Bar News - November 16, 2016
Family Law: Exploring Underused ADR Options for Families in Transition
By: Lauren Adams and Deborah Kane Rein
Editor’s note: This is the second part of a two-part series exploring ADR options in family law cases. Read part one in the Oct. 19, 2016, issue of Bar News.
Some emerging and little-known alternative dispute resolution methods that can assist families in transition include Mediation-Arbitration (Med-Arb), Arbitration-Mediation (Arb-Med) and Arbitration (Arb). Here, we explore how these methods might be employed to most efficiently and effectively meet the needs of families.
In more complex family matters where the parties want to avoid litigation, yet something more than facilitative or evaluative mediation is needed to get the parties to a final resolution, lawyers should consider arbitration, or using a combination of mediation and arbitration to resolve a case.
The authority for using arbitration in domestic relations cases lies in RSA 542:11. The statute provides for the litigants in a domestic relations case to agree to attend arbitration with a specific arbitrator and have their agreement to arbitrate approved (and enforced) by the court. The decision that is issued by the arbitrator gets filed with the court and has “the same effect as the report of a marital master,” under RSA 542:11, VI. Once approved by the court, the arbitrator’s decision may be appealed to the New Hampshire Supreme Court.
New Hampshire practitioners have little experience with RSA 542:11 and, while marital cases have occasionally been submitted to arbitration, it is an underutilized tool for case resolution. Even less used is the hybrid process called med-arb. In med-arb, the parties attempt to resolve some issues in mediation and then proceed to arbitration on issues that remain unresolved or were not even attempted in mediation.
A similar process is arb-med, in which the arbitrator makes a decision on a discrete issue that then allows the parties to mediate to resolution. In med-arb, the neutral can act first as a mediator and, failing resolution, can move on to act as an arbitrator; likewise, in arb-med, the neutral can act first to make a decision on a particular issue or issues and then move on to mediation. Different neutrals can be used for each function, from the same or different firms.
The advantages of using arbitration or one of the hybrids in cases where mediation may not be appropriate include: a) choosing your own neutral(s), including the decision-maker, thereby finding a good fit for a particular case; b) expediency when otherwise faced with a crowded court docket, flexibility in scheduling, and finality for the parties and their family; c) individual case management and flexibility in the manner of case presentation; and d) cost efficiency due to earlier resolution and differentiating issues for resolution.
Here are a few examples of scenarios in which employing a flexible approach with an arbitration component could be the most efficient and effective means to resolve the family dispute.
Arbitration – Husband and wife have no children and own several pieces of real estate, including the marital home and two rental properties. Their primary source of income is the rents on their two multifamily homes. They want to resolve their divorce expeditiously because the husband would like to move to Florida to start a new life in a warm climate.
Wife and husband disagree on the values of their properties. The one thing they agree on is that obtaining opposing appraisals on three properties will be expensive and tax their limited cash flow. Their lawyers have suggested arbitration as a means of obtaining finality for their divorce. The attorneys speak to the neutral ahead of time about relaxing the rules of evidence and allowing the arbitrator to review the parties’ testimony while also considering no-cost market analyses and confirming information from real estate websites like Zillow.
With the agreement of all parties, within two weeks, the neutral reviews the relevant law and information provided by the parties, holds the arbitration session, and issues the decision within 72 hours. The decision is submitted to the Court and the parties receive confirmation of their divorce within a month of first contacting the neutral. They are both able to move on with their life plans.
Med-Arb – Wife and husband spend a full day in mediation. They are able to come to resolution over parenting issues, child support and property division. The parties agree to equal time with the children. Husband, while employed, is seeking additional support as alimony. Wife, a physician, obtained her medical degree during the marriage. Husband feels strongly that there should be some compensation to him for supporting her during her education, internship, and residency, especially given her now larger earning capacity and better standard of living.
Wife adamantly believes that the husband could earn more, even though he put off advances in his career while she was advancing hers. Their emotional attachments to their respective positions make it difficult for them to see eye-to-eye on any reasonable outcome, and, after a full day of mediation, they are emotionally exhausted. They return a week later for arbitration, at which time a different neutral makes a final decision on alimony. They are relieved to have the case over without further emotional expenditure – and without, perhaps, a destructive blow to their ongoing parenting relationship.
Arb-Med – Husband is a minority shareholder in a family business. Husband and wife have young children together. They completed a final parenting plan, and would like to maintain a cooperative and civil relationship with each other for the sake of their children. Both parties agree that the division of property, including the value of the husband’s share in the family business, should be divided “equitably.”
Despite each party obtaining business appraisals, they are at an impasse in negotiations over the value of the business and the value of husband’s interest in it. The parties’ lawyers seek a decision on the business valuation, after which they are fairly certain they could mediate “an equitable” settlement.
They present their case to a neutral who, after reviewing the evidence, arbitrates a decision on the value of husband’s interest in the business. The next day, the parties meet with the same neutral or another to mediate the final property settlement.
These examples offer a few of the possible issues that could be resolved expediently by arbitration, med-arb or arb-med. It is best practices to analyze, in each case, what decision-making process will best achieve the parties’ goals, while providing them with finality regarding their dispute.
Deborah Kane Rein
Lauren Girard Adams
Deborah Kane Rein and Lauren Girard Adams are mediators with Hess Gehris Solutions in Concord, NH and can be reached at (603) 225-0477.