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 18, 2009 by Eric S. Solotoff

1-2-3-4 PRESSURE - THE END OF THE COURT YEAR IS COMING

The end of the Court year in  New Jersey in June 30th.  With that will come pressure, perhaps unnatural pressure, but pressure nontheless to resolve cases. 

While the fact that there are judicial shortages in many counties may provide relief, I suspect that it will do little to quell this rite of Spring.

As the legal system is very statistically driven, a court's performance is often measured in how many cases they clear, and more particularly, whether there is backlog (i.e. is the case too old for the case type that it is).  My undertanding is that a divorce case in in back log when it is over 1 year old. 

One tool that Court's use to clear more cases this time of year is to hold "blitz weeks."  During a blitz week, the oldest cases in a county are scheduled for trial and all of the family part judges clear their calendars to allegedly try cases during these weeks.  Whether or not cases actually get tried during blitz week is another story.  However, the threat of trial, along with the court's active assistance in trying to settle cases often clears many cases from the docket.

Also, in the cases that are naturally scheduled for trial during this time of year, adjournments become more difficult.  Regularly, multiple trials are scheduled for a judge for the same day.  The reason for this is that most cases settle or get adjourned so if only one case were scheduled, a judge could have open court time.  Often you will learn where you are on the list in terms of which is the oldest case and can get a sense as to whether the trial date is a real one.  In fact, usually the first and second trial date are not "real" dates, but rather dates when a court will try to get you to settle. 

That said, at this time of year, if you want to try to adjourn these dates, it becomes more difficult, with the hope that you will settle.  There is an old joke that goes, what is the easiest way to get an adjournment, tell the court you are ready for trial.  In reality, it works in the reverse.  That is, when you seek an adjourment of a trial date, courts often deny this expecting that it will help force a settlement. 

In my practice, if I appear for a trial date, I am prepared for trial.  I learned early on that the best way to be prepared to settle a case it to be prepared to try a case.  That way you are negotiating from a position of strength and very often, the other side really isn't prepared for trial  - making favorable settlement terms more likely.

In any event, if your case is getting close to a year old, expect pressure from the Court to get it done before June 30th.

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Posted on March 18, 2009 by Robert A. Epstein

FATHER ENTITLED TO NOTICE FROM MOTHER REGARDING EXPENSES TO BE INCURRED FOR CHILD BEFORE BEING COMPELLED TO CONTRIBUTE

Imagine that you and your spouse recently finalized your divorce.  There were children born of the marriage who go to summer camp, participate in extracurricular activities, etc.  The question arises, which parent pays for these activities?  How about if you and your ex-spouse entered into a Property Settlement Agreement that specifically addresses the issue of payment, but you are unaware that the kids have already been enrolled in camp or activities and now you are just stuck with a bill to pay.  Are you still obligated to pay if you had no notice before the children were signed up and the expenses incurred?

These issues formed the basis of a new and interesting unreported opinion from the Appellate Division entitled Zenn v. Zenn, found here.  In the case, the father expressed a specific concern to the trial court that he wanted to have input into expenses incurred on behalf of the parties' child before being compelled to contribute payment.  Specifically at issue was the child's attendance at summer camp and enrollment in extracurricular activities (ultimately, violin lessons).  Heeding the father's concern, the Court directed that both parties would be consulted prior to any expenses being incurred on behalf of the child.  Language to that effect regarding camp and extracurricular activities was thereafter drafted into the parties' Property Settlement Agreement.  Notably, the father had agreed to pay for summer camp in 2004, but that there would be no such obligation unless the parties discussed future summer camp attendance. 

The mother subsequently filed a motion to compel the father to reimburse her for 50% of the child's summer camp expenses for 2005-2007, as well as violin lessons.  The mother argued that the child attended the same camp as in 2004 and that she reached out to the father for consultation on both camp and music lessons, but allegedly received no response.  The father filed a cross-motion, seeking to have the court direct the mother to comply with the notice provisions in the PSA and to be held in violation of litigant's rights for failing to previously comply in this regard.  The father specifically certified that the mother failed to consult with him on these issues, providing proof of several emails that he wrote to her to show his sufficient participation in the child's life. 

The trial court, however, found unconvincing the father's argument that he wanted the child to attend a camp with a greater Jewish affiliation since the child had already been going to her prior camp for several years.  The court also required the father to pay 50% of the violin expenses even though the mother provided little proof of full payment made by her. 

On the father's appeal, the Appellate Division held that the trial court erred by disregarding the PSA language and compelling the father to contribute to the camp and violin lesson expenses without having received prior notice from the mother.  In so holding, the Appellate Division distinguished the case from that of Gotlib v. Gotlib, where the Appellate Division last year affirmed a trial court order requiring a father to reimburse the mother for 50% of the children's unreimbursed medical expenses pursuant to a PSA provision requiring such payment.  The mother there similarly failed to consult with the father and seek his input on the need for medical care despite a PSA requirement to that effect.  A prior blog entry on Gotlib can be found here.

The Appellate Division highlighted the fact that, by contrast to the situation in Gotlib, where the mother had attempted to collect the unreimbursed medical expenses from the father through numerous letters that he ultimately ignored, here the mother provided no evidence of having given the father written notice of any kind prior to incurring the expenses at issue.  Even more interesting was the Appellate Division's conclusion that, as opposed to payments towards unreimbursed medical expenses - deemed an "essential" benefit to the children - summer camp and music lessons were considered "highly discretionary 'benefits'" that did not definitively fall within the child's independent right of support from the parties as the natural parents.  Essentially, the Appellate Division concluded that the father had a right to rely on the bargained-for terms of the PSA regarding notice.  It reversed and remanded for further proceedings.

EDITOR'S NOTE: One must remember that this case is not reported and thus, not precedential.  In my opinion, the attempt to distinguish Gotlib is strained and intellectually inconsistent.  In addition, the child attended the same camp that was previously attended.  The trial judge seemed incredulous that he did not agree to the return to the same camp. 

There is a reported case called Finger v. Zenn and perhaps the father is the same person.  In that case, despite the fact the he was a dentist who went to a private college, he wanted to limit his responsibility for his children's college to a state university. He was unsuccessful in that case,

That aside, there was a dispute in this case whether there was notice and mo rover, the agreement called for consent to not unreasonably be withheld.  Seemingly the trial court found the defendant to be unreasonable.   ERIC SOLOTOFF
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Posted on January 6, 2009 by Eric S. Solotoff

SETTLEMENT - WHO MAKES THE DECISION?

I was supposed to start a trial yesterday,but, as often happens, with the judge's assistance, settlement negotiations began.  In fact, in reality, the case probably settled about 3 times yesterday.  However, each time we tried to wrap it up, the wife changed the terms, seeking more and more.  My client, who believed that that he would probably do better at trial, made a business decision to agree to the changes, in consideration for the costs of trial, risks of loss, etc.  That was his call as we were ready  to start the trial and were thoroughly prepared.

On the other hand, on top of changing her terms over and over again, the wife became abusive to her attorney who was trying to counsel her that the terms of the proposed deal(s) were probably far better than she would do at trial.  On top of that, she had major exposure to pay the husband's legal fees based on her conduct during the pendency of the matter (multiple violation of court orders and discovery abuses). 

That gets me to the point of this post.  Opposing counsel was in an impossible position.  He knew that the deal was too good for his client but could not force her to settle.  She is essentially forcing or demanding a trial, which counsel believes is not in her best interests.  His problem became compounded when she became abusive.

At the end of the day, the decision to settle is hers.  The refusal to settle may cost her tens of thousands of dollars.  The attorney fulfilled his obligation and told her.  It may ultimately be an expensive lesson learned.

 

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Posted on August 6, 2008 by Eric S. Solotoff

SOME TIMES YOU JUST HAVE TO TRY A CASE

Several months ago, I posted a blog entry entitled "All Cases Have a Life of Their Own"  To view that entry click here.  The premise was that while most cases settle, they usually will not settle until both parties are ready, emotionally and otherwise, to move on.  That may be the case even if a party's best case resolution is on the table from the outset.  If they are not ready to settle at that time, they will not.

In a more rare occasion, a party is never ready emotionally to settle and a case just has to get tried.  That is unfortunately the case in a matter that I have that is going to trial next week.  Because of the other party's mind set, my adversary has for many months told me that the case would be tried.  He did not tell me this as a threat or to get leverage - just as a fact.  In fact, a settlement proposal we made has been pending for about a year without a response.  In addition, no bona fide efforts were made by the other side to settle at either the Early Settlement Panel, mandatory economic mediation or the Intensive Settlement Conference.  During the party's recent deposition, he said that "it was too late" to settle, once my client hired an attorney. 

Obviously, this is no consolation to my client who has been eager to try to resolve this matter from the start.   Hopefully, the remedy will be a generous award of counsel fees at the end of the trial to compensate my client for having to endure the husband's conduct which has been nothing short of unreasonable, if not bad faith.

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Posted on June 2, 2008 by Eric S. Solotoff

THE MCGREEVEY BATTLE ROYALE

I have eagerly awaited the news accounts each day of the ongoing saga of the former first family of the State of New Jersey. 

While by all accounts, there is some exceptional lawyering going on, one cannot help to think that this is a case that should have been settled or that one or more of the parties is using the trial to settle personal vendettas. 

Thankfully for the parties' child, they settled custody and parenting issues.  However, as the judge admonished at points in the case, their daughter is going to be able to read all about her parents' divorce by just typing hers and their names into Google.  And for what?

 While their marital lifestyle was perhaps unusual from the common folk, in both financial and other ways, at the end of the day, this was a short marriage. The testimony from both as reported suggests that there was no savings and few assets.  The disputes as to alimony seem absurd because even if there was a viable claim, how much could it have been for.  The legal and experts fees had to have exceeded the claim. 

Again, I don't know all of the facts and only know what I read.  However, I always tell my clients that you don't want to spend $10 in legal fees to get $5 back.  I wonder at the end of the day whether the battling McGreeveys will have done just that.  If so, that is good for no one - even the lawyers.  Moreover, I hope that the trial was not a vehicle for either to get the last of their 15 minutes of fame while at the same time, preventing parties with real issues from getting their day in court.

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Posted on April 29, 2008 by Eric S. Solotoff

CAN YOU JUST GIVE ME A NUMBER?!?

Previously I blogged about the fact that cases have a life of their own and will only settle when both parties are ready.  As I was trying to settle a case today that is scheduled to start trial in Morris County next week, I was reminded of a related issue.

In this case, we have had a hard time getting the other side to negotiate.  They have taken a position that we don't think is reasonable nor supported by the facts or the law.  That said, we have made proposals to try to resolve the case.  In fact, at each time we have been required to negotiate (at the Early Settlement Panel, mandatory economic mediation (several sessions) and at an Intensive Settlement Conference), we have made proposals.  In some ways, it was against my normal practice to not bid against myself, but the client wanted to at least try to stir some movement. 

At each point, rather than provide a counter proposal, the other side has tried to wow us with, to put it nicely, "fuzzy math" in order to justify why they are right and we are wrong.  They have never, however, moved off of their proposal on support in any significant way. 

I finally had to tell the opposing counsel to just give me a number without the explanation or argument because I wasn't going to buy their theory, ever, and the theory didn't make a difference if the number was acceptable.

In fact, this is not unusual when trying to settle matters.  That is, sometimes the theories and explanations will bog things down.  The bottom line is that if  the parties agree on the number or a certain resolution of a non-financial issue, in many instances, it matters not at all how or why you got to that number.  In fact, the explanation may just start the argument again. 

Sometimes, it is more important to just give a number than explain how you got there.  If the number is fair and within the realm of reason, and the parties can live with it, it is sometimes better to be settled then win the debate which may only prove more costly.

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Posted on March 4, 2008 by Eric S. Solotoff

All Cases Have a Life of Their Own

Inevitably, at every consultation I have, a prospective client asks me two questions, near and dear to them, which seem like easy questions - or so they thought.  The questions are (1) how long with this take and (2) how much will it cost.

I am certain that the answer, "it depends" is seldom satisfying.  In fact, several years ago, the Court instituted what is called Best Practices in family cases, partially in response to these two issues. 

As to the first question, the easy answer is that pursuant to Best Practices, the Court wants each case resolved within 365 days.  That, however, is not the end of the story.  Many factors go in to how long a case with take.  In some cases, people actually settle before a Complaint for Divorce is even filed and the parties can be divorced in a few weeks.  However, if a trial is actually required, 365 days is unlikely, especially in counties that lack judicial resources. 

In other cases, a party can make their best offer, they can even offer the other side's best case scenario on day one, and the case wont settle for weeks or months.  Why is that.?  Because all cases have a life of their own.  While it is easy for the lawyer to tell our clients to treat the financial issues as a business decision, the reality is that client's often find that to be easier said than done.  Rather, because this is a dissolution of a marriage for some, the breaking apart of a family for others, the death of hopes and dreams for yet others, or worse, it is difficult to remove the emotion from the process.  Why doesn't someone take a great deal on day one - they are often just not ready emotionally to move on.  While the system creates deadlines and there are legitimate means that one can use to try to move the matter forward, sometimes, you just have to wait a little for the emotions to subside.

In other cases, you may not settle quickly because you just don't have enough information.  In those cases, you may not know whether it is a great deal or not.  Some cases will settle quicker than others if both parties act reasonably, try to put aside (if not forget) the emotions, treat each other with respect, and more importantly, want to settle (i.e. be willing to make compromises).Of course, the statistics show that 99% of the cases settle.  Moreover, it is a rare day when a client doesn't say to me that they want to settle amicably.  More often than not, at least at first, amicably is measured on their terms only, without regard at that time for the concept of what might be fair and equitable to the other party   An often heard axiom is that you know a settlement is a fair one if both people walk away a little unhappy. 

Other factors that can delay a case is a party's refusal to cooperate with discovery or Court Orders.  Sometime, opposing counsel is a factor in delaying the case, either because he or she is not responsive, or perhaps for some other improper motive.

For the same reason that cases can take longer than others, they can also cost more than others.  I have been involved in cases with parties having substantial income(s) and assets which have settled quickly and inexpensively.  How does that happen - the parties acted in good faith and were motivated to settle.  I have been involved in other cases where the parties incomes were modest, yet despite all possible efforts to convey reasonableness, they insisted on behaving badly and/or litigating such that the legal fees were quite large. 

The bottom line is that the length of the case and cost of the case are often dependent upon the conduct, emotions and reasonableness of the parties. 

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