Mike's ADR (and related) Weblog

Domestic Relations Mediation

Domestic relations mediation is a great development. The unfortunate reality is that about 40% or so of marriages (and a higher degree of domestic partnerships other than marriage) end in a breakup.

Domestic relations mediation can allow both parties to keep their dignity and to keep more of their money. DR mediation can assist parties in dividing their property and in establishing parenting time. The parties are enpowered to be creative. The parties can then, with the assistance of their attorneys, enter their agreement as part of the divorce decree or domestic partnership dissolution.

Domestic relations mediation can also be effective in a contested divorce. A mediator can serve in an evaluative capacity and can give his/her opinion as to how a settlement can be reached on one or more contested issues. This can serve as a reality check and can enable parties to settle the case.

Domestic relations mediation is not appropriate for all cases. Cases involving domestic violence are inappropriate most of the time. Cases involving grossly unequal bargaining power also tend to be inappropriate unless steps are taken to ensure more equality.

Domestic Relations mediation ensures confidentiality. Divorce trials do not.

Domestic Relations mediation is less expensive than a trial.

Domestic Relations mediation settlements are more likely to be kept than judgments, especially in the case of child support.

In a divorce with children, the parents will still be involved with each other years after the divorce is finalized. A settlement reached through mediation can allow the parents to be functional joint parents rather than disfunctional "parents".

The biggest difference that I have observed between civil mediation and domestic relations mediation is that a tort case is a business decision; a domestic relations case is about one's life and the lives of one's children. Money, while important, is secondary to the issues that arise in the needs of the children.

If the best of divorce is good people at their worst, the best of domestic relations mediation is good people at their worst actively trying to work their way to what is best.

March 23, 2005

On winning a mediation

Does winning a mediation mean that your side won and the opposing side lost?

From my perspective as a mediator, I see my job as creating an atmosphere that fosters communication, in providing possible ideas for solving the problem, testing the strengths and weaknesses of the case. My job is to stay neutral and to not be swayed by the arguments of the parties.

Attorneys are paid advocates. The rules of professional conduct exist in part to ensure that attorneys be zealous advocates for their parties. Zealous advocacy can stand in the way of mediating a solution.

When a case comes to court ordered mediation, it is at about the last point that the parties have control over the outcome without court intervention. The parties have control over the mediation -- they may be able to choose the mediator, they may be able to choose whether or not to participate in the mediation. Control over the outcome is a strong motivation for the parties.

Winning a mediation means that the parties came away from the session with some mutually agreeable outcome that they had control over. A third party did not make the decision, they did.

So, if you want to win a mediation, come prepared to discuss the issues and needs that are at the heart of the controversy. Be open to discussion. Be prepared to compromise. Do not come thinking that your case is foolproof and that it is impossible to loose, because those cases have a tendency to loose at trial.

February 23, 2005

Mediation saves the parties money and time spent in litigation. It moves cases through the court system. It addresses the perceived need of President Bush in keeping trial lawyers out of court. By empowering the parties it addresses the need of trial lawyers in serving their clients. Why don't more courts use this.

In Michigan, a portion of the fees paid to file a case in court goes to pay for Alternative Dispute Resolution services. You might think that if the parties have already paid for these services the services would be required. They are not. Some courts do require that all or almost all civil cases (including domestic relations cases) go to mediation. However, this is the exception.

The Federal District court in Western Michigan has perhaps the entire menu of alternative dispute resolution options. Yet many of these options are rarely, if ever utilized by the parties.

Why is this? I think that much of the reluctance to utilize ADR is political: if a court is forced to become more efficient in handling cases, the need for more judges and support staff goes away. Ergo, the third branch of government resists this. A second reason for this is that many attorneys have no (or little) experience with ADR and are unwilling to learn how it can help their clients with their legal needs.

Educate yourself  (knowledge is power). If you are constitutionally opposed to lawyers then take heart: many folks in the dispute resolution field are not attorneys and in many places there is no requirement that a person serving as a mediator or arbitrator be an attorney. Demand better service.

Michael Boersma

January 24, 2005

Mediation is a nonadversarial process. Mediation invites parties to collaberate on designing solutions to their problems. When parties buy into mediation as a means of solvin their dispute, there is a high probability that there will be an amicable settlement.

That is the ideal. The reality is that parties often have other motives. Parties may wish to conceal evidence which might lead to a resolution. Parties may feel that the rewards of a jury trial outweigh the risks of loosing. Parties may be scared of the process. Parties may feel that because a judge ordered the case into mediation that they will not have to meaningfully participate.

Attorneys that represent clients in mediation really should educate themselves (and their clients) about the process. They should sit down with their client BEFORE the mediation and explain that they are active participants in the process. Someone with full settlement authority should be available during the mediation. Clients should be made aware that they must be ready to discuss all of their issues and needs arising from the dispute.

Mediation is not a therapy session. It is a problem solving process. Full disclosure helps to solve problems.

January 10, 2005

Have you ever wondered why certain commercial ADR providers advertise that their neutrals have 10 years or 15 years of experience in some related field? Does having 10 or 15 years of baggage help parties with resolving unique issues?

My biggest difficulty when I serve as a mediator is to stop thinking like a lawyer. Lawyers are trained to analyze issues and to apply a rule of law to arrive at a certain outcome. Parties to disputes are not lawyers. They do not think like lawyers. They do not care (and they may be hostile) about some notion about a rule of law that might affect their dispute.

Thinking like a lawyer can be an impediment to the successful resolution of a dispute. Mediation facilitates creative problem solving. Creative problem solving allows parties to craft their own unique solution to their unique problem. They are allowed to invest in the process and to invest in the solution.

10 or 15 years of industry experience as a basis for being an effective problem solver is much like my problem of thinking like a lawyer when I mediate. There are industry norms of conduct which participants are indoctrinated in and which are more difficult to back away from the longer a person has been involved in the industry. These norms of conduct then become like the rules of law which then leads to inflexibility. Creative problem solving becomes difficult.

It is important for participants in a mediation to understand that they are empowered by the process. The ADR service provider does not have to live with the solution. The parties do. Empowerment is a better Gage of the quality of the service than the mediators years of experience in a particular field.

January 6, 2004

There is a growing issue in ADR these days about the increasing amount of "legalism". This is a philosophical question about the way ADR is supposed to work: is the bar to entry to dispute resolution to be set extremely low, such that everyone has the option of participating or is the Ber to be set high so that disputes can only be solved with the assistance of an attorney, much the same way that the court system works today.

In many ways, especially in the realm of arbitration, ADR has become a creature of legalism. Arbitration is a means of permanently settling a dispute. Awards are enforceable. There is finality.

The process of arbitration is subject to forensic techniques common to litigation. Information about the dispute is obtained through a discovery process (in which, as all lawyers have been trained, the object is to gain as much information as possible so as to avoid prejudicial surprise). This information is then presented to the arbitration panel by human witnesses subject to examination and cross examination. The people that have been trained to do this happen to be attorneys. Finally, an award is issued which will reference findings of fact and conclusions based on the law and/or the contract.

The single largest shortcoming with this system is that there is usually not a system set up for awards to become case law for future parties to examine. The strength of stare decisis is that there is a defined strike zone for future reference. I arbitrate for several self regulating organizations in the futures and exchange industries where there is no recording of awards, thus the strike zone is set more by the personalities of the arbitrators than by binding precedent.

In the court annexed arbitration work that I do there is binding case law to abide by and there is a defined strike zone for the parties to aim for.

Lack of a defined strike zone affects arbitrator independence. In consumer and in employment cases, where a party, usually the employer or the provider of consumer services, sets up a ADR plan to avoid having cases litigated, there may only be a small pool of arbitrators. The people that make up the pool of arbitrators like to eat. The employer or the provider of consumer services may have many opportunities to utilize arbitration (consumers and employees may only use the system one time). The big player will want to use arbitrators that favor it over those who do not favor it, so there may not be real arbitrator independence. Awards that bind future panels assist in ensuring arbitrator independence.

Arbitration works well when the parties are ensured that there is a defined set of rules that everyone will be playing by. The AAA/ABA model rules are good examples. Where there is an industry wide practice of submitting disputes to arbitration, then there should be a corpus of "law" that the industry can turn to to avoid disputes in the future.

Introduction

1. Introduction to Mike's ADR (and related weblog)¯

January 4, 2005

I have been a lawyer now for seven years. I have been involved with various forms of alternative dispute resolution (ADR) for the past two years.

I apologize for my ignorance of weblogs and weblog etiquette. I was a early convert to the internet - before there was a web, but I am a latecomer to the world of weblogs.

My interest in having a blog on this topic is educational. Basically I want to share my experiences as a mediator and arbitrator so that anyone reading this blog can avoid my mistakes (and so those with more experience can give me pointers on how I can improve).

My interest is not primarily financial, although anyone who wishes can go to my office website at http://www.law-office-of-meb-pc.com and contact me through there. My law practice does pay for the groceries.

This blog may shift focus from time to time, depending on my inclinations. There may be occasions where I talk about bicycling or flyfishing or the Chicago Cubs. Please indulge my editorial urges.

I would also like any advice on how to improve the look of this site.

2. Alternative Dispute Resolution. As Dick the Butcher said in Henry VI "The first thing we do, let's kill all the lawyers." In 2005, the sentiment is the same. Many see the judicial system, especially in the United States and especially in Michigan, as being an expensive extravigance. Plaintiff's trial attorneys manipulate juries into awarding huge verdicts in frivolous cases.

The solution? Tort reform. Tort reform can be overt (caps on punitive and noneconomic damages). Tort reform can be covert (lets expand the use of altermatives to judicial trials (with juries) by encouraging mediation or arbitration).

I happen to do both. Mediation settles cases. Arbitration is a substitute for trial.

The legal system as a whole has been slower to embrace ADR. I still have attorneys who contact me confuse mediation with some other form of ADR (how can an attorney educate his/her client if s/he does not know the law?). I know many attorneys who are unwilling to "trust" arbitration (when the statistics show that awards in arbitration mirror jury verdicts). The US District Court for the Western District of Michigan has a very comprhensive system of pretrial dispute resolution (on paper, the most comprehensive system that I am aware of). There are precious few takers (apart from those who are ordered by the court to participate).

ADR saves the parties money. It reduces the cost to the taxpayer of trials. It is expedient. It is tried and true.

I will share my experiences in a court ordered mediation to take place on January 5, 2005 in a later posting.