Posted on October 5, 2009 by Eric S. Solotoff

RESPONSE TO ATTACK OF THE MEDIATOR

Today I came across a blog entry by a divorce mediator which was nothing short of an attack on "best lawyers."  It appeared as though the ills of the divorce world were placed at the feet of the best divorce lawyers. Lawyers were castigated for such sins as discovery (obtaining financial documents) and seeking court assistance when you want temporary support or time with the children. He said that any lawyer can get the same result and that hiring a good lawyer sets the client up for a racket that is in the lawyer's best interests, but not the client's.

Unfortunately, this is not the first time that I have seen attacks on lawyers from the mediation community.  There appears to be a turf war.  Either you are mediation friendly, or you are not.    Rather than recognizing that some cases are more amenable to mediation than others, the followers would rather attack the "non believers."  

While I agree that most cases will settle, many cases take a fair amount of discovery and litigation to get there. To believe otherwise is simply naive. 

Further, while mediation is not for everyone, it is a useful tool in many cases, Then again, just as not all attorneys are alike, neither are all mediators.  In fact, I suspect that the author of the blog that I read would agree that not every mediator can get the same result - though he says that any lawyer can. 

In a prior blog from May 2009, I wondered whether the mediator's goal was a fair settlement or just a settlement.  To see another blog post on mediation that I authored, click here.  Are parties, often the woman being protected from the imbalance of power that permeated the marriage?  Are people being told of their rights when they appear at mediation without lawyers?  What efforts are made to ensure full and accurate disclosure?  Are the appropriate appraisals being done at all, and when done, are they being challenged and scrutinized to make sure that they are fair and accurate? 

There is no doubt that mediation and other methods of alternate dispute resolution can be a good thing. That said, I have often seen mediations result in a "settlement", but one where the disadvantaged spouse got a "deal" that was neither fair nor reasonable, if not unconscionable. The problem in these cases is that often, once there is an "agreement", the person that got the great deal refuses to concede anything. Thus, a method meant to avoid litigation can often create litigation.  Many of these deals came from the "best mediators." 

That said, rather than attacking lawyers, mediators should recognize that there is a place for the best attorneys and the best mediators.  I posit that the best and most fair mediated settlements will result from the attorneys and mediators working together rather than attacking each other.  I am sure that we can all agree that a fully informed settlement, where both parties interests are fully protected, is optimum. 

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Posted on May 31, 2009 by Eric S. Solotoff

MEDIATION - IS THE MEDIATOR'S GOAL A FAIR SETTLEMENT OR ANY SETTLEMENT?

Previously I blogged on the issue of mediation and my skepticism of the process under certain circumstances.  This week there was a spirited discussion regarding the issue of mediation on the New Jersey State Bar Association Family Law Section listserve.  As a result, I thought it would be wise to highlight some of the issues again.

To frame the issue, the bigger debate surrounded the practice where a couple goes directly to a divorce mediator or some other trained mediator, without attorneys.  Some of the things that raised concern were as follows:

  1. Some mediators are concerned not whether the mediation is fair, but rather, simply that the parties reached a settlement
  2. Number 1 would be less troubling, except that many mediators are not telling the party receiving an unfair deal that it is unfair
  3. Rather, apparently, for many mediator's, the phrase, "I think you should discuss this issue with a lawyer" is code for the resolution of this issue or this case is unfair.  However, people go to mediators to avoid lawyers and/or there is an undercurrent among mediators that divorce lawyers really are not looking out for the parties' interests.  Moreover, some parties think that if a mediator is not putting a stop to the mediation when something is unfair, that it must be fair.

There was also a concern that the imbalance of power in the marriage that naturally is creeping into the mediation is being ignored.  A perfect example is in a case where alimony, perhaps permanent alimony is a no brainer, yet the wife is willing to waive it in mediation.  Is anyone asking why?  Did the husband vow to never pay alimony?  Was there a threat to "go after custody" if a spouse sought alimony?  Did one spouse say "I spoke to a lawyer who said you weren't entitled to alimony" as a means to deter the other spouse from seeking it?  Was the other spouse given access to money to consult their own attorney?  I once represented a woman in a post-judgment matter whose husband would not give her money for the attorneys she wanted to see, only for mediation and then an attorney he hand selected for her to draft the Agreement.  It was not shocking that the "mediated agreement" included a waiver of alimony and the child going to school where the husband lives, when the child was of school age, despite the fact that the wife was the primary caregiver. 

I have also seen many a  complex matter where one party is pushing for mediation and there hasn't even been the most basic exchange of information at that time, much less formal discovery. I have even seen cases where the party with the documents will not provide them in advance of mediation and will only bring them to mediation and take them with him at the end. The better practice, and the better mediators require, parties to have attorneys involved from the start of the mediation so that both parties are fully informed about the law and the process and so that any imbalance of power can be rectified with an attorney protecting the weaker party.

There is no doubt that mediation and other methods of alternate dispute resolution can be a good thing.  That said, I have often seen mediations result in a "settlement", but one where the disadvantaged spouse got a "deal" that was neither fair nor reasonable, if not unconscionable. The problem in these cases is that often, once there is an "agreement", the person that got the great deal refuses to concede anything. Thus, a method meant to avoid litigation can often create litigation.

 

 

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Posted on April 5, 2009 by Robert A. Epstein

APPELLATE DIVISION AFFIRMS TRIAL COURT'S DENIAL OF WIFE'S MOTION TO SET ASIDE PROPERTY SETTLEMENT AGREEMENT BASED ON FRAUD

The New Jersey Appellate Division has held that an application seeking to set aside a Property Settlement Agreement (PSA) under Rule 4:50-1 of the New Jersey Rules of Court should be granted "sparingly."  It was this very type of application that formed the basis of the Appellate Division's recent opinion in Heald v. Heald, found here.

The parties were married for 28 years and had 4 children before the Final Judgment of Divorce was entered in November 2006.  They had separated in 2005 and, for a significant period of time, negotiated the terms ultimately encompassed in a PSA, executed in April 2006.  Notably, the parties agreed to use the Husband's 2004 income to determine his support obligations.  The PSA also contained language that the parties were knowingly waiving their right to discovery regarding each other's income and assets.

Within the following months after the FJOD was entered, the Wife filed three post-judgment motions seeking a wide variety of relief pertaining to support and the Husband's business bank accounts and income.  It was the third post-judgment motion that formed the basis of the Appellate Division's opinion.  Specifically, the Wife sought in August 2007 to have the trial court, among other things, increase the Husband's alimony obligation to allow her to regain her marital standard of living.  The trial court, however, denied the Wife's request.

The Appellate Division focused on that portion of the Wife's appeal arguing that the trial court erred by failing to find that the Husband misrepresented his income during the negotiations period preceding execution of the PSA and, therefore, in denying her request for a retroactive increase in alimony.  The Wife specifically wanted the PSA set aside based on the Husband's purported misrepresentation as to his income - namely, that he knew, but failed to disclose during negotiations that his 2005 business income was at least $130,000 higher than his 2004 income, which was used to determine his support obligations in the PSA.  The Wife based this assertion in part on the fact that the Husband deliberately filed for an extension on the joint tax returns to hide this information.

The Appellate Division first noted that relief under Rule 4:50-1 to set aside the PSA is to be granted "sparingly" and, when relief is premised upon a claim of misrepresentation, there must exist clear and convincing evidence of such misrepresentation.  The Appellate Division also noted that the trial court's decision could only be overturned on the basis of a "clear abuse of discretion." 

Under that analytical framework, the Appellate Division concluded that there was insufficient evidence to set aside the PSA.  Specifically, the Court held that the record failed to demonstrate that the Husband ever represented his annual business income for 2005 at $500,000 - a number that was far below the true level of income earned.  Rather, the Court found that the $500,000 was nothing more than a level of income proposed by the Wife's attorney to apply to the Husband during settlement negotiations.  Further, the Court concluded that, as negotiations carried into 2006, there was nothing stopping the Wife from seeking information as to the Husband's 2005 income and nothing unusual about the Husband seeking an extension to file the tax returns since he had done so in the past.

The Appellate Division also found that the Wife was aware that the Husband's income fluctuated on a yearly basis; that it was she who wanted to expedite the negotiations process to bring the proceedings to an end; that the Husband had no duty to update his Case Information Statement pursuant to Rule 5:5-2(c) of the Rules of Court because he had not previously filed one from the Date of Complaint to the date the FJOD was entered; and that the PSA made no indication that the parties intended to use the Husband's current or highest year of business income as a starting point to determine support.  Finally, because the parties waived their right to discovery in the PSA as to income and assets, the Husband's failure to disclose his 2005 income, which the Wife did not even request, did not warrant post-judgment discovery.

Notably, while relief pursuant to Rule 4:50-1 is to be "sparingly" granted, this office was recently granted summary judgment for a client seeking to set aside a PSA based on fraud and unconscionability.  A recent post regarding that victory can be found here.
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