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Divorce Mediation Blog

Beware Facts v. Law: Goddard v. Goucher, a Cautionary Tale

Wednesday, April 27, 2016

The Massachusetts Appeals Court recently upheld a judgment of the Superior Court, in which the trial judge adopted the parties’ statement of uncontested facts, but rejected their agreed subsidiary conclusion drawn therefrom. In Goddard v. Boucher, 89 Mass. App. Ct. 41 (2016), the trial judge applied the stipulated events surrounding a draft purchase and sales agreement, but ruled that no enforceable contract had arisen, despite the parties’ contrary agreement.

A piece in the April 18, 2016 issue of Massachusetts Lawyers Weekly (p.38) highlighted the case, catching our eye. We are grateful to the authors, Vincent J. Pisegna and Anthony J. Cichello, because we might not otherwise have noticed this important case, since the context falls outside our usual family law bailiwick. Yet, the Goddard holding applies, no doubt, to all trial proceedings, including family law matters in the Probate and Family Court; and it provides a bright caution light for all litigating counsel. In our service as special master and arbitrator, it is pertinent to our practice, too.

As the Goucher court pointed out, fact stipulations are both “common” and “useful”, Id., at 45, and they will be honored by the trial judge unless “improvident or not conducive to justice.” Id. However, “…the court cannot be controlled by agreement of counsel on a subsidiary question of law.” Id. (Our italics.) In other words, the parties can agree to facts but should not expect the court to be bound by the legal conclusions of that they may draw therefrom.

In divorce, modification, contempt and other Probate and Family Court matters, the court encourages stipulations of uncontested fact. Pre-trial and trial orders generally require them. But how many times have we all entered into, or seen, stipulations that mix facts and law this way.

Some common examples of fact-based legal conclusions:

    -- The parties agree that an equal division of the marital estate is equitable.
    -- Neither party engaged in conduct that is relevant to the distribution of property.
    -- The parties have lived a [upper] [lower] [middle] class lifestyle.
    -- The parties have equal opportunities for future [assets] [income].

Woe to the trial counsel who so stipulates and then watches the opposing party put in facts that belie one of those subsidiary conclusions. Under Goucher, the court may conclude otherwise – prompted or not by the opposing party – to the detriment of the party who made strategic trial decisions in reliance on the stipulation as a whole.

Similarly, the parties may choose to put mixed fact and law statements into separation agreements. Under Goucher, some unhappy litigant in an enforcement or modification dispute may find that the court is not bound by agreed legal conclusions, such as:

    -- The termination of [alimony] [child support] [allocated support] shall be deemed a substantial and material change of circumstances permitting modification of[child support] [alimony] [expense sharing provisions].
    -- A delay in performance shall be deemed a material breach that entitles the other party to statutory interest and counsel fees.

-- A [particular parental decision] shall be deemed to be [consistent with] [contrary to] the best interests of the child.

-- A parent’s move to a location of greater than [20 miles] [20 minutes] from the [other parent’s home] [child’s school] shall entitle the other parent to a modification of the agreed parenting plan.

Best practice urges that we all re-examine our drafting practices, whether in litigation or in agreement drafting, in light of this challenging ruling.

 

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 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.

 

Private Case Management: What and Why?

Wednesday, January 23, 2013

Sometimes, people do not see mediation as an option for their cases for very good reasons; yet the public trial system does not meet their needs either. This can be due to time delays in the system, to the public-ness of the forum, to the subject area complexity of the matter to be tried, or other reasons. We have found in our practice that in these circumstances people are looking for an alternative way to manage cases outside of court, to the point of settlement or trial.

This means that they construct a process that is parallel to the courts, for the organized and efficient flow of a case to conclusion, with a professional who understands the legal substance, the subject matter content, the way court processes work and in whom the parties have mutual confidence. This person, who may be called a master or an arbitrator, holds initial conferences with the lawyers to lay out a road map for information gathering called discovery, for the creation of interim orders such as alimony, child support and custody. He or she sets up settlement conferences; and if necessary, tries the case as a judge would, except in a private setting and at the time and place determined by the parties.

Many clients and lawyers find this form of alternative dispute resolution to be effective and efficient.

 

Mediation or Arbitration?

Wednesday, April 11, 2012

What is the difference between arbitration and mediation? Many people don’t know. While mediation and arbitration are both referred to as “Alternative Dispute Resolution” processes, they are very different from each other. The following may assist you in deciding which conflict resolution method is best for your situation.

Mediation – all parties attend a meeting or meetings with an impartial third party who is the mediator. The mediator assists those in conflict to identify the issues and explore various options to settle the dispute. The mediator does not render a decision or force any participant to accept a settlement. Whether the case “settles” or not is up to the parties, not the mediator.

In Arbitration, the parties present their case to an arbitrator or an arbitration panel. Evidence is presented although it is often less formally than in a courtroom setting. The arbitrator’s role is to determine the facts, and apply the law to render a decision. The arbitrator will decide the outcome. Arbitrations can be “binding” so the parties can turn the award into a court judgment by a process called “confirmation”; or “non-binding”, meaning either party can disregard the opinion. People use the latter, at times, to obtain a reasoned result that may then bring the parties still closer to settlement.

Both mediation and arbitration are effective and useful dispute resolution methods. People who wish to use alternative forms of dispute resolution need to decide which method is best suited to their needs.

When the parties have an existing relationship that may continue after the dispute is resolved, then mediation is a very valuable tool. Since mediation allows the parties to control both the process and outcome, taking into account the relationship needs and other non-monetary issues are possible. Arbitration is private, confidential and efficient and it may “clear the decks” of a dispute that interferes with reasonable interpersonal functioning, but it is not built on enhanced communications as with a successful mediation.

In mediation, individuals can ask questions of the other side, and its experts or professionals to seek a better understanding of the issues and positions. Arbitration, by contrast, is geared towards the Arbitrator understanding and deciding the issue based on the relevant facts as presented by the parties. It involves single hearing where all of the evidence is presented for consideration. The end result is based entirely upon the arbitrator’s understanding of the events that occurred and his interpretation of applicable law. Source: Mediate.com

 

What is Arb-Med?

Wednesday, March 28, 2012

We have discussed arbitration, mediation and the variant, “med/arb”, in previous blog posts. Med/arb is a process in which an impartial party attempts to facilitate negotiations that will hopefully lead to a resolution of disputes between or among them. If the negotiation fails, then the mediator switches “hats” and makes a decision for the parties as an arbitrator, to which the parties are generally bound. Recall that one of the perceived problems with med/arb, is that people worry that information that comes to a mediator in a confidential process that encourages candor and positional risk-taking, may result in an arbitrated result based on information that may not otherwise have come before the arbitrator, had not he/she been privy to the mediation first.

Arb/med solves this problem. First, the disputing parties offer evidence (information) to the neutral acting as arbitrator at whatever level of formality that the parties themselves have agreed to use. The arbitrator makes a decision, but does not disclose it to the parties at this point, and hopefully never will, because the arbitrator puts that arbitration “award” into his/her “pocket” and then changes hats, this time to that of a mediator. He/she then works with the parties in an effort to facilitate agreement between them. The mediator has not been at all influenced by relaxed disclosures before the decision is written, and the award will not change by what occurs in the later mediation.

If the parties then settle their matter, the arbitration decision has no legal significance, and the parties will never know the result, unless they agree for reasons other than legal impact, they agree to have the arbitrator-turned-mediator disclose it. At Levine Dispute Resolution Center LLC, we see this hybrid process having great merit in those cases where the parties either want or need to know that their dispute will end expeditiously, privately and cost-efficiently, even if they cannot settle it themselves; but they are unwilling to do that until that have a good faith and sincere effort to maintain control over their own controversy by making the full effort of negotiated settlement, first.

 

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?

 

What is Arb/Med?

Wednesday, February 22, 2012

Mediation is the facilitated negotiation of agreements between parties to a dispute. In divorce, for example, a mediator sits with the spouses, or the spouses and their lawyers, and works through the issues that are necessary to “settle” the case, and lead to a written and signed agreement. In a will contest or a damages case, the mediator may help the parties come to agreement on a “number” to be paid by one party to another. The parties themselves are the final decision-makers. The lawyers advise. The mediator supplies the environment in which the parties have an enhanced opportunity to speak, listen directly to each other; and the mediator intervenes as appropriate to inquire, to support, to inform, to provide focus and to generate ideas.

Arbitration, by contrast, is a process that is used when the parties cannot reach agreement themselves. They ask the arbitrator to make the decision for them after a “hearing” at which the parties and/or their lawyers give the arbitrator information that is generally called “evidence”. This includes the oral or written statements of witnesses by formal or informal means, and relevant documents. The arbitrator then writes and issues what is known as an “award”. The award is then usually brought to court for confirmation and a concluding court order, generally called a “judgment” or a “decree”.

Both mediation and arbitration are out-of-court processes that Levine Dispute Resolution Center LLC (LDRC) provides.

So, what is “med/arb”? It is a solution that people choose when they really want to try to achieve a negotiated settlement, but are determined to obtain finality in a timely and efficient way, even if their facilitated negotiated does not result in an agreement. People agree at the beginning that the same person will work as a mediator first to attempt to resolve matters by agreement, but if it fails, the mediator will “change hats”, and make a decision. Sometimes, the mediator turned arbitrator simply makes a decision with the information gained in preparation for and during the mediation phase; and at other times, after a follow up hearing.

Two common examples that are similar to this are called “parent coordination” and “discovery master” proceedings. In the former, the PC’s job is to try to stimulate agreement, but will make an ultimate decision, subject to court review, if the disputing parents cannot agree. In the latter, the master tries to get lawyers to settle on how information will be exchanged in litigation, but makes a “recommendation” for a solution if they do not ultimately agree. Then a judge enters an “order” if he or she agrees with the master’s recommendation. Med/arb is broader and is intended to be final (see our earlier blog post about arbitration of child custody and child support matters regarding some limitations.) It can apply to any kind of dispute, large or small. A judge cannot order it without the parties’ consent. It can be quite efficient, though some people worry about the arbitrator’s judgment being swayed by what he or she heard from the parties during the mediation phase, from information that was given less formally and maybe less reliably in the mediation stage than might be required in arbitration. The parties need to consider this and plan their rules and process to provide the protections that they feel they need. Remember, the parties make the rules in these private, consensual forms of dispute resolution.

An interesting variant of med/arb is called “arb/med”. We will talk about this in a subsequent blog post.

 



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