You hear people talk all the time these days that mediation and arbitration, or quite frankly, any alternate dispute resolution (ADR) methods are the best things since sliced bread.  They may very well be in the right case – which these days may be most of them given judicial backlogs, and other factors making presenting cases to a court undesirable.  They may not be the panacea that people think they are, especially when you don’t frame what you want the arbitrator to do or how you want them to do it, correctly.  In fact, I have previously blogged that the right to appeal is not automatic unless you contract for it.

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The issue of a less than ideal arbitration agreement coming back to bite a litigant in the behind was exemplified again yesterday in the unreported (non-precedential) Appellate Division case of Little v. Little.  In that case, the parties agreed to arbitrate a Tevis claim seeking damages for alleged spousal abuse and battered woman’s syndrome before a retired judge. Rather than a full blown arbitration agreement, spelling out all of the desired standards, a right of appeal, etc., the agreement to arbitration was only memorialized in an order, which stated in total:

ORDERED, that the matter is hereby dismissed as the parties have agreed to submit to binding arbitration with a retired judge agreed on between the parties, which arbitration shall take place on or before February 15, 2013, the costs of which will be shared equally by the parties.

After the arbitration took place, the arbitrator issued a two-page written arbitration decision that awarded plaintiff $125,000 “for the physical and mental injuries sustained by her during her marriage…” The award did not set forth any findings of fact or conclusions of law.  Thereafter, the plaintiff moved to confirm the award and the defendant moved to vacate the award, both because of the lack of findings of fact and the reliance on a letter produced after the close of discovery.  The cross motion was denied and the arbitration award confirmed, leading to an appeal.

Defendant appealed claiming that  (1) the arbitration award was against public policy and should be vacated because without findings of fact and conclusions of law it cannot be determined if the award was procured by corruption, fraud or other undue means; and (2) the arbitrator’s reliance on the letterproduced after the close of discovery in constituted undue means.  The Appellate Division rejected both of those arguments.

As to the lack of fact finding, the Court specifically noted:

The scope of arbitration and the requirements of an arbitrator are controlled by contract. Minkowitz v. Israeli, 433 N.J. Super. 111, 132-33 (App. Div. 2013). If the arbitration agreement does not require the arbitrator to make specific factual findings or follow particular procedures, the arbitrator is free to make an award in a manner consistent with the Arbitration Act. N.J.S.A. 2A:23B-4. The Arbitration Act only requires the arbitrator to “make a record of an award.” N.J.S.A. 2A:23B-19(a). Moreover, the arbitration award provides that an arbitrator may conduct an arbitration in any manner that the arbitrator considers appropriate, with the goal of disposing of the matter fairly and expeditiously. N.J.S.A. 2A:23B-15(a). Accordingly, we have previously explained:

[W]ithout an agreement to the contrary, the power of the arbitrator is simply to issue an award that resolves a dispute. If they have not agreed in advance, the parties cannot, for example, force an arbitrator to give reasons for an award or to write a decision explaining his or her view of the facts. Neither can they appeal from the award as they could if they had proceeded to litigate their matter in court. Rather, the rights of the parties following issuance of an award, in the absence of an agreement to the contrary, are entirely governed by statute. (internal citation omitted).

As to the reliance on the letter produced after the close of discovery:

Arbitrators are not bound by the rules of evidence, and instead may determine the admissibility, relevance, materiality and weight of any evidence. N.J.S.A. 2A:23B-15(a). Additionally, an arbitrator may permit any discovery that he or she determines to be appropriate, taking into account the goal of making the proceeding fair, expeditious, and cost-effective. N.J.S.A. 2A:23B-17(c).

What is the takeaway here?  If you want the rules of evidence to apply, put that in your arbitration agreement.  If you want findings of fact and conclusions of law, put that in your arbitration agreement.  If you want a right of review greater than the very limited right of review contained in the arbitration statute, put it in your arbitration agreement.  Otherwise, you can be left with very little remedies if you disagree with a decision, and like the litigant in this case, very little ability to determine what the decision was actually based upon.

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Eric SolotoffEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com. Connect with Eric: Twitter_64 Linkedin

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Earlier today, Robert Epstein posted an interesting piece entitled The Psychology of Mediation.  Whether people like it or not, alternative dispute resolution (ADR) is here to stay as the new norm.  Court backlogs are long and trial dates are scarce, even when you want them.  Moreover, the system is set up to have numerous settlement events, from mandatory custody and parenting time mediation, to mandatory Early Settlement Panels (ESP), to mandatory economic mediation (post ESP), to Intensive Settlement Conferences (ISCs), to Intensive Settlement Panels (ISPs), to Blue Ribbon Panels, etc.

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 There are times when clients or other lawyers say that they don’t want to go to mediation because they feel it will be a waste of time because the case has no chance of settling.  In my experience, mediation very rarely is a waste of time.  Here are a few reasons why:

  • This may be the first time you get a settlement proposal from the other side, even if it is off the wall.
  • This may be the first time that you get a real settlement proposal such that even if you cannot settle at that point, you can start the process of moving the case toward settlement
  • You may find out what are real issues and what are fake issues.  In short, you may be able to narrow the issues is dispute.
  • You may find out what is really important to the other side
  • You may find out why things are important to the other side – the psychology of mediation so to speak
  • You may find out the proposed legal basis for the other party’s position for the first time.  If you don’t settle, you can use this as the opportunity to start building your defense.
  • You may find out the alleged factual basis for the other party’s position for the first time and similarly use this to figure out what proofs you need to defeat that position.
  • You can use the mediation to shut down bad positions – either because the other side finally sees that they are going nowhere, and/or the mediator tells them so.  Of course, this can lead to the creation of new theories of the case and new arguments that you will have to rebut.
  • This may be the first time that the other party (or your client too) is hearing a learned, non-biased view of their case.  There are times where I think that they other side is off of the wall and that it is the lawyer, not the client that is the problem.  In those cases, I may want to start mediation sooner rather than later so that the other party hears that there may be problems with the positions that they are taking.  Maybe this leads to that party getting new counsel or maybe it leads to them doing some more research to confirm what they learned from the mediator. 
  • Mediation can demystify the process and put people in a atmosphere where there is productive dialogue, about anything, for the first time in months. 
  • You may learn useful information that was previously undisclosed.
  • You may be able to resolve and get rid of the small issues, even if the major issues remain unresolved.

What is the take away?  Don’t be so quick to dismiss the possible of benefits of mediation, even if you don’t settle. the entire case. 

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Eric SolotoffEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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We have heard over and over that settlement ranks high in the public policy of this state and know from experience how the system is geared toward settlement.  In particular, there is mandatory custody mediation, mandatory Early Settlement Panels (MESP), mandatory economic mediation, Blue Ribbon Settlement Panels, intensive settlement conferences (ISPs or ISCs depending on the county) and the like.  With all of these “mandatory” events, you get the picture. Courts even have the power to send cases to MESP and mediation in post-judgment matters.  In fact, it sometimes seems that you cannot get a “real” trial date, even when you want one or need one.  I say that because often the first, or first several trial dates are not real trial dates, but dates wherein you come to court expected to try to settle.

Resolution Conflict Buttons Show Fighting Or Arbitration Stock PhotoPhoto courtesy of freedigitalphotos.net

And while you eventually will get there, are their times that you want to press for mediation, even before the “mandatory” appointed time?  The answer is yes.  Why, might you ask?  There are times that you just know that if the parties get into mediation sooner than later, the matter can resolve and the parties can move on with their lives.  There are three scenarios, at the least, where the strategic use of mediation can move the matter forward, if not toward moving it to settlement.

The first scenario is where there is no communication or worse yet, the wrong type of communication regarding the case.  In some cases, people are just doing nothing, waiting for the ESP or some other event, for no particular reason.  In other cases, there is an absurd amount of energy spent, or worse yet, unnecessarily wasteful motion practice on minor issues, if you can even call them issues.  Communications back and forth because someone returned to their home to remove some of their personal property; random fights over a $100 bill that has to be paid when there are no other real financial issues; silly parenting skirmishes that are much ado about nothing, etc.  There are cases that if you just got people in a room, or before a mediator, where they can focus on the real issues, an easy case can be put to bed and the parties can move on with their lives.

The next scenario is when you know that opposing counsel is just off the wall, and either does not know what they are doing, they don’t specialize in family law so they aren’t sure of what they are doing, and/or are just taking positions that do not relate to the facts in the case.  In those cases, you just know that when you get before a respected and skilled mediator, who gently, or maybe not so gently, adjusts the expectations, the case can settle.  Remeber, this may be the first time that the client has heard a non-biased, objective view of their position.  We did this recently in a case and although the other attorney wanted to leave – it was his client who for the first time heard that his position had no basis in reality, started to get real and begged to continue the mediation.

The last scenario is the one where the lawyer may be reasonable, but her client is not.  In these cases, the mediator and the unreasonable party’s lawyer, can work together to re-shape the client’s expectations.  This doesn’t always work – sometimes, there is no reaching the unreasonable person.   That said, the process can help reinforce the attorneys advice which could break the ice.

However, what you have to be careful of is that the mediator will get the lay of the land pretty early in the process and see that one party may be more reasonable than the other.  Since it is natural to want to try to effectuate a settlement, maybe report back to the judge that you got the case settled and then get more referrals, that the mediator will try to work on the more malleable party.  That is ok, to a point, as long as it is put into proper perspective, “yes you are paying a little more but this will end the case.”  On the other hand, what you want to avoid is the mediator creating a false “settlement anxiety”  (that I blogged about many times before) in the reasonable party.  That is not fair.  If one party is acting reasonably and the other is not, the reasonable party’s position should not be falsely diminished, simply to get that party to move when the other party wrongly won’t.

The takeaway from this is that the use of mediation can be a useful strategy to move a case forward. At the very least, you open the lines of communication that may have been closed or sidetracked, and/or find out whether it is the opposing party or their counsel, or both, who are being unreasonable.

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Eric SolotoffEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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B.M. – that is before the Minkowitz decision that we previously blogged on (which lead to a second post on arbitration best practices), it was common practice at the start of an arbitration, just like it is common practice before the start of a trial, to take one last crack at trying a case.  Sometimes it even happens after some of the testimony has gone in, again, both at trial and at an arbitration.  As we learned from Minkowitz, that is now verboten unless the parties agree in advance and in writing that the arbitrator can also serve in a mediaiton/settlement role.

Solution Stock PhotoImage courtesy of freedigitalphotos.net.

Yesterday we learned that this applies to cases that were arbitrated before the Minkowitz case was decided.  Specifically, in N.L. v. V.M., an unreported (non-precedential) opinion, that is what occured, even though the court “recognized [sic] that the arbitrator’s ultimate rulings on the merits of the divorce issues do not
appear to have been manifestly lopsided, at least in terms of the parties’ respective litigation positions.”  The Appellate Division found that the wife “during the arbitration was extremely contentious and adversarial” and was “frequently unreasonable.”  In fact, the court noted that

we begin with a general observation that the conduct of the wife during the arbitration was extremely contentious and adversarial. On several occasions, the arbitrator was forced todeal with interruptions, non-responsive witness answers, and to rule on persistent objections.  The wife expressed open antipathy for the husband’s attorney. She was frequently rude, sarcastic, and argumentative during her testimony. For example, on one occasion, she told her husband’s attorney to “clean [his] ears” in response to a question that he posed to her on cross- examination.    In another illustrative instance, the wife referred to opposing counsel on the record as “the biggest jerk in the world” because he had sought her mother’s  testimony. The arbitrator commendably displayed considerable restraint and patience during the proceedings. That calm exercise of control over the proceedings should not be overlooked, in spite of the arbitrator’s two improvident efforts, which we discuss, infra, to resolve certain matters in a manner outside of his assigned role as arbitrator.

The Appellate Division rejected the wife’s claims that the arbitrator was unfair or biased. That said, because the process was corrupted by “well intentioned” attempts to resolve unrelated issues, the whole arbitration (which took 13 days) will have be re-done with a new arbitrator.

Just for context, the arbitration centered on some pretty standard equitable distribution issues and alimony where the husband’s income was a found to average $366,000 and the wife’s income was the equivalent of $24,000 and she had previously earned $60,000.  Again, this seems to be pretty garden variety stuff.

So what was the arbitrator’s big sin causing this reversal.

In one instance, the arbitrator suggested to the  wife that she consider voluntarily dismissing her pending municipal complaints alleging criminal conduct by the husband. In the other instance, the arbitratorplaced an ex parte telephone call to the wife, urging her to allow the children to be with their father on Father’s Day in accordance with the terms of a pendente lite parenting agreement.

The Court noted that there concerns about the wife’s municipal complaints potentially being used to gain leverage in the matrimonial case and the arbitrator had suggested that there were other ways to address those issues.

At the end of the day, the arbitrator, thinking he was acting in everyone’s best interests, strayed from his decision making role and now the parties have to start over.  As they say, no good deed goes unpunished.  Given the report of the wife’s conduct, maybe this is exactly what she wants.

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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices, though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

As noted in yesterday’s post on  Minkowitz v. Israeli, the Appellate Division held that once you serve as a mediator, cannot then serve as an arbitrator, absent prior written consent to the dual role.  But the decision written by Judge Lihotz did more than that.  She seemingly opined upon what should be the “best practices” for binding arbitration, in large measure noting that the trial court was too involved in the process after arbitration was agreed to.

 

Flowchart And 3d Character Shows Process Or Procedure Stock Photo*Image courtesy of FreeDigitalPhotos.net

The decision noted, as follows:

We close with these observations.    Arbitration, particularly binding arbitration, must be purposefully chosen, and the parameters must be designated in a contract between the parties. If binding arbitration is selected as the forum for resolution of disputes, a litigant cannot jump back and forth between the court and the arbitral forum. By its very nature, arbitration does not permit such a hybrid  system.  Further,  arbitration “should be a fast and inexpensive way to achieve final resolution of . . . disputes and not merely a way-station on route to the courthouse,” Borough of E. Rutherford, supra, 213 N.J. at 201 (internal quotation marks and citations omitted). Attempts to return to the court, except to confirm the final arbitration award, are at odds with this objective.

In the matter at bar, the parties’ contract concisely defined matters to be addressed in arbitration, yet from commencement, the Family Part maintained involvement such as scheduling case management and entertaining a motion for a protective order, both of which fall directly within the adjudicatory responsibilities of the arbitrator. N.J.S.A.  2A:23B-17e. Moreover, the parties held a mistaken belief that court intervention was permitted to check the decisions of the arbitrator.   This is untenable. The Act’s provisions are unmistakable: once binding arbitration is chosen and the arbitrator(s) named, the court is no longer involved in reviewing or determining the substantive issues.     The court’s role is circumscribed to confirm a final arbitration award, correct obvious errors, and consider whether the award should be vacated, only when one of the limited bases set forth in N.J.S.A. 2A:23B-23 has occurred.  The piecemeal approach  demonstrated here prolonged the final result and eliminated the main benefit of arbitration, “to provide an effective, expedient, and fair resolution of disputes[.]”    Fawzy, supra,  199 N.J. 470 (citations omitted).

Finally, had the parties actually followed the path of binding arbitration, the need for a PSA would be obviated because an issued arbitration award would be confirmed by court order assuring compliance. No separate agreement memorializing the order is needed. Insistence upon preparation of a PSA appears to result from habit, not necessity.

Lastly, we do not mean to suggest parties who seek to arbitrate disputes should abandon all hope of amicable resolution.   We urge parties to exhaust possible settlement alternatives prior to contracting for arbitration.   If arbitration is accepted, parameters for settlement discussions should be set by the arbitrator.  (Emphasis added.)

I think that this last part of the case will be particularly helpful to the bench and bar.  I have seen judges handle this in a whole host of ways, without any hint of uniformity.  What this doesn’t say is what should happen procedurally with the divorce.  I have had some judges insist that the parties get divorced before going to arbitration, which brings with it a whole host of COBRA and ERISA issues, to name a few.  Other judges, who allowed the parties to proceed to arbitration, actively case managed the arbitration to make sure that it proceeded quickly, even if the parties and arbitrator wanted otherwise.  This is clearly because the case remains on the active docket and thus could look bad from a statistics perpective.  A resolution suggested by others would be to create an “arbitration track” to take these cases out of the normal divorce case statistics. In any event, any guidance to procedural uniformity is a good thing.

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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices, though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

Several years ago, I posted a blog entitled "Some Times You Just Have to Try a Case."  In that post, I discussed that there are some times where a litigant simply refuses to settle making a trial inevitable.  Are there times, however, when a trial might be less costly, quicker and preferable to long, drawn out, and perhaps insufferable negotations.  I have dubbed these mind numbing, perhaps bad faith negotiations, where sometimes you take one step forward and two steps back and sometimes, no issue is ever resolved, and sometimes, you make an offer about alimony and the response is about equitable distribution – death by a thousand paper cuts.  Whether intentional or not, you wonder whether a trial would have just been bettter.

I ponder that after recently concluding a case that, while having one little twist, which we got past several months ago, then endured numerous mediation sessions, numerous Intensive Settlement Conferences at the Courthouse and even more than one scheduled uncontested hearing where even the final changes had final changes, plus new changes.  In fact, I have recently had several cases where it took an inordinate amount of mediation sessions to resolve simple cases.  In one reasonably simple case, the parties went to mediation 6 or 7 times, before attorneys attended and even then, it did not settle despite the outcome being obvious.  In another, after 9 mediation sessions (7 with lawyers present), the case remains unsettled though only small dollars in the big picture remain in dispute. 

In your garden variety case, the inordinately drawn out process only serves to either wear a party out and forces the righteous client to give up to either move on or stop the bleeding of legal fees.  Otherwise, they incur a large legal bill just to get to the place they should have been had the other side acted reasonably (presuming for the second that they have negotiated fairly and reasonably.)

While I understand the desire to avoid trial at all costs for all of the usual reasons – finality, having control of your own destiny as opposed to putting the decision in the hands of a stranger, etc.- if the process comes to a place where all things considered, you cannot do worse if you go to trial, maybe a party should consider pulling the plug on these expensive snails pace and/or bad faith drawn out negotiations,  Perhaps the threat, if it is a real threat and you actually start doing what is necessary to prepare for trial, will stop the nonsense and get the other side to end the case once and for all. 

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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild’s Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

For whatever reason, it is not unusual for a Marital Settlement Agreement and/or Custody Agreement to have a mediation clause in it which requires parties to go to mediation before bringing an issue to the Court by way or motion.  For some issues, like enforcement, one questions the obligation to go to mediation.  Either someone violated the agreement or they didn’t.  Other issues require a more swift decision and mediation could only slow the resolution down, especially for the party who might benefit from the delay.  And while we see these clauses all of the time, I have also seen many judges ignore the clause and adjudicate the dispute. 

This, however, is not what happened in the Decilveo n/k/a Woolf v. Decilveo case decided today by the Appellate Division in an unreported (non-precedential) opinion.  In this case, the parties divorce agreement stated:

In the event that any differences arise out of the interpretation, construction or
operation of this Agreement, the parties further specifically agree as follows:

(a) They shall first attempt in good faith to resolve such differences amicably and directly with each other, retaining the right to seek advice of counsel;

(b) If they are unable to resolve any dispute between themselves or with the assistance of counsel, or through mediation, either side may submit same to a Court of competent jurisdiction for resolution.

Arguably, this provision does not appear to specifically apply to enforcement or modification, two major parts of this litigation but the trial judge interpreted the agreement broadly, forcing the parties to mediation to address their numerous disputes. 

Continue Reading If Your Agreement Has a Mediation Clause In It To Resolve Future Disputes, You Actually Have to Go to Mediation To Resolve Future Disputes

 There is no secret that New Jersey is suffering a significant crisis with respect to judicial vacancies. This year alone has seen a significant number of retirements without replacements being named.  The effect on the family courts, and in particular, the divorce docket, has been catastrophic.   I was at a meeting of family lawyers just recently at which the assignment judge of a county in the southern part of the state was kind enough to come and discuss directly with the bar the situation.  And while I deeply appreciated the fact that he did, and the efforts that the judges are making to accommodate the needs of the public, the fact of the matter is that the situation is untenable throughout the state.  In some counties, the situation is so bad that there are no, I mean no, trials for contested divorce cases.  In others, a case will not reach a judge for final disposition for three years,  In several counties, judges have upwards of 500 cases to handle.  Only a superhuman can give a matter the attention it deserves when having that type of case load.  

The purpose of this blog is not to pass blame, nor to comment of the swirl of political posturing that goes on when this subject comes up. Rather, despite the fact that the vast majority of judges that I know are working late nights and weekends, they simply can’t keep up effectively.  And that means that attorneys and litigants have to find an alternate method to resolve their cases in order to save money and get on with their lives and those of their children. Any good family lawyer will have an honest conversation about the cost ridden road to the Courthouse.  Certainly, there are times that judicial intervention is necessary and as lawyers, we are prepared to take a case to the judge. However, alternate dispute resolution is an important piece of the puzzle.

There are several effective methods of alternative dispute resolution that must be considered by litigants.  Some of these are woven into the court system.  Some are complimentary to the system. Before filing for divorce, talk with your lawyer to determine whether mediation, or arbitration is a viable option for your situation.  

Mediation can occur any time during the process, and can happen with or without attorneys. Many times litigants will agree to go to a mediator to resolve their differences and then the mediator will prepare a memorandum of the agreement that the parties have reviewed by their respective counsel.  Sometimes, someone may be uncomfortable going through mediation without legal counsel.  In that case, going with a lawyer can be a cost and time effective method to settle the case. When you go with a lawyer, you can make sure that your rights are protected, and you do not agree to anything without having the opportunity to discuss the ramifications.

Continue Reading Another day, Another Judge lost

Recently, I was at a mediation where the mediator, when telling us his assessment of my client’s case, said that he was creating "settlement anxiety."  I had never heard this term but what I believe was meant was that the mediator wanted the client to have "anxiety" about his/her position in order to be more likely to make compromises and settle.  If the goal is getting a settlement at all costs, I guess it makes sense – but is it fair?

In most cases, there is a "realm of reasonableness" or a range in which any settlement would be essentially fair.   Perhaps, a fair alimony figure could be between $100,000 per year and $125,000 per year.  A fair resolution could be either of those numbers and anything in the middle.  In most cases, people, with all relevant facts and acting reasonably, negotiate within the realm of reasonableness, but at either end depending on which side of the case they are on.  In that case, a mediator trying to create "settlement anxiety" will try to express the flaws in either case to get the parties to meet somewhere in the middle to achieve a result that is fair.

But what about cases where one party is negotiating within the realm of reasonableness and the other is not?  Put another way, what about cases where one party has the law and the facts pretty much on their side as to most issues and the other side is taking a position that is absurd?  In this case, should the mediator be trying to create similar "settlement anxiety" in both parties?  Add another level – what if the mediator knows that the unreasonable party will never settle the matter in a reasonable fashion?  Should the mediator pressure/create the same amount of "anxiety" in the more reasonable party just to achieve a settlement even though everyone knows it is unfair?  Should the result be settlement at all costs?  Does this type of pressure on the righteous party just to get a deal done artificially undermine a party’s relationship with her counsel and experts, if just for settlement purposes, they are told that their case is weak when it is not? 

In my humble opinion, pointing out the legitimate limitations in someones case in order to help create a settlement is fair and appropriate.  On the other hand, creating artificial anxiety just to get a settlement all all costs because one party is acting unreasonably or negotiating in bad faith is not.  The system should be fair and equitable and the parties are entitled to justice.  It is neither fair nor justice to lessen a party’s confidence in their case, artificially, just because the other side will never settle in a fair and reasonable manner.  That does not mean a party cannot give more ore receive less just to get a case done and move on with their life.  That is their choice.  On the other hand, they should not be manipulated just because the other side refuses to be reasonable.  And as I have said before, sometimes you just have to try a case.

Mark Ashton, a partner in our Exton, Pennsylvania office, and a contributor the firm’s Pennsylvania Family Law blog, wrote an excellent post on that blog entitled "A Divorce Negotiation Primer".

There are several points I would like to highlight:

  • negotiations are confidential and cannot be introduced in court, except for very limited circumstances, but not as to the ultimate issue that is the subject of the negotiations.
  • negotiation is intended to narrow issues
  • at the time of trial, no one is bound by the positions taken during negotiations
  • a party who negotiates backwards (for example making a demand, then increasing the demand), risks losing credibility in the negotiations and also causes their attorney to lose credibility.
  • Put all issues on the table as early as possible so as not to spring new issues when settlement appears near and/or give a party false hope of settlement when the parties are not really all that close.

As usual, Mark’s advice is good advice.