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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arbitration agreement coming back to bite a litigant in the behind was exemplified again yesterday in the unreported (non-precedential) Appellate Division case of Little v. Little.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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As a lover of all things Coldplay, I was sad to hear that lead singer Chris Martin and his wife of more than 10 years, Gwyneth Paltrow, were divorcing. Gwyneth Paltrow announced the separation on her website Goop.com and used the term “conscious uncoupling” to describe their approach to divorce.  Although the term had been originally coined by marriage and family therapist, Katherine Woodward Thomas, as with anything else endorsed by celebrities, the phrase went viral after her post.  It was of particular interest to me personally given my chosen profession as a divorce lawyer.

As professionals, especially ones whose practice is client-centric, we are always striving for better ways to do our jobs.  In my case, that means getting clients their desired result in the most effective and streamlined way possible. After practicing for several years, experience has shown me time and time again, that people going through divorce are most satisfied with the process when they feel they have control over it (i.e., are “conscious[ly] uncoupling”) and can proceed with a form of alternative dispute resolution (such as mediation) rather than traditional, costly, protracted litigation.

Even as American culture has become more progressive and accepting, divorce is still considered taboo and is almost always surrounded by extreme negativity and hostility.  Even if the couple themselves wants to proceed amicably, they are unfortunately often allowing others in their life (parents, siblings, friends, new boyfriend or girlfriend) to control the dialogue and encourage them to dig in their heels.

Once people “dig in”, it is often impossible to “dig out”.  Protracted litigation only intensifies negativity and hostility. The idea that divorce has to be a negative experience then becomes a self-fulfilling prophecy, in which divorcing parties behavior, is influenced by their expectation that divorce must be awful.  I believe if you change the conversation surrounding divorce and allow yourself to “consciously uncouple” you will have much more satisfying experience surrounding your divorce.

I recently completed a 40-hour divorce mediation training program. This program has only solidified my beliefs that in many cases, a mediated divorce, is a better divorce. That is not to say that litigation is never necessary. There are some circumstances that cannot be mediated and some people that simply cannot effectively participate in mediation. That said though, divorce is multi-dimensional: it is legal, it is financial, and it is emotional. The great thing about mediation is that it can effectively address each of those dimensions.

(1) LEGALLY

Whether you litigate or mediate, you achieve the same end result: a legal divorce.  A mediated divorce however is often faster, less adversarial and provides more flexible and creative resolutions, narrowly tailored to your specific family dynamic.  It also allows for a more confidential process than airing out your dirty laundry in a series of public court filings and appearances.

(2) FINANCIALLY

I will never say “always” or “never” because I’ve come to learn that nothing is absolute.  A mediated divorce however, can certainly be more cost effective. Spending less to uncouple leaves more to be divided between the parties and therefore places both parties in a better position to maintain financial independence and stability post-divorce.

(3) EMOTIONALLY

Although emotions can run high during mediation, there is a much more focused approach on compromise and collaboration rather than “winning” as is seen in litigation. When people feel their spouse is negotiating in good faith and trying to be part of the solution, rather than part of the problem (i.e., zealously litigating over the smallest of disputes), they walk away feeling better about uncoupling, which leads to healthier relationships with themselves, their ex-spouse, and future romantic partners.

The takeaway from all of this is that choosing to uncouple, does not always have to be adversarial, financially draining and emotionally damaging. Take control of your divorce and find avenues in which to minimize the long-term effects.  Before deciding to wage war against your spouse, consult with an experienced and trained family law mediator to see how mediation can work for you.

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Lauren K. Beaver is a contributor to the New Jersey Family Law Blog and an attorney in Fox Rothschild LLP’s Family Law Practice Group. Lauren practices out of the firm’s Princeton, New Jersey office representing clients on issues relating to divorce, support, equitable distribution, custody, and parenting time.  Lauren also offers mediation services to those looking to procure a more amicable divorce. Lauren can be reached at (609) 844-3027 or lbeaver@foxrothschild.com.

In many cases, experts are a necessary, if not invaluable asset to have on your team. Often, they are not only needed to provide the necessary financial calculations (e.g. business valuation, calculating true income/cash flow, lifestyle analyses, tax calculations, alimony and child support scenarios, etc.), they can often help with the negotiation of issues relating to the calculations that they prepared.  Also, many clients have great trust in their experts so they are helpful in reassuring them that the deal is fair from their perspective or to explain why certain concessions may be worthy of consideration.

On the other hand, there are certain experts out there that usurp their role and act like they are the attorney, whether because that is their nature or because the attorney that they are working with has deferred the matter to the expert.  Using a football metaphor, the attorney should be the quarterback of the team, not the expert.

In one recent case, the adverse expert started by trying to value entities not owned by the parties; started preparing a lifestyle analysis when the parties were of retirement age; delayed doing a site visit on the business for no apparent reason and when he did, seemingly knew nothing about the case; kept claiming that he was waiting for documents – but couldn’t tell which documents he needed and there were no documents that had been requested which hadn’t been provided; delayed in providing a report and then when just schedules were agreed to be exchanged, were wrong, grossly deficient, and far less than what was provided by our experts; came to two settlement conferences and became the point person for the negotiations despite clearly/admittedly not knowing the law and then creating issues that simply did not exist (including saying that something which was not an asset, was an asset.)  It seem clear that that expert had made promises to the client at the beginning of the case that he could not keep at the end of it.  In fact, it appeared as though he pre-judged the matter and just assumed there should be more based upon the income, without looking at the spending or the assets in any depth.  Curiously, he kept saying that money “had to be missing” based upon one party’s income, but never bothered to do the forensics to prove or disprove his theory (though if he looked at the taxes paid and spending during the relevant period including weddings for two kids and educational costs, it was clear that no money was missing.)

At the mediation, the expert was doing a lot of the talking and negotiating while the lawyers sat largely silent.  The expert continued to press an agenda not based in reality.  The outcome of this was that the parties substantial needless legal and expert fees, and have delayed if not driven the parties further from settlement.

At a different matter in the last year or two, the experts had a several million dollar math error in their report.  There were also other issues/errors that the mediator (another forensic accountant) saw with their report.  Rather than trying to close the gap, the expert amazingly said, even if I fix the errors, I will change something else to get back to the same number.  It took extricating the experts from the equation to get the case settled.

Again, while experts are a valuable and necessary part of the team, neither the lawyer nor the client should let them run the show.  They are not the quarterback.

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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

We have all had this happen.  Letters get written back and forth to try to settle a matter and/or you just file a motion because the issue is clear based upon the law and the facts.  Or, the parties, for whatever reason, just wont resolve an issue because one or both is being unreasonable.  So you come to court to argue your motion and the judge urges you to settle again before hearing argument.  Ok, settlement on the courthouse steps is not uncommon, but often, a review of the motion papers should make it clear whether there is any prayer or a consensual resolution.  Worse yet, after you argue the motion that is ripe for determination, the judge defers decision and sends you to mediation.  Is that right? 13690807_s Well, in the case of Powell v. Gorski (an unreported – non precedential Appellate Division decision decided on April 22, 2015), the Appellate Division said no.  Specifically, the court held that once the court reviewed and analyzed a motion, the matter should have been decided.  In this case, one party filed a motion for emancipation and the other filed a defective cross motion for retroactive college and future graduate school contribution.  The trial court denied the request for emancipation without prejudice “[g]iven the existence of disputed issues of material fact”  but rather than scheduling a plenary hearing, the trial judge “encouraged [the parties] to mediate their disagreements” because “future litigation would not appear to be in the interests of either party.”  The Appellate Division reversed holding:

We also comment on the procedure employed here. We have previously noted “[t]he business of the courts is to finalize disputes.” Parish v. Parish, 412 N.J. Super. 39, 54 (App. Div. 2010). When parties properly file actions seeking review and determination, and the case is presented for disposition, the matters should not be redirected, but determined. Despite the judge’s salutary motive in urging the parties’ settlement, they have the right to final review of their contest. Had the judge considered the matter appropriate for mediation or some other alternative dispute resolution process, see R. 5:4-2(h), he could have offered that suggestion prior to review. Once undertaking review and analysis, a final determination should be made. Further, if the motion record was found to include disputed material facts, the judge should have scheduled a plenary hearing. … (Emphasis added)

All to often, matters are deferred to mediation or deferred to more experts when decisions need to be made.  The Parish case cited above was my case, and the trial court in that case mandated settlement conferences prior to filing future motions, but the Appellate Division determined that that was improper.  When parties need an issue decided and do what is necessary to have it decided, it should be decided. _________________________________________________________ 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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At its core, mediation is designed to be a process by which parties reach an amicable agreement through compromise.  This is what most litigants want, right?  Avoid the fighting, along with the associated time and expense – sounds great.  So what does psychology have to do with the mediation process?  Well, it can truly mean a lot whether a litigant wants it to or not, especially in custody and parenting time disputes.

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I am not referring to the psychology used to strategically mediate your matter into a better deal for yourself.  I am referring to the psychology of each party needed to determine, respect and understand where the other party is coming from.  I was once in a mediation where the mediator looked straight into the eyes of one party and asked if he respected the other party as a person or a parent – the litigant, without hesitation, said “no.”  When the same question was posed to the other party, she gave the same answer.  Not surprisingly, the mediation didn’t go well.  This should not mean that litigants need to respect each other for a case to settle.  Quite frankly, a lack of respect for the other person is not  uncommon in divorce matters, and may even be understandable, especially in matters involving adultery, extreme cruelty, and overall heightened levels of acrimony.  A respect and understanding for the other person’s position, however, can be extremely beneficial in getting a matter resolved in a fair and equitable manner for all involved.

So, when the mediator asks why you, as the litigant, would ever dream of taking a certain position and how it made the other party feel, this should not be taken as the mediator disagreeing with you.  Rather, it should be viewed as the mediator trying to understand where you are coming from and whether you understand why the other party may not agree and, ultimately, if the respective positions are fair and reasonable on that given issue.  This is certainly not the easiest thing to realize and it may feel like you, as the litigant, are being questioned under a spotlight by the person that you thought was supposed to be neutral.  It is best to keep in mind, however, that the mediator is there to act as a neutral and to bring everyone to a deal that makes sense and, to the extent possible, is in everyone’s best interests.

While many cases can simply proceed through mediation and settle without getting into this type of thought process, it can certainly help to take a step back and analyze the matter from a 1,000 foot bird’s-eye view to see where both parties are coming from.  As I indicated at the outset, this is especially true in custody and parenting time matters, where the emotions run higher than when the issue is strictly one of a financial nature.  This is not about liking or respecting the other person.  After all, you are getting divorced and trying to move on with your life for a reason.  Rather, this is about reaching a fair and amicable settlement that works for everyone involved.  If you can do that, then you are already one step ahead of the game towards resolving your matter.

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Robert A. EpsteinRobert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group. Robert practices throughout New Jersey and is based in the firm’s Roseland, New Jersey office.  He can be reached at (973) 994-7526, or repstein@foxrothschild.com.

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33691713_sRecently, 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.

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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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**This a reprint of a blog originally posted on August 13, 2010.

Almost every client that walks through my door wants to know how quickly his or her divorce will last and how much it is going to cost.  The best answer that I can generally give is, “it depends.”  It depends on you and your spouse, it depends on the other lawyer, it depends on the facts and legal issues, it depends on the judge, it depends on the county.  So many factors come into play that there really is no definitive answer.  In connection with that inquiry, clients want to know about mediation, usually because he or she has heard that it is a cheaper and quicker way to bring a divorce to a conclusion – when can it happen? how much does it cost? will we have to litigate if we mediate? does mediating mean that my case will end quickly?  Again, there are no definitive answers to these questions because they largely depend on the same points I highlight above.

RESOLUTION

Mediation is an incredible tool by which to resolve a case, which is why New Jersey courts not only encourage it as a form of alternative dispute resolution, but actually mandate it as part of the divorce process, as well as include it in the Court Rules.  So, even if you happen to be a litigant who is against mediating, you pretty much have little to no choice – the court system will require you to mediate whether you like it or not, because it is almost always better for the parties to privately settle the matter than the court, almost always quicker, more affordable, and the like, not to mention that it removes your case from a very busy court calendar.  Notably, mediation also allows you to settle your case in ways that a trial judge could not ultimately rule following a trial – especially as to alimony and equitable distribution.

To that end, if the mediation process is going to have any chance of success, picking the right mediator is a critical piece of the puzzle.  Selecting a divorce lawyer who knows the mediators, knows their reputations, knows how they conduct themselves, knows how much they cost, and the like, can only benefit facilitating a resolution in your matter.  Do you want a divorce lawyer to mediate your case?  How about a former family court judge?  Does your case need a mediator with a strong, definitive hand, or is a softer touch more appropriate?  Each case is very different, and each requires a different considerations for mediation.  For instance, if your spouse is the type of person who is going to head into mediation with a “litigation mindset”, where there is no compromising, and mediation is really just a passing phase of a longer litigation, then having a tougher mediator may be the right way to go.  On the other hand, if everyone is largely agreeable and can act appropriately with one another, then a softer touch might be the answer.

I recently experienced the power of choosing the right mediator, in what had been a very acrimonious matter that I became involved with more than a year after its commencement.  The parties had already attended mediation before my retention, and it was a complete disaster.  Ultimately it had nothing to do with the quality of the mediator, but rather whether the mediator was the right fit for a given case.  This particular mediator, as part of his style, required that everyone mediate in the same room, which, for this particular case, was never going to work.  The parties did not speak to each other at all, the acrimony was high, and the chemistry was combustible.  The mediator also had a more free form manner, not having “crunched” the numbers, relying more on what the lawyers had to say for their client’s respective positions in formulating a course to proceed.  In many cases, being in the same room and applying this sort of settlement mechanism is perfect.  Here, it was the opposite.

Subsequently, we went to a new mediator and it was evident from the start that she was perfect for this particular matter.  A firm touch with an analytical approach, while allowing the parties to mediate in separate rooms, it was no surprise that we reached the material terms of an agreement in merely two half-day sessions.  My adversary and I both recognized how effective the mediator was under the circumstances, and how she helped facilitate a conclusion to what was a matter seemingly headed for trial.

THE TAKEAWAY

Almost all parties want to mediate their divorce matter to bring it to an amicable and affordable conclusion.  Selecting the right divorce lawyer, and the right mediator, however, are vital components to achieving that goal.

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Robert A. EpsteinRobert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group. Robert practices in the firm’s Roseland, New Jersey office and can be reached at (973) 994-7526, or repstein@foxrothschild.com.

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During the current football free agent season, you hear the pundits frequently say that if you get a free agent that you want to sign in your building, don’t let him leave without a deal.  Why?  You don’t want them to get wooed by some other team or have second thoughts.   How does this apply to divorce, you may ask?

The case has been going on a long time.  One or both of the litigants or opposing counsel is difficult.  You are finally all together at a settlement conference, mediation, Intensive Settlement Conference at court.  Much to your surprise, real progress toward settlement is being made.  Finally, after a long, torturous day, you have a deal.

Arrows Choice Shows Options Alternatives Or Deciding Stock Photo  Photo courtesy of freedigitalphotos.net.

Now what do you do?  Do you do something to bind the parties to the essential terms of the deal?  If in court, do you put the terms on the record?  If at mediation, do you prepare some type of memorandum as the Willinboro Mall case that we have blogged on requires?  Or do you adjourn to prepare a formal Marital Settlement Agreement or Consent Order, knowing that someone could have second thoughts and blow the deal?  What if your client is desperate for the case to be done, but they are agreeing to a borderline bad or really bad deal?  Do you suggest that you adjourn to allow cooler heads to prevail with the hope that your client may re-think their acquiescence (maybe it was out of guilt, shame, fatigue, duress, emotional abuse going on behind the scenes, maybe they didn’t really understand, maybe they didn’t take their medicine. may they took a substance, etc.)?

That said, why do we not seal the deal, all of the time, even without a formal agreement listing all of the terms?  Because the devil is often in the details.  There are logisitical issues, issues about security, specific tax issues, issues regarding the specifics about how you will divide a retirement asset, etc. as well as a lot of other boilerplate – some meaningfull – some less so – that you would include in a formal agreement.  Sometimes you think you have a deal but then when you start discussing the details, you realize that there is more work to do, or in some cases, that there really wasn’t a meeting of the minds, at all.

Ok – so it sounds like you should never have a settlement without a formal agreement.  That’s not always true either, even though it is probably advisable.  In a recent matter, one party repeatedly reneged on a deal, even after my client agreed to “just one more thing” over and over and over.  At a court settlement conference, both that litigant’s attorney and the mediator were of the firm opinion that if the deal wasn’t put on the record, they feared that the other party would renege yet again.  So even though this was complicated, we put the basic terms on the record because it was important to bind them for other reasons.  There are other times when it may make sense to bind people to their agreement, as well.  It really is a case by case decision.

These are scenarios that divorce lawyers and litigants face every day.  This is tough stuff.  There is sense of relief, if not euphoria, when a matter is settled. That said – you have to choose wisely before you walk out of the door without the settlement being completely buttoned down.

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.

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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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