extremely, a non-was able right to trial de novo.

Finally, it is pertinent to the current topic, that the Reynolds separation agreement called for arbitration to be binding "...unless modified by the Probate Court." We cannot know if this was an artful use of "modified", referring to a later alteration of the the award for proven changed circumstances in a modification action; or less artfully, to the vacation or revision of an award, at the confirmation stage. We presume the latter.

So, does Katz, Nannis change any of this? Since all arbitration arises from the UAA, we family law arbitration has the same root. Therefore, we infer that parties to a domestic relations agreement to arbitrate cannot impose a standard of review on the trial court that is different from that expressed in the UAA.

But what of the Appeals Court's own apparent declaration of a "fair and reasonable" standard, that itself exceeds M.G.L., ch. 251's review provisions? And the Probate and Family Court's non-delegate parents patriaie responsibilities? There are so few appellate cases that involve family law arbitration that it may be a very long time before we know. We will operate under the assumption that Reynolds remains good law; and that parens patraie trumps all.

A dedicated family law arbitration statute, of course, could resolve this question, and clarify other aspects of the unique of law vis vis arbitration, to everyone's benefit.

 

Good News and Bad News: Arbitration Just Became a Little Bit More Final

Wednesday, March 16, 2016

Katz, Nannis & Solomon, PC v. Levine

Late last year, we anticipated the decision in this case, and expressed the hope that the SJC would rule that parties may contract for levels of review of arbitration awards that are broader than those expressed in M.G.L., ch. 251, the Massachusetts version of the Uniform Arbitration Act (UAA). We felt, and still believe, that many family law counsel and clients shy away from this private, efficient and effective private dispute resolution methodology, for fear of giving up traditional litigation rights of appeal for errors of law and abuse of discretion. Well, the SJC didn't it.

In Katz, Nannis & Solomon, P.C. v. Levine, an accounting firm partner, Bruce Levine (no relation) was purged from his firm for reasons that the other parties characterized as "for cause"; and such a termination was, under the firm agreement, deemed to be "involuntary", and therefore subject to forfeiture of both share redemption payments and deferred compensation benefits. Also, the partners alleged that Mr. Levine's conduct ran afoul of the non-compete provisions of the agreement, demanding damages. All matters were subject to mandatory binding arbitration, but accompanied by contractual rights of court review that exceeded those of the UAA, if short of full appellate rights.

When Mr. Levine suffered an adverse arbitration award, he pressed the agreed form of review, which his ex-partners challenged, on the basis that the UAA precludes the right to contractual rights of review. The trial judge sustained the challenge, ruling that UAA review provisions are exclusive and preclusive of any additionally negotiated review rights; and Mr. Levine appealed. The SJC took the case on direct appellate review.

The adverse award ripened into a full-fledged disaster for Mr. Levine (nearly $1.75 million plus interest) when the SJC ruled that the UAA trumps contractual efforts to deviate from its extremely narrow grounds of review, as a matter of law. Mr. Levine complained in his reply brief that the expanded right of review was an essential element of the agreement to arbitrate, and its deletion would nullify the entire arbitration clause, thus rendering the award void. The SJC dispatched the claim as too little, too late, since Mr. Levine had not raised the issue either in the court below, or even in his brief-in-chief: harsh result, perhaps, but not a particularly surprising one, on the appellate record described.

While the decision seems consistent with underlying law, and the UAA policy that arbitration awards should be quite nearly final when issued (hence, the good news) we regret the outcome in the family law context (hence, the bad news). As divorce mediators and arbitrators, we are all about expanding people's rights, and not narrowing them. If constricted review discourages an otherwise useful and efficient process for parties engaged in domestic relations agony, why shouldn't they be able to devise their own intermediate rights of review, if it will make both parties more amenable, potentially saving the parties years of costly and frustrating litigation of cases.

Since the SJC decision is one of statutory construction, and not constitutionally based, our legislature could, of course, adopt broader review rights for family law cases exclusively, as has occurred elsewhere. One day, perhaps…

 

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

 

Mandatory Mediation is an Oxymoron that the Appeals Court Gets! (At least when the parties have to pay) Ventrice v. Ventrice

Wednesday, March 25, 2015

Recently, a pair of “transformative” mediators claimed that without mandatory mediation, the pre-destined role of mediators as apostles of self-determination will never be fulfilled. We took the authors to task in the Winter 2015 Issue of the Massachusetts Council on Family Mediations’ Family Mediation Quarterly for many reasons, including this proposition. Putting aside the considerable irony that practitioners who seek to transform relationships, not content to merely settle disputes, think they can do so when people are compelled to pay them to do it, we are pleased to see that the Massachusetts Appeals Court is not similarly deluded.

The recent case Ventrice v. Ventrice addressed the appeal of a father whose divorce judgment forbade either party from filing a subsequent complaint for modification until the parties had first engaged a private pay mediator.” Citing Article 11 of the Massachusetts Declaration of Rights, the appellate court wisely vacated this provision because it chilled the rights of potential litigants “…obtain…justice freely, and without being obliged to purchase it.”

As one former Probate and Family Court judge, and two former long-time litigators in that court, we can certainly understand the trial court’s concern and motivations: we can both picture a very thick red file sitting on the bench, the dread that it promotes in all courtroom attendees, and most importantly, the havoc that such cases wreak on children and families. But, on so many levels, mandatory mediation, especially the private pay variety, is just wrong:

  1. As the Appeals Court cited at footnote 14, Rule 2 of the SJC’s Uniform Rules on Dispute Resolution defines mediation as a “voluntary process”;
  2. Few obdurate litigants will enter mediation in good faith and with the emotional skills to use it productively;
  3. It is unseemly for the courts to force people to patronize a segment of the professional community at the cost of others, however enlightened and useful we think we are (!); and,
  4. It undermines mediators, whose very professional personae include devotion to facilitating self-determination for competent persons who make the choice to seek us out.

While the Appeals Court reversed on state constitutional grounds, its decision was sound for all of these reasons, and, in addition another important error that they did not mention. The trial court’s divorce judgment not only mandated private mediation, but it ordered the parties to pay the mediator equally “…unless otherwise allocated by the mediator.” In other words, the judge not only mandated private mediation, but also private arbitration, since mediators, by definition, wield no decision-making authority whatever, let alone one so fraught as a financial sanction, which fee reallocation most surely is.

We love mediation and arbitration. We have actively advocated to foster broad acceptance of arbitration as an efficient, cost-effective form of family law dispute resolution. But whether mediating or arbitrating, our dispute resolution table cannot stand without its most equal among equal legs: voluntariness.

We are glad that the Appeals Court got that.

--------------------------------------------

1"Reclaiming Mediation’s Future: Getting Over the Intoxication of Expertise, Refocusing on Party Self-Determination", by Robert A. Baruch Bush and Joseph P. Folger; Mediate.com Newsletter, December 3, 2014 (#558).

2Presumably, the court intended that the parties actually mediate, rather than just hire the mediator, as the judgment literally required.

3The court did exclude contempt actions from this order.

 

Random Thoughts While Not Blogging

Monday, January 27, 2014

While on an extended holiday break from blogging, the world most definitely did not stop, with mediators and arbitrators staying in the news.

In New York, an arbitrator decided that Alex Rodriguez was guilty as sin, but 49 games less guilty than originally decreed by the baseball commissioner. Arbitration and arbitrary share six letters but they are not supposed to synonymous. Wonder if he felt pressure not to relieve the Yankees of too much salary burden...

In Jerusalem, surrogates for Prime Minister Benjamin Netanyahu pulled the mediation move of the year. Faced with apparent pressure from Secretary of State John Kerry, the Israeli side moved to “expand the pie” by making the mediator pay! Somehow, it seems, that if only the United States would kick in clemency for Jonathan Pollard, peace with Palestinians would be at hand. Guess that’s what happens when the “mediator” has skin in the game…

In Geneva, mediators struggle to get the antagonists in Syria to look at each other….

Meanwhile, in New Jersey, Governor Chris Christie’s invoked the dreary “mistakes were made”, after his staff shut the GW Bridge as political payback, or more aptly, after they were caught at it. Any idea what those mistakes were and who made them? Almost as meaningless as “I take full responsibility”…

Speaking of poor apologies, in Washington, President Barack Obama actually said that “No one is more upset than me” about the tragi-comic ACA website rollout. Nothing like telling an angry public that, really, you are more a victim than they. It makes us nostalgic for “I feel your pain”. And the grammar…

No bit of random reflection is complete without some reference to NSA metadata. Can you imagine the next U.S. Senate battle over a Supreme Court nominee when the Judiciary Committee has access to all of his or her email, texts, cell phone chatter and url history? Or the 2016 presidential race…

While waiting for that rush of new alimony cases from the Massachusetts appellate courts, one last, belated Happy New Year to you!

 

Honest Abe Does It Again: Words to Practice (And Live) By

Thursday, January 02, 2014

Just when you think you've heard everything about Abraham Lincoln to inspire and admire, along comes another. At the recent 5th Annual ADR Conference (M.C.L.E.), attendees received a handout from Hon. Dennis J. Curran and Emma Kingdon called "Abraham Lincoln and ADR". At the front end of this fascinating little synopsis about Pres. Lincoln's legal career, appeared the following:

"Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser-in fees, expenses, and waste of time. As a peacemaker lawyer has a superior opportunity of being a good man. There will still be business enough."

Abraham Lincoln (1850); Notes for a Law Lecture, in 2 ROY P. BASLER, COLLECTED WORKS OF ABRAHAM LINCLON, 81 (Rutgers Univ. Press 1953).

Every lawyer should read Judge Curran and Ms. Kingdon’s little gem, and every person who participates in mediation, conciliation, arbitration and principled negotiation should, too. They will find it self-affirming, in some cases perhaps self-correcting.

Mostly, the man could sure speak.

 

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.

 

Guest Post: Is Your Divorce Case Going Nowhere in Court? Maybe You Should Consider Family Law Arbitration

Thursday, August 08, 2013

by Karen Covy

If you want to get divorced, you have to go to court, right? The answer is yes …. and no. Only a judge has the power to divorce you. So, yes, if you want to get divorced, at some point you (or in some jurisdictions, just your attorney) have to appear in front of the judge. But, just because you have to end up in court to finalize your divorce, that doesn’t mean you have to start in court, or stay in court the entire time you’re going through your divorce. Today, you have options.

There are many ways you can work through your divorce now. You can use mediation, negotiation, collaborative law or “cooperative” law. All of those are alternative dispute resolution systems that minimize your time in court. What is newer in the world of family law dispute resolution is arbitration.

Arbitration is like a “mini trial.” Typically, two parties to a dispute will appear before an arbitrator and conduct an informal “trial” of their case, usually in the arbitrator’s office. Each side presents witnesses and evidence. The arbitrator presides over the hearing much as a judge would preside over a trial. The arbitrator listens to all of the evidence and rules on any objections the lawyers might have. Then, after the hearing is over, the arbitrator decides the case and enters an award. That award then gets confirmed in court, and the case is resolved.

So, at this point you may be thinking, “if an arbitration is just a mini trial, why bother? Why not just stay in court.” There are lots of reasons.

  1. You (or your lawyers) get to pick the arbitrator. You don’t get to pick your judge. Just like judges, arbitrators are sworn to be fair and impartial. But, since your lawyer is choosing the arbitrator, presumably your lawyer will choose someone who is not only experienced in the law, but may have special experience with the issues that are involved in your case.
  2. Arbitrators are not burdened with overcrowded court dockets. They are not responsible for hundreds of cases. That means they have more time to devote to your case. That also means that you can usually get your case heard in a much shorter time than you could if you appeared before a judge.
  3. Your hearing is private. The only people at your hearing will be you, your spouse, your lawyers, the arbitrators, and any witnesses you choose to have testify. There may or may not be a court reporter but, unless someone appeals from the arbitrator’s award, no transcript of the proceedings gets filed in court. Arbitration thus gives you much more privacy than you could ever have in court.
  4. Arbitration can be less expensive. Yes, you will have to pay an arbitrator to hear the case and make an award. You don’t have to pay for a judge. (At least, you don’t pay judges directly. Rather, your tax dollars pay the judge’s salary.) So, arbitration will cost you money. But, since arbitrations are usually less formal than trials, it takes less time to go through an arbitration than it would to go through a trial in court. There is also less “down time” in an arbitration. Your lawyers don’t have to wait in court while dozens of other cases get called before them. When the lawyers have an appointment with the arbitrator, they are the only ones there. Finally, arbitrators are free to conduct business via telephone and email in a way that judges just can’t do right now. All of that means a more efficient, and less expensive process.
  5. You can use arbitration to resolve a single issue (called “bullet arbitration”) or your entire case. Sometimes, if you just had the answer to just one question, the rest of your case would be easy to resolve. In that case, you can use arbitration to get a quick decision on that one issue, then take the rest of your case back to court.

So, if arbitration is so wonderful, why isn’t everyone doing it? The simple reason is that, traditionally, people haven’t used arbitration to resolve family law cases. Arbitration has been used for hundreds of years to solve other types of cases. But not family cases. And law is nothing if it is not traditional.

At this point, most states (except Kentucky) allow for arbitration in family law cases. But only a few states have specific matrimonial law arbitration statutes. ( Colorado, Connecticut, Indiana, Michigan, New Hampshire, New Mexico and North Carolina have specific statutes for family law arbitration.) If you want to arbitrate in any other state, your lawyer has to rely on general arbitration statutes that may not exactly fit family law cases. That’s a bit of a challenge. And because there aren’t a lot of people doing family law arbitrations yet, many lawyers aren’t comfortable doing them. Finally, even in states that recognize family law arbitration by statute, the court usually maintains the final say over matters involving children: custody, visitation and parenting issues. So, using arbitration to resolve your divorce issues is not without challenges. But, it’s a choice.

If you are interested in arbitrating your case, ask your attorney about it. Maybe arbitration can help you, maybe it can’t. The bottom line is, it is yet one more option you have for resolving your case yourself and staying out of court.

Karen Covy is a lawyer, mediator, educator, and the author of When Hapily Ever After Ends: How to Survive Your Divorce Emotionally, Financially, and Legally. This article is re-posted with permission from Karen Covy’s blog at: http://karencovy.com/is-your-divorce-case-going-nowhere-in-court-maybe-you-should-consider-family-law-arbitration/

 

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.

 



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