NEW ADR APPOINTMENT

I was recently appointed to be a panel member of the Alternative Dispute Resolution (ADR) Advisory Council for the Eastern District of New York. The mission of the ADR program is to provide federal litigants with an opportunity to resolve their disputes expeditiously through court mediation and arbitration.  

ADR AND THE NY COURTS

The NYS Unified Court System is committed to promoting the appropriate use of mediation and other forms of alternative dispute resolution (ADR) to resolve disputes and conflicts peacefully. For more information, see Alternative Dispute Resolution in the CourtsA

JUNE 2 AT 3:00PM

 

ADR FOR DIVORCE IN LONG ISLAND

NOTE: Previously,  this post has a picture from photographer Marco Verch who used the 2.0 of the Creative Commons license for much of his work. 

As noted recently in NYLJ (Mediation in the Pandemic By Abby Tolchinsky and Ellie Wertheim | August 18, 2020) : "New York Supreme Courts are now instituting presumptive mediation programs for matrimonial mediation. This program has the potential to defray the pressure from the volume and backlog of court filings that have accrued since the March shutdown and also help parties who are in tremendous flux in their family life."

In Nassau and Suffolk County, the court website notes the following:

"10th Judicial District

Nassau County Family Court
The Nassau County Family Court offers free, on-site mediation for parties with parenting (custody/ visitation) and support disputes. Judges or Referees may refer parties to mediation or parties may request mediation. For more information, call 516-493-4000.

Nassau County Supreme Court offers several ADR Programs:

1. Nassau County's Matrimonial Center maintains a roster of parenting coordinators, mediators, and neutral evaluators.
2. Neutral Evaluation: After a preliminary conference or when deemed appropriate by the Judge, a case can be referred to a volunteer attorney who serves as a neutral evaluator. For more information, contact Mary Campbell at 516-493-3321.
3. Voluntary, binding arbitration and neutral evaluation are available for tort cases.
4. The Commercial Division offers a mediation program. The Judge may refer cases to mediation.

Suffolk County Supreme Court offers several ADR programs:

1. Divorce Mediation and Early Neutral Evaluation: PROJECT CALM ("Civil Alternatives to Litigating in Matrimonials"):  Call 631-853-4333 to ask for a referral.
2. Mediation and Neutral Evaluation in Guardianship Cases:  Call the Model Guardianship Part for more information.
3. The Commercial Division offers a mediation program.
   The Judge may refer cases to mediation."

DIVORCE WITHOUT LITIGATION?

From an email I received from Mark S. Gottlieb CPA, P.C. :

http://www.bizactions.com/n.cfm/page/e100/key/270233223G2334J5952409N0P35P3081T1/

In the words of Abraham Lincoln: "Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough."

ATTORNEY FEE DISPUTE RESOLUTION

Attending a PART 137 ARBITRATION TRAINING:

"It is the policy of the Courts of the County of Nassau, Tenth Judicial District (“Courts of Nassau County”), to encourage out-of court resolution of fee disputes between attorneys and clients in a fair, impartial and efficient manner. The Administrative Judge of the County of Nassau, Tenth Judicial District, is designated as the Administrator of the Attorney-Client Fee Dispute Resolution Program for the Courts of the County of Nassau under these Rules and may delegate duties to such officers, committees, and employees as he/she may direct."

DIVORCE AND FAMILY LAW ISSUES

Recently, I posted a discussion on the need for counseling and when it comes to matrimonial issues. There has also been a thread or discussion on a Family Law Professional Group on LinkedIn entitled "Should we make it easier to divorce? Should we make it harder to marry?" I would like to repeat a post recently made by a New Zealand attorney Stephen G Anderson who describes himself as a "Non-adversarial family lawyer":

""Easier", of course, depends on your jurisdiction. In NZ there is a wait of at least 2 years. In England we have options based on either periods of separation or fault. Nobody in their right mind believes that only one person is at fault in anything other than the most rare cases, yet fault - adultery and unreasonable behaviour - are most often cited because they allow a dissolution process to start immediately. Is this good? Probably not always, and particularly not when the other person has no idea it's coming. But managed sensitively and non-adversarially, which is possible even with behaviour being alleged, it allows the couple to start the end process. Making them wait two years can increase tension and could make the eventual discussions about children and money even more adversarial. So I'm in favour of allowing people to start a divorce once they've come to the conclusion their marriage has broken down irretrivably.

Whether the outcome is a good one or a bad one will largely depend on how you go about it. Choose an old-fashioned, traditional family lawyer, who isn't versed in non-adversarial techniques and who doesn't understand and appreciate (or chooses to exploit) the emotional dynamics involved - often referred to admiringly by those who don't understand as a Rottweiler - and you may end up with a bad deal, with damaged kids and huge legal bills. Visit a mediator or collaborative lawyer to begin with - pros who problem-solve rather than seek to attribute blame - and the outcome is likely to be much better for the couple and their kids. And it won't cost so much. Mediation costs about 20% of cost of typical case settled by lawyers and with a much greater chance of court hearings avoided..

So making divorce easier coupled with better information about mediation, counselling and collaboration may help bring an unhappy marriage to an end sooner, with a better outcome and at a lower cost to the family emotions and purse.

Making divorce more difficult, as it was in England up to the 1970's, will cause greater emotional upset to the couple as individuals and to their children, frineds, family and work colleagues, and lead to much larger legal costs, in my view.

Making it harder to marry? Not sure if arranged marriages make it harder to marry, so perhaps their not a good comparison, but I cannot see that there should be any mandatory tests or counselling any more than for any other contract. Provding people with information before they decide to marry is a good idea, it's just finding a way to deliver it that is tricky.

So I'm not really in favour of making it more difficult to marry, and am in favour of "easier" divorces. But many of the problems surrounding marriage breakdown would be reduced if lawyers developed more family/child focussed practices, promoting counselling and therapy alongside mediation and collaboration - and if they refused to engage in adversarial divorce techniques."

HOW TO LOSE A CLIENT THROUGH ARBITRATION

When I was in law school, there were and still are many schools of thought regarding alternative dispute resolution, like arbitration. Arbitration is a form of alternative dispute resolution, a legal technique for the resolution of disputes outside the courts, wherein the parties to a dispute refer it to one or more persons (the "arbitrators", "arbiters" or "arbitral tribunal"), by whose decision (the "award") they agree to be bound. It is a settlement technique in which a third party reviews the case and imposes a decision that is legally binding for both sides. It was, for many years, argued that arbitration was more cost effective than going to court and that decisions would be reached earlier. On my Facebook site at www.facebook.com/jmprobstein, I have a link to a recent article from Consumer Reports entitled "Locked Out Of The Courts" that discusses the problems that consumers are having with arbitration clauses forced upon them. But it's not just consumers that have this problem! Let me relate how I lost a client from recommending that the client, a retailer, put in an arbitration clause in their agreement with consumers. I represented this company in many litigations so after two major litigations, I suggested that we revise their agreement to include an arbitration clause and that this would reduce the costs of any future litigation. Well, one litigation came up from a wealthy and very angry consumer who decided that they would incur all the costs of arbitration for reasons that are not relevant. Because the point is: the arbitration was so costly, dragged on for over a year, dozens of hearings, etc., that my client realized that the court process was less costly and quicker. And they were so disappointed with my suggestion of an arbitration clause, that afterwards they retained new counsel. Arbitration may have it's advantages, but to date, I have only seen it's disadvantages. In fact, just several years back, there was a dispute between two parties who were subject to an arbitration clause. Because of my expertise, I was appointed an arbitrator by one side and the other side appointed another lawyer as an arbitrator. Myself and the other lawyer needed to appoint a third neutral arbitrator. It took months and thousands of dollars for both sides to agree to the neutral arbitrator and they were so annoyed by the high costs and fees, that they decided to settle the matter. The fact is: the clients could have started an action in the courts, at a cost that would have involved less fees, and come to the same early realization that the matter should be settled.