Alternative Dispute Resolution

Here at Court Masters Law Office, one type of case we handle is divorce. I thought it would be interesting to find out more about how divorce is being handled in the Duval Courts. I spoke with our family law attorney to get a deeper insight and following is what he had to say on the subject. It is a bit long but VERY informative.

While there are many kinds of alternative dispute resolution (ADR) outside the courts, the one most frequently favored by the trial courts is mediation. The reason the courts like mediation so much is that mediation settles cases.

Our Duval County courts are overburdened with cases. When the parties can come to an agreed resolution acceptable to all, that solution is almost always going to be superior to the solution imposed by a stranger (the judge) or several strangers (the jury).

Mediation is a non-binding procedure, facilitated negotiation; that is, the mediator will be working to bring the parties to an agreement which might not have been achieved with just traditional negotiation.

These proceedings are private and privileged, and communications with the mediator are confidential. The mediator is neither a judge nor an arbitrator; and cannot impose a result. While it is my experience that a fresh (and neutral) perspective on your case is often helpful in bringing the parties to an acceptable resolution, the parties remain responsible for, and in control of, achieving that mutually acceptable agreement. When we are in mediation, we are free to craft creative solutions; we don’t have to travel the trial ruts.

The parties and counsel meet with the mediator and the mediator, as a neutral party, attempts to explore with the parties different possibilities of settlement. Some mediators are quite good in that they focus their attention on creative fashioning of solutions. Others, unfortunately, become so focused on the objective of getting a settlement that they begin doing such things as disparaging the case, bewailing attorney’s fees, and/or, finding one side more ready to be reasonable and to give a little than the other, taking advantage of the reasonableness of that side by asking for more and more concessions in order that settlement may be reached.

While matters discussed in mediation and communicated privately to the mediator are confidential and inadmissible, this does not mean that facts learned and/or inferred during the mediation could not be used at trial if independently corroborated; for example, if a party cited criminal defense costs on a drug charge as the reason he did not have money to offer in settlement, the other party (while prohibited from asking “didn’t you admit you had a drug charge pending while we were at the mediation?”) could run a criminal records check and/or send an interrogatory concerning pending criminal charges and then use the information obtained at trial.

As with any settlement discussions, it is important to remember that, as a general rule, in mediation that we either have a deal or no deal. A common method of attempting to get more in negotiation is to focus on only a part of the entire field of issues and, on obtaining an acceptable or favorable result, attempt to remove that issue from the field and focus on another part. We must continue to look at the whole picture, to view the agreement as a whole, in order to make any rational ongoing decisions on the issues as they arise.

Some mediators commence the mediation by meeting with both parties and both lawyers together, at which session the mediator introduces himself and gives an overview of the rules and procedures of the mediation process, and then asks for a brief statement of the case, usually from the Petitioner first and then Respondent. The lawyer should take most, if not all, of this statement. Some mediators encourage the parties to talk, on the theory that venting their views to the other side will get that out of the way and encourage settlement. Most mediators find that direct venting toward the other side usually is counterproductive to settlement and the most common practice at the Duval County Bar Association’s mediation service is to avoid the initial everyone-together meeting, going straight to the “shuttle diplomacy”.

The parties, each with their own counsel, are then placed in different areas and the mediator goes back and forth between the two rooms, trying to bring about a deal. It is inadvisable to make your best offer first; no matter how many times the other side is told, “This is our best offer, we’re giving it up front to save time and money, anything we come back with later will be less favorable to you,” etc. etc., the other side will take this as the initial move in a horse-trading session.

If a settlement is reached and an irrevocable mediated settlement agreement signed by both parties and both lawyers, then filed with the Court, it is very difficult to get out of. Some mediators want to take the parties and the lawyers to the courthouse as soon as an agreement is reached and “prove it up” so that the judge can render judgment on the record (which makes it even harder to get out of if you change your mind). Dress so that you are comfortable enough for a day-long session but acceptable in appearance in case you end up going to court on short notice. Since, while the mediator is with the other side, you and your lawyer will have long stretches of time without the mediator, your lawyer should be prepared to work on your case with you or have other cases to work on if possible (so as to get “off your clock” for part of the time). You may wish to bring something to amuse yourself in case you and your family lawyer run out of things to discuss on your case.

Other available forms of alternative dispute resolution, if desired by the parties, include arbitration (a binding decision rendered by a neutral party after presentation of each side’s case under rules different from those of a trial), trial by special judge (in essence, a trial under the regular rules to a qualified former judge, whose decision is binding), moderated settlement conference (presentation of the case to a neutral panel for an advisory opinion), mini trial (presenting the case to a single neutral party for rendition of an advisory opinion), and summary jury trial (similar to moderated settlement conference and/or mini trial, but with a panel of at least six impartial people acting, in essence, as a jury).

Alternative dispute resolution also includes traditional settlement where the parties, acting through their counsel, arrive at an agreement to settle the case.

Most cases do not go to trial; most settle in some manner. This does not mean we do not prepare for trial; even if the cases is not tried, we are in a better bargaining position in any settlement negotiations if we are confident of a good chance for a good result if forced to go to trial. I have even had cases settle with the venire (jury panel) waiting in the hall.

Whenever an ADR procedure involves a neutral (mediator, arbitrator, etc.), that neutral almost always charges a fee. This fee is usually split equally among the parties.

Just as preparing for trial gives us an advantage in settlement discussions, settlement discussions which do not lead to a resolution of the case may nonetheless provide advantages such as sharpening and focusing our case for trial, eliminating some issues by agreement, and discharging some of the emotional content of the case.

*** This blog is meant for informational purposes only. We will not give out any legal advice. If you have any questions or wish to speak to an attorney, please contact our office***

Divorce and Bankruptcy

Here at Court Masters Law Office two of our most common cases involve family law or bankruptcy. In keeping with this month’s blogs regarding divorce, I wanted to discuss how divorce and bankruptcy can go hand in hand.

Money issues are among the top ten reasons people give for getting a divorce. Many times, each partner believes that the other is responsible for the couple’s money issues. Regardless of whom each person feels is to blame, both spouses are responsible for all debt incurred during the course of your marriage.

If you find yourself facing divorce and feel that filing bankruptcy is something you or spouse will proceed with, it is important to discuss this with the divorce attorney. It may make more sense to file for bankruptcy prior to obtaining the divorce. Here’s why. During the divorce processes, debts and assets are usually assigned to a spouse or required to be paid back jointly. Sounds good, right? You only have to pay back that credit card, your ex the loan. That agreement, however, is just between you. It is not binding to creditors. This means if your ex-spouse decides s/he can longer make it and files for bankruptcy, there is nothing stopping the creditor from coming after you. It may be in your best interest file prior to getting divorced, if you and your spouse can get along well enough. Again, the best decision is to talk to the attorney about your options.

Prior to 2005, if a person was ordered to pay support (child support, alimony, etc.) and they filed bankruptcy, that person (the debtor) could have that support discharged in the bankruptcy. This means that once the bankruptcy was over, depending on if it was a Chapter 13 or 7, the debtor would no longer have to pay support. This could cause problems if you were the one receiving the support. Effect October 17, 2005, however, President George W. Bush signed the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCAP) of 2005. One aspect of the BAPCAP is that the debtor cannot discharge support. If you are in a situation where your ex files for bankruptcy, it may be wise to consult with an attorney to make sure you are protected.

One thing to keep in mind through all of this, you can divorce your spouse, but you cannot divorce the debts incurred during your marriage.

***This blog is meant for informational purposes only. This blog is not intended as legal advice. If you have any questions or wish to speak to an attorney, please contact our office***

Children of Divorce

I wanted to follow up on last week’s blog about divorce. Children are often caught in the middle of divorce, and I wanted to turn our focus on them. Divorce is a difficult and stressful time for all parties involved. It can be especially stressful on the children who may not understand what is going on or feel torn between their parents. There are many helpful resources available to parents to help ease a child through the divorce process and beyond. The State Bar of Florida offers a brochure and DVD, “Kids in the Crossfire” that bring up interesting points on how children feel during the divorce process and ways a parent can help.

Duval County requires that parents of minor children attend an education and stabilization program. The follow sites are approved by Duval County if you would like further information.

  • For Kids Sake
  • Children Caught in the Middle
  • Children in the Middle
  • Divorce Sanity Co-Parenting

Remember, children have rights too. Below are the rights of children in divorce cases as adapted from decisions of the Florida Supreme Court.

1. The right to be treated as an interested and affected person and not as a pawn, possession, or chattel of either or both parents, and neither have authority, by agreement or otherwise, to waive any benefits ordered in behalf of their children.

2. The right to grow to maturity in that home environment which will best guarantee an opportunity for the child to grow to mature and responsible citizenship.

3. The right to the day by day love, care, discipline and protection of the parent having custody of the child.

4. The right to know the non-custodial parent and to have the benefit of such parent’s love and guidance through adequate visitations.

5. The right to a positive and constructive relationship with both parents, with neither parent to be permitted to degrade or downgrade the other in the mind of the child.

6. The right to have moral and ethical values developed by precept and practices, and to have limits set for behavior.

7. The right to the most adequate level of economic support that can be provided by the best efforts of both parents, which takes priority over all after-acquired obligations of all kinds.

8. The right to the same opportunities for education that the child would have had if the family unit had not been broken.

9. The right to periodic review of custodial arrangements and child support orders as the circumstances of the parents and the benefit of the child may require.

10. The right to recognition that children involved in a divorce are always disadvantaged parties and that the law must take affirmative steps to protect their welfare, and enforce compliance of their rights.

*** This blog is meant for informational purposes only. We will not give out any legal advice. If you have any questions or wish to speak to an attorney, please contact our office***