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Which type of ADR is best in a family law case?

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By A. Brakke Campfield
and Christopher Macturk

adr_4_mainThere you sit with your client, Jane. Her husband, Bob, re­cently told her he wants a di­vorce. Bob claimed the long hours working in his family’s business have taken a toll on him. He never wanted to work for his father and brothers in the first place. Bob complained he’d never been in charge of his own life – his father always told him what to do. Jane then learned Bob had wanted to marry another woman he met years ago in college but his father wouldn’t allow it. Bob has nev­er forgotten her and has recently connected with her via social me­dia. They haven’t met in person – “nothing’s happened” – but he wants to see where that relation­ship may lead.

Bob claims he’s taking a stand against his father’s life-long control and, even though he’s now 52 years old, he wants to start his life over and be with this other woman. Bob believes that Jane is proba­bly not surprised as clearly they have not been happy in their marriage. He claims Jane drinks too much and spends too much money – didn’t she see these were signs of just how unhappy she really is? Didn’t she agree it would be best if they were no longer married? Wouldn’t she be happier, too? Bob tries to reassure her by reminding her about the money his fam­ily’s business has been able to generate for them over the years – they have plen­ty of money and other investments. She and the children will be taken care of and everyone will be happier. He just wants to come up with an agreement between them and have a lawyer write it up, the sooner the better.

Jane is devastated.

Bob and Jane have three children, two in high school and one a freshman in col­lege.

The last thing Jane wants is a divorce and she certainly doesn’t want a full-out court battle over money and the kids. She feels Bob will take care of the fam­ily financially. He always has. But she is concerned about his future at his family’s business as she is aware of how his father treats him there. She tells you Bob was given some shares in the business but purchased more shares with Jane’s help during the marriage. Also, who is this woman he’s reconnected with? What’s her role going to be in the children’s lives? Will Jane have to go back to work? It’s been over 15 years since she worked full time as a CPA and has only gone back re­cently part-time to help a friend start her own bookkeeping business.

Jane says she and Bob have never ar­gued during their marriage. All of this comes as a complete surprise and is just too much to handle. She wants Bob to re­alize what he’s doing to the family and to “get help.”

You learn Bob has hired an attorney whom you know well and respect.

Jane has expressed an interest in stay­ing away from court. What are some ADR “process” options to consider?

Mediation

Mediation could certainly help Jane.

The mediator can be chosen and agreed upon by the parties which may allow Jane to feel more connected and in control over the process. Nothing would happen with­out her agreeing to it first.

Choosing a mediator is probably more art than science and even if clients ar­rive on your doorstep with the name of a mediator, the lawyer should still brain­storm mediator options with the client. For example, we can consider certain basic traits a mediator may or may not have. Some mediators are retired judg­es like those at The McCammon Group and Juridical Solutions. Others are law­yers. Some are even non-lawyers, pri­marily from the healthcare field but some non-lawyer mediators also come from the financial sector. Do you need a retired judge? Not all but some retired judges who mediate will give an “opinion” if you ask for it, but only after all other options have been exhausted. Do you feel you will need that option? Or do you need someone from the healthcare field? Jane and Bob case present issues related to lingering adverse childhood experiences and possible substance abuse. Would a mediator with a counseling or therapy background be best suited? What about the financial issues presented by Bob’s interest in his family company and Jane’s qualification as a CPA but limited recent work experience?

Based on your good working relation­ship with Bob’s lawyer, the probability is high that you will choose the right me­diator for the job – one that has a sense of the family dynamic and has experience with the intricacies of the issues involved. For example, a business valuation ap­pears likely. The mediator should appre­ciate the need for the valuation and have experience in receiving a report from a business valuation expert. The mediator could then assist the parties in having a conversation about aspects of that report and help them reach an agreement on the value of the business interest.

If the lawyers have experience with the mediator they can let their clients know what to expect as far as how he or she approaches the process of mediation. For example, some mediators keep the parties primarily in the same room. Can Jane and Bob be in the same room at the same time and still have civil, productive conversations? Some mediators prefer a “shuttle diplomacy” where the parties primarily remain in separate rooms while the mediator goes back and forth. Is this necessary or will one or both parties get frustrated waiting for the mediator to re­turn and distrustful not knowing what’s going on in the other room?

Mediation is a confidential and private process and Jane may want to keep their family dispute a relatively private mat­ter.

It’s also completely voluntary. The me­diator makes no decisions but assists the parties in having a conversation in reaching their own agreement on the sub­stantive issues. This can be done by the mediator’s establishing certain ground rules for the discussions and the parties agreeing to that process. The mediator then ensures that the playing field is lev­el and that one party does not overwhelm the other.

Jane didn’t make the choice to sepa­rate but she can choose how she is going to separate which may be empowering to her. However, she may not know what she wants and will need more support throughout her separation, including in meetings with her husband, which is why Collaborative Law may be better suited for her matter.

Collaborative Law

Not all clients are suited for Collabora­tive Law and screening for suitability is very important. But as a newer method of ADR, it should be considered.

Collaborative Law takes a “team ap­proach” to dispute resolution. Lawyers, mental health counselors (called “coach­es”), and neutral financial experts team up to support Jane and Bob and their children through the process of reaching a separation agreement which will include such far-ranging issues as to division of retirement accounts to where their chil­dren will be for Spring Break. Each team member applies their own area of exper­tise to the many issues faced by Jane and Bob and their children.

Coaches would work with Jane and Bob on communication and trust-build­ing so that their future co-parenting is in the best shape it can be. How their chil­dren cope with the separation is primar­ily influenced by how well Jane and Bob interact with each other going forward as separated parents. Primary impor­tance is placed on that future relation­ship. How they interact in the future will be colored by how they interacted in the past. For example, the fact that they nev­er fought during the marriage may mean they never really communicated with each other or know how to express their needs and wants with the other person. If this aspect of their relationship goes unaddressed, things may continue to be unsaid and resentments may build. Mis­understandings and incorrect assump­tions will then fill the void leading to an inability to work out even the simplest of things between them, all to the detriment of their children. Coaches can prove in­valuable to parents to ensure this does not occur.

adr_5_mainNeutral financial experts gather infor­mation on the family finances and provide advice and guidance on how best to make di­vision of assets and debts as well as consider present and future income sources to meet expenses. This may not seem that important to Jane and Bob considering he works at his family’s business and has always taken care of the family financially. We may assume he has a working knowledge of the family’s fi­nances. As former practicing CPA, Jane may have the financial wherewithal to consider the financial issues involved. However, dis­agreements can still arise, for example, over claimed expenses or division of certain as­sets. A “neutral” financial expert is just that – neutral. So, if Bob doesn’t like an expense claimed by Jane in support discussions, the neutral can simply say, “Well, that’s what your own books show and I’ve gone through them with a fine tooth comb.” The discussion on that issue is no longer between spouses with accompanying the emotional effect, but between one party and the financial neutral where the relationship is purely profes­sional. Taking the emotional sting out of a conversation is always helpful to reaching a reasoned and reasonable agreement.

Collaborative lawyers represent their re­spective clients so Jane and Bob would each have their own lawyer. However, the law­yers will have received training in the Col­laborative process and will counsel their cli­ents against positional bargaining like that you may experience when buying a used car. Rather, they use interest-based techniques focused on joint problem-solving, so much so that should the Collaborative process ter­minate for any reason Jane and Bob would need to find new lawyers. The Collaborative lawyers aren’t focused on anything else than the Collaborative process. They are not distracted by the possibility of going to court during settlement discussions. Legal advice is given freely to clients by their lawyer in the presence of the other spouse and their attorney. Much of the Collaborative process happens around the same conference room table. Trust, transparency and voluntary disclosure of assets are all paramount.

When you hear Jane’s story, you may see several possible forks in the road where the case could divert onto a much rougher road thereby making resolution by mediation or Collaborative Law quite difficult. In that situation, other alter­natives to traditional litigation could be considered, including arbitration and us­ing a Judge Pro Tempore.

Arbitration

Arbitration is another form of alter­nate dispute resolution. Jane and Bob may pick arbitration as a private form of litigation which can keep issues between them confidential. Since Bob’s father will certainly react negatively to disclosure of financial details related to the family business, this confidentially may be im­portant in valuing Bob’s interest in the family business while retaining Bob’s po­sition and ability to derive income from that business. Jane and Bob can actually agree as to rules of arbitration and fur­ther agree to exactly which specific issues will be arbitrated. Arbitration is binding and is therefore not appropriate for cus­tody or support of their children. One ad­vantage of arbitration is that it results on a final resolution of the case. The arbitra­tion award is final and may be enforced by a court if necessary.

Many mediators will also arbitrate a case. Some mediators will agree to start with mediation and resolve as many is­sues as possible through an agreement. Then, if the parties are unable to resolve all issues submit the remaining issues to arbitration.

Judge Pro Tempore

You may tell Jane that if she and Bob cannot resolve complex valuation or trac­ing issues in their case through negoti­ation, mediation or collaboration, they may need multiple days to present their case to a court. In some jurisdictions, parties may be able to obtain a multi-day trial in a divorce case. Unfortunately, in others it may be difficult to schedule a hearing that will last more than a day.

Although not technically alternate dispute resolution, you may consider using a judge pro tempore where the issues are complex and the parties have sufficient funds to pay for this service. This process retains the case on the court’s docket but allows the parties’ lawyers to select a lawyer or retired judge to be appointed by the court to have the same authority as a judge for that specific case. Not only does this allow them extra time to present their case and provide ease of scheduling, but the lawyers can agree on an individual with the expertise, understanding, and experience to make well-reasoned decisions on their specific complex issues. A judge pro tempore is paid by the parties.

The judge pro tempore will conduct a formal trial and in all ways preside as a sitting judge. The judge pro tempore’s findings of fact and conclusions of law are incorporated into an order which is final unless the case is appealed to the Court of Appeals.


campfieldAnn Brakke Campfield
has practiced law for more than 35 years; she has been with Barnes & Diehl since 2000. Her family law practice includes collaborative law and alternate dispute resolution. She is a member of the Virginia, Richmond and international collaborative professionals groups. She is a 1981 magna cum laude
graduate of the Washington & Lee University law school, where she was a member of the Order of the Coif. She earned a master’s degree in teaching from Lynchburg College and her undergraduate degree from Stratford College. A past president of the Metro Richmond Family Law Bar, Brakke is a member of the Virginia State Bar Family Law section and the Chesterfield County bar. She is listed in Virginia’s Best Lawyers for Family Law. She has published numerous family law articles, including pieces for the Virginia Trial Lawyers Association and for the VSB.

macturkChristopher H. Macturk
is a shareholder at Barnes & Diehl, where he has practiced law since 2000. He was a solo practitioner for four years before joining the firm. A 1991 graduate of the University of Richmond, he earned his law degree from the Cumberland School of Law at Samford University. Chris is a Fellow of the American Academy of Matrimonial Law, and he has taught law as an adjunct at the University of Richmond law school. He has been listed in Virginia Super Lawyers since 2014 and he was named to Virginia’s “Legal Elite” in 2009 and 2013. He is A-V rated in Martindale Hubbell. He is a past president of the Henrico County and the Metro Richmond Family Law bar associations. He is a member of Collaborative Professionals of Richmond, Virginia Collaborative Professionals and the International Academy of Collaborative Professionals.

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