A Better Way: Family ADR-Mediation and Arbitration
Connecticut Law Tribune
December 16, 2014
Both mediation and arbitration offer effective alternatives to contentious and protracted litigation of family matters. Each process provides counsel an opportunity to guide their clients to a forum for resolution of their financial and custodial issues, whether pendente lite, at trial or post-judgment. Mediation can address all custodial and financial issues. Arbitration is available for resolution of all financial issues except child support.
Mediation of a family matter offers a more efficient, less expensive and more satisfying method of resolving custody, support and parenting disputes. Research demonstrates that a mediated agreement is more likely to result in outcomes satisfactory to all parties and more faithful adherence to the requirements of the agreement than result from traditional forms of dispute resolution.
The parties cannot pick the trial judge, but they can pick their own mediator. This is important when counsel has a challenging position or client that needs to be heard with a sensitive and patient ear. An impartial mediator can be selected who understands the nuances of complex financial and custody cases and who is able to manage difficult personalities. This comes only with years of experience and an intimate knowledge of the likely outcome of a litigated case. The job of a mediator is to allow the parties and counsel to actively participate in the decision-making process. Trials, unfortunately, do not accomplish that purpose. The formality of a courtroom does not provide a forum that has any healing components to it. Surely in mediation, the parties do not get all they want, but with the benefit of an experienced and patient mediator, who is faithful to the principles of mediation, a more lasting and satisfying result is achievable.
Mediation is less expensive and more efficient than litigation. Attorneys prepare once for a mediation on the day(s) they select; they have the undivided attention of the mediator. Clients are not billed for the time their attorneys wait in court for their case to be heard. If a trial lasts more than one day, trial dates (days) are rarely consecutive. There is a significant economic and emotional cost involved in this delay. The attorney must re-prepare for the trial to start up again. Typically, events have occurred in the interim which require more interviewing and preparation. Clients do not weather the delay well. Often only one party has been heard, which causes consternation and frustration for the other party. All of this makes the trial more difficult and costly. The longer the trial drags on the less likely the attorney will be fully paid.
The mediator brings settlement skills and experience shaped by knowledge of likely results following trial. When the mediator is able to assist the parties in reaching a negotiated settlement, the positive result means that buyer’s remorse is less likely and the attorney’s efforts will be appreciated. Whether there are financial or parenting issues to mediate, or both, the process allows the parties to structure a finely tuned result that accounts for all of the complexities of a case. This contributes to client satisfaction with the attorney’s services. Further, it helps alleviate future disputes between the parties.
Mediation is an effective method for solving parenting disputes without a prolonged, invasive, and wrenching process played out both in and out of the courtroom. The mediation process guided by a skillful neutral encourages the parties to adopt compromises they can embrace rather than rely on judicially imposed decisions that can further exacerbate family tension and conflict. A mediator trained and experienced in understanding children’s needs can provide guidance and education so that the parents, working with that mediator and their attorneys, can arrive at a lasting and appropriate custody and parenting plan.
Not every case can be successfully mediated. Where a party is intractable in a position on financial issues by reason of principle or personality, the matter must be decided by a neutral person. Arbitration offers a great alternative to a court trial. Like mediation, arbitration is a cost efficient and effective process for resolving family financial disputes.
Usually parties who decide to arbitrate have important reasons to prefer a private trial shielded from public view. These reasons include the need for privacy, the desire to avoid disclosure of embarrassing conduct or the need to conceal financial improprieties that could result in an IRS audit or even a criminal prosecution.
There are, however, other good reasons to utilize arbitration in a family matter. The parties are largely able to design and control a process that is responsive to their individualized needs. They can insulate the final decision from judicial review and therefore public scrutiny. Additionally, they can avoid the embarrassment that often attends the public presentation of salacious or unflattering evidence.
In many jurisdictions it is very difficult to have an expeditious pendente lite hearing in excess of one hour or a hearing for complicated financial matters. Since appeals from pendente lite orders are both rare and rarely cost efficient, arbitration of these unsettled matters is the most efficacious approach. Again, the parties pick their arbitrator, their hearing date and streamline the process to the extent agreeable by all. Whether the arbitration of the motions is half day, whole day, or multiple days, the clients will get the attention that the matter requires in a convenient and appropriate environment.
Arbitration Trials Save Time and Cost
While an arbitration award is rarely overturned by a court, the same can be said of a decision after trial. In the last three years, the reversal rate of those family trial court decisions appealed to the Appellate Court has been 35.5 percent for 2013, 24 percent for 2012 and 35 percent for 2011. (Data courtesy of Attorneys Campbell D. Barrett and Steven Dembo’s presentation to the Hartford County Bar Association.) These reversal rates are low. They also do not reflect the terrible economic and emotional cost to the family for the appeal and the re-trial where there is reversal.
In arbitration, the parties select an experienced arbitrator who will provide a fair, private and convenient trial. This is a tremendous cost-saving for the client because of the scheduling difficulties in the overburdened court system. The additional payment to the arbitrator pales before the cost of a trial spread out over weeks or months, because of the duplicative preparation time and the fragmented presentation of evidence.
Most cases are likely to come within a certain range of value. Arbitration is a great tool for the attorney who has a client that “just needs to hear it from a judge” and cannot make a decision for him/herself. It provides cover for the attorney, a hearing for the party, and an expeditious and definite result.
Lynda B. Munro, Connecticut Superior Court Judge (Ret.), is a member of Pullman& Comley’s Alternative Dispute Resolution (ADR) practice, and provides mediation, arbitration and related ADR services in all family and matrimonial matters including financial, custody and parenting disputes. Reprinted with permission from the December 16th issue of Connecticut Law Tribune. ©2014 ALM Properties, Inc. Further duplication without permission is prohibited. All rights reserved.