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Divorce Mediation Blog

“Non-compete” Orders in Massachusetts Divorce: Yes they can!

Wednesday, May 23, 2012

In recent case of Cesar v. Sundelin, the Massachusetts Appeals Court ruled that a Probate & Family Court judge has the power to order one spouse not to compete with the other spouse after a division of property that includes a business. This is new law here, though it had been addressed by a couple of other jurisdictions earlier.

The argument is: if a judge is going to force one person to buy out the interest of the other in a private business, what is the business owner buying if the other spouse can walk across the street (figuratively or literally), set up shop and compete for the same customers? The counter argument is: if the spouse who is being bought out made a living doing the same or similar work, how can that spouse be prevented from making a living, or without being compensated for the loss of an ability to make one?

This ruling is important for at least three reasons. First, it broadens the powers of Probate & Family Court judges to do something that at least one judge thought he could not do (in Cesar the trial judge had refused to enter a non-compete because he thought he lacked that power – and one suspects that others agreed); and it raises questions about how this should factor in to valuation questions, and with regard to alimony based on the “needs” of the spouse who is restrained from competing. Arguably, this issue is limited to cases in which the spouse shared a business activity, but that makes the alimony question more acute.

Should judges have this breadth of power in divorce cases? The Appeals Court thought so, when it is necessary to protect the integrity of the property division order. We will all see how this plays out, over time.

 

Joint Retention of Financial Experts in Divorce

Wednesday, May 16, 2012

By Heidi Walker, CPA*ABV, ASA

“People, I just want to say, you know, can we all get along?” ~ Rodney King

Hiring a financial expert for a divorce engagement involves many decisions, one of which is determining whether the expert will be separately retained by each party, or whether the parties will jointly retain the expert. Utilizing a joint expert can have its rewards; however, it is not suitable for all cases. The success of using a jointly-retained expert depends on the relationship between the parties; the issues in the case and the attorneys’ strategies for dealing with them; and the skill of the expert to operate in this unique role.

In a divorce matter, generally, a single expert may be engaged by agreement of the parties; appointed by the court; or engaged as part of the collaborative process. We will begin by describing each of these options. Then, we’ll examine the economics of a joint engagement, as well as tips for making such an arrangement a success.

Circumstances of Joint Expert Retention

By Agreement of the Parties

When divorcing parties are involved in litigation, instinct may be for each to hire their own expert. In certain instances, this may be the appropriate course of action. In others, however, the parties may be on good enough terms and the attorneys’ strategies both suitable to jointly retain the expert via a joint engagement letter with the expert. This is usually done in hopes of saving time, fees, and the emotional drain that can result from dueling experts. Choosing this course does not preclude the parties from later hiring their own expert if they are unhappy with the joint expert’s results.

Court-Appointed

A joint expert may be appointed by the court. The parties may request the court to do so, or the court may appoint one on its own. From the court’s perspective, a jointly retained expert can enhance settlement opportunities, as well as avoid the contradictory evidence often submitted by dueling experts. However, some judges may not be in favor of a neutral expert, out of concern that it interferes with the adversarial process. The scope of work may be determined by the court or stipulated by the parties. As outlined in the Family Law Services Handbook, the order or engagement letter typically includes:

  • Specifying the expert’s tasks
  • Stating basic facts (e.g., marriage and separation dates)
  • Defining compensation parameters
  • Identifying financially responsible parties and funding source
  • Addressing discovery protocol
  • Detailing communication and reporting protocols
  • Planning for possible expert withdrawal
  • Clarifying case-specific items and terminology. 

Likely, the most significant downside of a court-appointed expert is that the parties may not be vested in the joint process As such, these engagements can be as contentious (or more so) as if the parties had each hired their own expert. Further, while each party has the opportunity for cross-examination, there is no rebuttal expert to respond if one or both parties take issue with the jointly-retained expert’s conclusions.

Collaborative Process

Use of the collaborative process, whereby a “participation agreement” commits the parties to settle their issues without recourse to litigation, is rising in popularity in family law. This multidisciplinary approach often involves a financial professional, whose role is to gather all of the necessary financial information and synthesize it in such a way that it is useful to educate the parties about their options relating to settlement of their finances. For less complex cases, use of a single financial professional may be appropriate, while more complex cases may require multiple financial professionals, such as a business valuation professional, a Certified Divorce Financial Analyst, a tax professional, a real estate appraiser, a retirement specialist, or others.

In the collaborative process, if agreement cannot be reached, or if one or both parties elect litigation, the professionals on the team may not participate in the ensuing litigation. Each party must retain new counsel and other experts before having recourse in the courts. Thus, much of the effort put into the process must be redone, which can be a significant motivator for settlement, but is a risk not everyone is willing to take.

Does Jointly Retaining a Financial Expert Save Money?

Jointly retaining a financial expert can save time and fees over the traditional dueling expert approach, primarily by avoiding duplicative work, and also potentially by replacing a difficult discovery process with one that is more informal and harmonious. Obtaining information through a formal discovery process where experts have been separately retained can be extremely expensive. When the parties are at such odds that each and every document, question, and follow up question must be obtained via requests for production of documents, interrogatories, and depositions, professional fees can skyrocket. In one case, the in-spouse’s refusal to provide information requested for the business valuation was one factor which led to years of litigation involving several changes in the valuation date (fees), countless stops and starts on the project (fees), and significant time spent with discovery (and more fees). Expenses can potentially be contained with a jointly retained expert, as the parties may be more cooperative for an expert they believe to be genuinely neutral.

Another opportunity to save fees is upon completion of the analysis. The parties may agree that instead of the expert communicating their results via a full-length written report, the results may be expressed with schedules and/or a brief presentation by the expert. As an example, the expert may request the parties and counsel attend a meeting wherein the expert presents her work and requires the parties to provide comments within 10 days. This attempt to make sure everyone understands the expert’s analysis, and the inputs, can be very helpful in settling cases.

However, as much as both parties may be committed to using a single expert up front, one or both may disagree with that expert’s conclusions. Typically the joint engagement agreement will provide that one or both parties may retain their own, separate expert. When this happens, it can obviously wipe out any savings that may have been gained from using one expert.

Further, when the parties, or their attorneys, have substantive disagreements throughout the process and the financial expert is caught in the middle, it can be as expensive as hiring two experts. The expert’s role is to be sure that all parties are treated equally and that both sides are heard during the process. Just because everyone agrees to willingly share information does not mean they will agree on the foundation of that information, or on how much of it should be shared with the expert. We have seen cases where arguments about the correct underlying facts, or the two sides’ interpretation of them, volley back and forth between the attorneys and the parties, each rebutting the facts put forth by the other. In some cases, we have been left wondering if the parties are even talking about the same business! The expert handles this is by doing their own thorough investigation to determine the correct facts, but the more starkly different a picture eac side presents, the more time the expert has to take to determine the “truth”—a job that might be better left in the hands of the trier of fact.

Careful planning of a joint retention can help avoid the case potential pitfalls. With that, we turn to our observations about what has helped make them successful.

Tips for Making Joint Engagements a Success

Using a single expert can be an efficient way to gather facts, assess information, and obtain a financial analysis of the business, which both sides can use to evaluate the financial impact of their legal perspectives before trial. While this is an excellent concept in theory, without careful planning, these engagements can be more difficult to execute successfully. Here are a few tips on how to make joint engagements work.

Lay the ground rules up front

The most important factor for a successful joint engagement is laying the ground rules at the outset. Discovery, communication protocols, fees, timing and deadlines, and report delivery format should all be clarified up front in the engagement agreement to the extent possible to avoid missteps later in the process. It is helpful if the appraiser and both attorneys conference at the outset to iron out the details of the engagement. A clear discovery agreement that is then abided by is critical. Just as we have experienced cases where not being able to get enough information was problematic, there have been others where too much information was the problem.

Communication requires full disclosure

A joint retention involves continuing open communication between the expert and their clients (which may be the attorneys or the parties or the court). This is done with the intention of allowing all of the parties to feel included in the process and that they have “had their say”. Any verbal or written correspondence or documents should be shared with all parties, to address up front any issues the parties have with the information being provided.

A jointly retained expert considers the input of both parties throughout the engagement. They attempt to garner consensus during the process, and document it. There are cases where this works exactly as intended and others where it feels like a firestorm of discovery disputes. Thorough upfront planning, a very clear discovery agreement, and careful navigating on the part of the expert can guide even contentious parties through a joint retention in a relatively civil manner.

Attorneys and experts should be a team

Ideally, attorneys and experts will work as a team to guide the parties to successful completion of a joint engagement, setting clear expectations about how the process works. Some points to remember here are:

  • If contrary legal positions are present, the expert may need to quantify multiple interpretations of the same facts.
  • Keeping relevant facts from an expert is never a good idea, but it is an especially bad idea in joint retention, as it creates suspicion when the facts eventually come out (and they do come out).
  • Experts will ideally obtain consensus regarding their inputs along the way.

If settlement is the end game, attorneys and experts who work as a team have the best chance at achieving that result. Enhance fee collection

The engagement letters of many experts contain clauses for withdrawal for non-payment, or at the very least, a stop-work clause if fees are not up-to-date. In addition, many experts will not deliver the results of their analyses until all fees have been paid. If possible, establish a joint, community account, such as an attorney trust account, as a single payment source. This will increase the likelihood of the expert being paid in a timely manner, and allow the case to move forward as anticipated. It can also remove a potential source of future disagreement among the parties.

Recognize that some cases are not suited to a jointly retained expert

There are some cases that are simply not well-suited to the use of a single expert. As experts, we will recommend against joint retention if it appears from our initial conversations about the case that:

  • Either of the attorneys seems unsupportive of a joint engagement.
  • Excessive conflict between the parties and their attorneys is evident from the outset.
  • One or both parties are representing themselves.

Conclusion

Use of a jointly retained financial expert can be an excellent tool for settling issues in a divorce case. They can save on expert and attorney time and fees, and provide the parties a less contentious environment in which to deal with often complex and difficult financial matters. However, carefully establishing expectations and rules of engagement upfront and then adhering to those throughout the process, as well as managing the parties’ emotions and expectations, are critical aspects of the success of these engagements.

Heidi Walker is a Senior Valuation Analyst at Fannon Valuation Group in Portland, Maine. She focuses on valuation in the context of divorce and shareholder disputes.

Posted with permission of the author.

 

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

 

Bill and Chouteau Levine Participating at the Divorce Mediation Training Program in Boston

Monday, April 09, 2012

Bill Levine will be participating as a faculty member at the Mediation Works Incorporated, Inc.'s Divorce Mediation Training program in Boston from April 20 through April 23, 2012. Chouteau Levine will be lecturing at the same program on April 20th. This annual training program combines substantive law and procedure and mediation skills for a limited number of qualified professional attendees, under the direction of M.W.I.'s own Josh Hoch.

 

Mutually Acceptable Solutions can be Reached through Family Mediation

Wednesday, April 04, 2012

Family decision-making can be very difficult, and sometimes situations get out of hand. When perspective becomes scarce and it is hard to see the forest for the trees, whether it be an elder care matter, a dispute over a will, a divorce, attempting to prevent a divorce or difficult parenting situation, it can be the right decision to bring in mediators or arbitrators.

Family mediation means that a neutral, trained professional will work with the parties involved in the family conflict to discuss all of the issues and to explore the possible options for settlement, and to identify solutions that best meet the needs of all persons involved. Facilitated negotiation is the path to resolution.

Mediation is a voluntary, confidential process in which we help both or all parties to identify and discuss issues of mutual concern. Together we will explore various solutions and develop a settlement that is acceptable to all or both of the parties.

Sometimes parties need mediation followed by arbitration, because resolution by agreement proves elusive. We call that Med/Arb. This is a confidential process in which we help both or all parties to identify and discuss issues that of concern. It is our job to help all parties explore various solutions and decide on a settlement with which all concerned can live. If the mediation does not succeed, we “switch hats” and make a decision for the parties, out-of-court an in a timely and cost-effective way.

 

Divorcing Parties Playing Against Type - Don’t Do It

Wednesday, April 04, 2012

Recently, we spent a Sunday evening at a new Easthampton, MA business: a “free movie” venue called “Popcorn Noir”. This creative venture offers gourmet popcorn, snacks, dinner, hot cider; and intimate seating for 20 or so lucky viewers. Members pay a modest annual fee to have access to this storefront treasure with vintage films.

We watched the Billy Wilder-directed Fred McMurray and Barbara Stanwyck classic “Double Indemnity”, from 1944. A film student introduced the show with the comment that one thing that made this noir piece so effective was that every actor played “against type”. For those of us who grew up with McMurray on “My Three Sons” (most of us) knew exactly what she meant. She also described the coming feature as a tale of three people enmeshed in a spiral of events of mutual destruction, leaving them all dead.

This all got me thinking (after the show) about divorce mediation! Divorce lawyers like to tell prospective clients that criminal lawyers see bad people on their best behavior while family law clients are “good people at their worst”. This cliché is largely geared towards providing cover to the upset spouse for out-of-control feelings and decisions, but there is also truth to this stereotype. Many people react to the crucible of stress, worry and fear of impending divorce in ways that lead them to make quick decisions that yield far-reaching and long-term effects on families, sometimes quite negative. As friends and family urge the spouses to “protect” themselves (and their children) from each other, they are often inclined to accept the most aggressive lawyers and advice, and the most assertive processes that they can find..

Sometimes this advice is absolutely on the mark, and there is no good choice but to lawyer up and get to court. But, too often, this just sets a tone of heightened confrontation, crushing costs and lost years of litigation, when calm reflection and facilitated discussion might serve the family more effectively, leaving people in a place where their ability to cooperate is less damaged and sometimes even enhanced. There is a reason that the Massachusetts Supreme Judicial Court requires lawyers to discuss alternative dispute resolution options with clients before filing suit,. But we suspect that this rule is honored far more in the breach that in its careful and enthusiastic observance, as many lawyers perceive litigation as the “only way” to go.

Good people in crisis should not play against type. Beginning divorce with an arms race when unnecessary consigns the family to a spiral of controversy and financial calamity, when reflection and facilitated negotiation are likely to be less expensive, less antagonistic and more constructive than the alternative. Divorce does not have to be all noir. It can be seen as a transition: to be managed and experienced as an honest, direct and personalized process in which people “play” themselves, and not the mythical “worst behavior” caricature.

Mediation is not for everyone. But, almost everyone should at least consider it – seriously.

 

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 a Business Worth in Divorce When the Owner Plans to Keep It?

Tuesday, March 06, 2012

When dividing assets at divorce, one of the more challenging jobs is how to divide the value of a business that one or both of the parties owns. Usually, the business is the source of the family’s income, and after divorce, it will become the source of alimony and/or child support. Usually, also, the business owner-spouse does not plan to sell the business, at least not for a long while, because it is the best way for this person to generate income and, therefore, support. Often, this business owner doesn’t think that he or she will ever sell it, and may not even realize that the business is a “marital asset.”

Yet, the law defines the business as a piece of property to be factored into property division, so it has to be considered. How, then, do we figure out the value to be assigned? This generally done by use of what are called “experts”, most often accountants with special training in business valuation. In simplest terms, the expert (s) (either one hired by each spouse separately, or often in mediation for example, one jointly hired person) decide (in very simplified terms) to value the company by estimating the kind of income that the company may generate for the business owner in the future and how much another person or entity would pay for that expected income.

Then, historically, valuation experts would reduce the estimate just described by factors known as “discounts”. These were used to account for such factors as the lack of a large number of others prepared or desiring to buy a small company (called “marketability”), or in situations where the business owner does not own a large enough share of the company to control the company him or herself (called “lack of control”) or the belief that the business owner is personally critical to the success of the business (called “key man”). These discounts often reduced the value of the business owner’s property interest by 15 – 30 per cent.

This all began to change in 2007, when the Massachusetts Supreme Judicial Court (SJC) decided a case that involved a man who owned two grocery stores on Martha’s Vineyard, called Bernier v. Bernier. On appeal from a trial decision, the SJC learned that the business owner-husband had no intention of selling the business. Because of this, the court concluded that it was not fair to the wife to reduce the value by factors related to a sale, when a sale was not expected to occur. The SJC believed the real value that was relevant to the case was the value of the expected income to the husband himself in the future (since he was keeping the stores), and the value to a hypothetical buyer.

Many experts called this change in focus a shift from “fair market value” (what a buyer would pay) – the traditional value in divorce cases -- to “fair value” (what the future income is worth to the spouse keeping the business). Because fair value implies that no discounts should apply, the result is usually a higher value and results in the non-owner spouse receiving more of other property to offset this higher business value.

A very recent case, Caveney v. Caveney, supported this view. A trial judge applied discounts to reduce the value of the business owner-wife’s 24.75 per cent interest in a business run by her father. The husband appealed these discounts and convinced the Massachusetts Appeals Court (an intermediate court that hears many more divorce appeals than the SJC) that because “the sale of the business is not imminent” that the discounts were wrong. The Appeals Court reversed the trial judge’s decision. The Caveney Appeals Court actually referred to the use of the “fair value” approach, confirming in the minds of many that this is actually the value premise to be used in all cases in the future where a sale is not contemplated.

This blog entry is a very simplified discussion of these issues, which tend to be very complex and full of individual judgment. In mediation we discuss these concepts and others that are difficult and important. We also encourage clients to have independent counsel to help them understand and know how apply and respond to these issues. People’s sense of “fairness” is certainly affected by the side of the question the person finds him or herself. What do you think?

 

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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