Alternative Dispute Resolution in Domestic Relations

Alternative Dispute Resolution in Domestic Relations Submitted by Eric K. Johnson

 Alternative Dispute Resolution in Domestic Relations

1. Let’s Learn Some Useful Statutes and Rules

See Utah Code § 30-3-39.  Mediation program.

(1)       There is established a mandatory domestic mediation program to help reduce the time and tensions associated with obtaining a divorce.

• Mediation is often put off until just before trial, which all but completely nullifies what has been described as some of mediation’s biggest benefits:
• “to help reduce the time and tensions associated with obtaining a divorce” and
• reduce the costs associated with litigating a divorce.

(2)       If, after the filing of an answer to a complaint of divorce, there are any remaining contested issues, the parties shall participate in good faith in at least one session of mediation. This requirement does not preclude the entry of pretrial orders before mediation takes place.

• Can a judge order parties to go to mediation more than once?
• “unfunded mandate”?
• Come to think of it, why are compelled (by law) to go to mediation by law and then compelled to pay a mediator too?
• There’s no law that compels people to hire lawyers. It’s a choice.
• If mediation is not a choice, why must we be forced by law to pay for mediation?
• Can a judge order a party’s attorney to attend the mediation settlement conference?

(3)       The parties shall use a mediator qualified to mediate domestic disputes under criteria established by the Judicial Council in accordance with Section 78B-6-205.

Governing Rules and Statutes

• Utah Alternative Dispute Resolution (ADR) Act – Utah Code § 78B-6-201 et seq
• Utah Uniform Mediation Act – Utah Code § 78B-10-101 et seq.
• Utah Rules of Court-Annexed Alternative Dispute Resolution (URCADR)
• Utah Code of Judicial Administration Rules 4-510.01 – 4-510.06
• Utah Code § 30-3-39 (Divorce Mediation)
• Utah Code § 30-3-38 (Co-Parenting Mediation [Visitation])*

*applies to 3^rd District only

(4)       Unless otherwise ordered by the court or the parties agree upon a different payment arrangement, the cost of mediation shall be divided equally between the parties.

• Sometimes opposing counsel will try to make who pays for mediation one of the issues to be discussed in mediation
• Lame
• good to know you can cite the default rule for how costs of mediation are divided between parties.
• but could you move to make the other party pay for some or all of the mediation costs after the mediation session has been held?
• 30-3-39 does not provide that cost of mediation are shared equally unless the court orders otherwise in advance of mediation

(5)       The director of dispute resolution programs for the courts, the court, or the mediator may excuse either party from the requirement to mediate for good cause.

• No appellate case law as to what constitutes “good cause” for being excused from mediation
• Even if you don’t think mediation will settle the case, mediation may have other kinds of value as an informal discovery tool
• Indeed, its use (or abuse?) as an informal discovery tool was one of the arguments against mediation when it was struggling to gain a toehold in the legal system

(6)       Mediation shall be conducted in accordance with the Utah Rules of Court-Annexed Alternative Dispute Resolution.

Utah Rules of Court-Annexed Alternative Dispute Resolution

Rule 101. Conduct of mediation proceedings.

“(a) Selection of mediator. The mediator shall be selected as provided in Code of Judicial Administration Rule 4-510.05(4).”

[Rule 4-510.05. Referral of civil actions.

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(4) Selection of ADR provider(s).

(4)(B) The parties may select:

(4)(B)(i) An ADR provider from the roster on the Court’s web site; or

(4)(B)(ii) An ADR provider pro tempore having specialized skill, training, or experience in relevant subject matter. Pro tempore providers must agree in writing to comply with this rule and the URCADR.

(4)(C) If the parties are unable to select a provider the parties shall return a copy of the court roster to the Director with the names of up to half of the members of the roster stricken. If there are more than two parties, each party shall be permitted to strike a proportion of names equal to or less than its proportion of the number of the parties. The Director shall select the provider(s) from among those providers not stricken by any party. The Director shall mail notice of the selection to all parties and the selected ADR provider.

(4)(D) If a party, within 10 days of mailing of the notice of selection, files a written request that the selected provider be disqualified under Canon II of URCADR Rule 104, or if the ADR provider requests to withdraw for good reason from participation in a particular case to which that provider was appointed, the Director shall select another available qualified ADR provider to participate in that case, giving deference to the expressed preferences of the parties, if any, as provided in these rules.]

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(5) The fees of the ADR provider shall be paid in advance and divided equally between or among the parties unless otherwise provided by the court or agreed by the parties. Any party may petition the court for a waiver of all or part of the fees so allocated on a showing of impecuniosity or other compelling reason. If such waiver is granted, the party shall contact the Director who will appoint a pro bono ADR provider.

(6) An ADR provider acting as a mediator or arbitrator in cases under the ADR program shall be immune from liability to the same extent as judges of this state, except for such sanctions the judge having jurisdiction of the case may impose for a violation of URCADR Rule 104 which raises a substantial question as to the impartiality of the ADR provider and the conduct of the ADR proceeding involved.

(7) No ADR provider may be required to testify as to any aspect of an ADR proceeding except as to any claim of violation of URCADR Rule 104 which raises a substantial question as to the impartiality of the ADR provider and the conduct of the ADR proceeding involved.

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(9) Location of ADR Proceedings. Unless otherwise agreed upon by all the parties, all ADR proceedings shall be held at the office of the ADR provider or such other place designated by the ADR provider.

(b) Pre-mediation conference.

• Within 10 days following selection, and after consultation with the participating parties or their counsel, the mediator shall conduct a pre-mediation conference and schedule the place, date and time of the mediation conference.
• The pre-mediation conference may be conducted by telephone, with the parties individually, or together.
• The parties may agree to conduct discovery pursuant to paragraph (f).
• The mediator may request that the parties exchange and/or submit a disclosure statement prior to the mediation conference.

(c) Mediation conference.

• All parties shall be present [at the mediation conference], shall be prepared to discuss, and shall have the authority to fully settle, all relevant issues in the case.
• The mediator shall conduct the mediation conference and determine the length and timing of sessions and recesses, and the order and manner of presentation of the issues.
• The mediation conference should proceed in a fashion that furthers the goals of the mediation process, preserves confidentiality, and encourages candor on the part of participating parties.
• The mediator should serve as a neutral facilitator, assisting the parties in defining and narrowing the issues and encouraging each party to examine the dispute from various perspectives, without undertaking to decide any issue, make findings of fact, or impose any agreement.

(d) Separate consultation with parties during the mediation conference.

• mediator may meet or consult separately with participating parties
• Information disclosed to the mediator on a confidential basis during separate consultation shall not be disclosed to other parties without the disclosing party’s consent.

(e) Settlement.

• In the event that a settlement to all issues is reached during the mediation conference, the participating parties or the mediator shall prepare, and the parties shall execute, a written settlement agreement and promptly file with the clerk of the court any documents appropriate for resolution of the action.
• In the event that a resolution of less than all of the issues is reached, the parties shall prepare and execute a stipulation concerning those issues that were resolved and identifying those issues that remain in dispute.

(f) Discovery.

• Discovery may proceed during the pendency of the mediation proceedings, except as stipulated by the parties.
• Subpoenas for the production of evidence by nonparties may be issued, served and enforced by the court as provided by the Utah Rules of Civil Procedure.

(g) Termination.

• If the mediator determines that the parties are unable to participate meaningfully in the process or that a reasonable agreement is unlikely to be achieved, the mediator may suspend or terminate the mediation process without explanation.
• The parties may terminate the proceedings at any time.

(h) Absent parties. Upon written recommendation by the mediator or motion by any party, the court may order absent parties to show cause why they failed to attend the mediation conference and, if appropriate, why sanctions should not be imposed.

(i) Change to arbitration. At any time prior to the conclusion of the mediation proceedings, the parties may agree to submit the matter to arbitration. Written notice signed by all parties and counsel of such agreement shall be sent to the Director. Selection of an arbitrator shall be governed by Code of Judicial Administration Rule 4-510(11). The parties may by agreement request that the mediator serve as an arbitrator.

Rule 104. Code of ethics for ADR providers.

• This Code applies to all arbitrators and mediators on the court roster acting pursuant to these rules and Code of Judicial Administration Rule 4-510.05.
• A court may impose sanctions against an ADR provider for violations of this Code which raise a substantial question as to the partiality of the arbitrator or a member of the majority of a panel, but a violation of other provisions of this Code does not establish grounds or authority for other judicial review of arbitration awards made under the court-annexed ADR program.

Canon I. ADR Providers Should Uphold The Integrity And Fairness Of The ADR Program.

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(c) After accepting appointment to and while serving as provider for a particular case, an ADR provider should avoid entering into any financial, business, professional, family, or social relationship, or acquiring any financial or personal interest which (1) is likely to affect their impartiality or (2) might reasonably create the appearance of partiality or bias. For a reasonable time after an ADR proceeding has been concluded, the provider should avoid entering into any such relationship, or acquiring any such interest, under circumstances which might reasonably create the appearance that the provider had been influenced in the proceeding by the anticipation or expectation of the relationship or interest.

(d) Providers should conduct themselves in a manner that is fair to all parties and their counsel; they should not be swayed by outside pressure, public clamor, fear of criticism, or self-interest.

(e) Providers should neither exceed the authority delegated to them nor do less than is required to exercise that authority.

(f) Providers should make all reasonable efforts to prevent delaying tactics, harassment of parties or other participants, or other abuse of, or disruption to, the ADR processes.

(g) The ethical objectives of providers begin prior to acceptance of the appointment to a particular case and continue throughout all stages of the proceedings. In addition, wherever specifically set forth in this Code, certain ethical obligations continue even after the award in the case has been made or after the case has been successfully resolved.

(h) A provider should not directly contact a party to solicit the selection of that provider in a particular case if the party is represented by counsel.

(i) A provider should refrain from promises and guarantees of results. A provider should not advertise statistical settlement data or settlement rates.

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(k) A provider should have the participants sign a written agreement to mediate their dispute.

(l) A provider should include in the participants’ written agreement to mediate a description of their fee arrangement with the provider.

Canon II. Disclosure And Disqualification.

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(c) The obligation to consider interests or relationships described in paragraph (a) is a continuing duty which requires an ADR provider who accepts an appointment to disclose, at any stage of the ADR proceeding, any such interests or relationships which may arise, or which are recalled or discovered.

(d) If relationships or interests exist that may create an impression of partiality or bias, but that, in the judgment of the ADR provider, pose no obstacle to objectively evaluating the case, making an arbitration award, or mediating the matter, then the provider should disclose those interests or relationships as early as possible in the course of the ADR proceedings. Such disclosure should be made to all parties and their attorneys and, where the matter is being arbitrated, to the other arbitrators.

Canon III. ADR Providers Should Conduct The Proceedings Fairly And Diligently.

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(e) ADR providers should not deny any party the opportunity to be represented by counsel.

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(h) Mediators shall inform the participants that they may withdraw from mediation at any time and are not required to reach an agreement. However, if the mediation is conducted pursuant to a mandatory mediation program, the mediator shall inform the parties of any participation requirements of that program.

Canon IV. ADR Providers Should Be Faithful To The Relationship Of Trust And Confidentiality Inherent In That Appointment.

(a) Maintaining confidentiality encourages candor, a full exploration of issues, and the integrity of the ADR program. Ethical standards require strict compliance with the promise of confidentiality as an integral element of the ADR process. Participation as a provider assumes building a relationship with the parties that is based on trust. At no time should any provider use confidential information acquired during ADR proceedings to gain advantage, personal or otherwise, or to adversely affect the interests of any party or any other individual or entity.

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(g) Mediators should preserve and maintain the confidentiality of all mediation proceedings. They should not disclose or discuss any information about or related to the proceedings to anyone, including the assigned judge. Mediators should keep confidential from other parties any information obtained in individual caucuses unless the party to the caucus permits disclosure. They should secure and ensure the confidentiality of mediation proceeding records that they do not destroy. They should render anonymous all identifying information when mediation proceeding materials are used for research, training, or statistical compilations.

(h) If subpoenaed or otherwise given notice to testify or to produce documents the mediator should inform the participants immediately. The mediator should not testify or provide documents in response to a subpoena or other notice without an order of the court if the mediator reasonably believes doing so would violate an obligation of confidentiality to the participants.

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Canon VIII. Process And Terms Of Settlement In Mediation.

(a) As self-determination is a fundamental principle of mediation, the mediator recognizes that the primary responsibility for the resolution of a dispute and the forging of a settlement agreement rests with the parties and their attorneys if represented. The mediator’s obligation is to assist the disputants to reach an informed and voluntary agreement.

(b) Primary responsibility for the resolution of a dispute and the forging of a settlement agreement rests with the parties and their attorneys. The mediator’s obligation is to assist the disputants to reach an informed and voluntary settlement. In the course of the mediation process, no mediator shall coerce a settlement or otherwise pressure any party or the attorneys for any party into accepting an agreement. Nor shall any mediator make for any party substantive decisions affecting the matter at issue. Mediators may make suggestions and may draft proposals for consideration by the parties and their attorneys, but all decisions are to be made voluntarily and without duress on the part of the mediator by the parties in consultation with their attorneys.

(c) Mediators should not attempt to usurp or otherwise assume the role of counsel for any party.

 

Utah Code Title 78B

Judicial Code

Chapter 6 Particular Proceedings

Part 2  Alternative Dispute Resolution Act

 

• 78B-6-207 Minimum procedures for mediation.

(2)(a)   Unless all parties and the neutral or neutrals agree only parties, their representatives, and the neutral may attend the mediation sessions.

(3)(a) . . . any settlement agreement between the parties as a result of mediation may be executed in writing, filed with the clerk of the court, and enforceable as a judgment of the court. If the parties stipulate to dismiss the action, any agreement to dismiss shall not be filed with the court.

• 78B-6-208 Confidentiality.
• ADR proceedings shall be conducted in a manner that encourages informal and confidential exchange among the persons present to facilitate resolution of the dispute or a part of the dispute.
• ADR proceedings shall be closed unless the parties agree that the proceedings be open.
• ADR proceedings may not be recorded.
• No evidence concerning the fact, conduct, or result of an ADR proceeding may be subject to discovery or admissible at any subsequent trial of the same case or same issues between the same parties.
• No party to the case may introduce as evidence information obtained during an ADR proceeding unless the information was discovered from a source independent of the ADR proceeding.
• Unless all parties and the neutral agree, no person attending an ADR proceeding, including the ADR provider or ADR organization, may disclose or be required to disclose any information obtained in the course of an ADR proceeding, including any memoranda, notes, records, or work product.
• Except as provided, an ADR provider or ADR organization may not disclose or discuss any information about any ADR proceeding to anyone outside the proceeding, including the judge or judges to whom the case may be assigned.
• An ADR provider or an ADR organization may communicate information about an ADR proceeding with the director for the purposes of training, program management, or program evaluation and when consulting with a peer.
• In making those communications, the ADR provider or ADR organization shall render anonymous all identifying information.
• Nothing in this section limits or affects the responsibility to report child abuse or neglect in accordance with Section 62A-4a-403.
• Records of ADR proceedings may not be subject to Title 63G, Chapter 2, Government Records Access and Management Act, except settlement agreements filed with the court after conclusion of an ADR proceeding or awards filed with the court after the period for filing a demand for trial de novo has expired.

 

Utah Code

Title 78B Judicial Code

Chapter 10 Utah Uniform Mediation Act

Section 101     Title.

Section 102     Definitions.

Section 103     Scope.

Section 104     Privilege against disclosure — Admissibility — Discovery.

Section 105     Waiver and preclusion of privilege.

Section 106     Exceptions to privilege.

Section 107     Prohibited mediator reports.

Section 108     Confidentiality.

Section 109     Mediator’s disclosure of conflicts of interest — Background.

Section 110     Participation in mediation.

Section 111     International commercial mediation.

Section 112     Relation to Electronic Signatures in Global and National Commerce Act.

Section 113     Uniformity of application and construction.

Section 114     Application to existing agreements or referrals.

 

Utah Codes § 78B-10-104.  Privilege against disclosure — Admissibility — Discovery.

(1)        Except as otherwise provided in Section 78B-10-106, a mediation communication is privileged as provided in Subsection (2) and is not subject to discovery or admissible in evidence in a proceeding unless waived or precluded as provided by Section 78B-10-105.

(2)        In a proceeding, the following privileges apply:

(a)        A mediation party may refuse to disclose, and may prevent any other person from disclosing, a mediation communication.

(b)       A mediator may refuse to disclose a mediation communication, and may prevent any other person from disclosing a mediation communication of the mediator.

• How?

(c)        A nonparty participant may refuse to disclose, and may prevent any other person from disclosing, a mediation communication of the nonparty participant.

• How?

(3)        Evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its disclosure or use in a mediation.

 

• 78B-10-105. Waiver and preclusion of privilege.

(1)        A privilege under Section 78B-10-104 may be waived in a record or orally during a proceeding if it is expressly waived by all parties to the mediation, and:

(a)        in the case of the privilege of a mediator, it is expressly waived by the mediator; and

(b)        in the case of the privilege of a nonparty participant, it is expressly waived by the nonparty participant.

(2)        A person that discloses or makes a representation about a mediation communication which prejudices another person in a proceeding is precluded from asserting a privilege under Section 78B-10-104, but only to the extent necessary for the person prejudiced to respond to the representation or disclosure.

(3)        A person that intentionally uses a mediation to plan, attempt to commit or commit a crime, or to conceal an ongoing crime or ongoing criminal activity is precluded from asserting a privilege under Section 78B-10-104.

 

• 78B-10-106. Exceptions to privilege.

78B-10-106.  Exceptions to privilege.

(1)        There is no privilege under Section 78B-10-104 for a mediation communication that is:

(a)        in an agreement evidenced by a record signed by all parties to the agreement;

(b)       available to the public under Title 63G, Chapter 2, Government Records Access and Management Act, or made during a mediation session which is open, or is required by law to be open, to the public;

(c)        a threat or statement of a plan to inflict bodily injury or commit a crime of violence;

(d)       intentionally used to plan a crime, attempt to commit or commit a crime, or to conceal an ongoing crime or ongoing criminal activity;

(e)        sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediator;

(f)        except as otherwise provided in Subsection (3), sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediation party, nonparty participant, or representative of a party based on conduct occurring during a mediation; or

(g)        subject to the reporting requirements in Section 62A-3-305 or 62A-4a-403.

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(3)        A mediator may not be compelled to provide evidence of a mediation communication referred to in Subsection (1)(f) or (2)(c)(ii).

(4)        If a mediation communication is not privileged under Subsection (1) or (2), only the portion of the communication necessary for the application of the exception from nondisclosure may be admitted. Admission of evidence under Subsection (1) or (2) does not render the evidence, or any other mediation communication, discoverable or admissible for any other purpose.

 

How to Qualify As a Domestic Relations Mediator in Utah

Utah Rules of Judicial Administration, Chapter 4, Article 5

Rule 4-510.01. Alternative dispute resolution definitions.

 

(5) “Court Qualified Mediator” means a mediator who is currently on the Utah Court Approved ADR Roster or who for some reason cannot join the roster due to a conflict of interest but meets all of the requirements to be on the Utah Court Approved ADR Roster.

(7) “Domestic Mentor” means a mediator who has completed 300 hours in conducting mediation in domestic cases and completed a domestic mentor orientation.

(8) “Master Mediator” means a provider who has completed 300 hours in conducting mediation sessions documented as required by the director. A master mediator may also act as a “Primary Trainer.”

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(11) “Roster” means the list of those persons qualified to provide services under the ADR program, and includes the information supplied by such persons pursuant to paragraph (3)(A)(i) of this rule.

 

Rule 4-510.03 Qualification of ADR providers.

This rule applies in the district court.

Statement of the Rule:

(1) To be eligible for the roster, an applicant must:

(1)(A) submit a written application to the Director setting forth:

(1)(A)(i) a description of how the applicant meets, or will meet within a reasonable time, the requirements specified in paragraph (2)(A), if applicable;

(1)(A)(ii) the major areas of specialization and experience of the applicant, such as real estate, estates, trusts and probate, family law, personal injury or property damage, securities, taxation, civil rights and discrimination, consumer claims, construction and building contracts, corporate and business organizations, environmental law, labor law, natural resources, business transactions/commercial law, administrative law and financial institutions law;

(1)(A)(iii) the maximum fees the applicant will charge for service as a provider under the ADR program; and

(1)(A)(iv) the judicial districts in which the applicant is offering to provide services and the location and a description of the facilities in which the applicant intends to conduct the ADR proceedings;

(1)(B) agree to complete and annually complete up to six hours of ADR training as required by the Judicial Council;

(1)(C) submit an annual report to the Director indicating the number of mediations and arbitrations the ADR provider has conducted that year; and

(1)(D) be re-qualified annually.

(2) To be included on the roster as a mediator:

(2)(A) all new applicants to the court roster must also have successfully completed at least 40 hours of court-approved basic formal mediation training in the last three years. This training shall be under a single training course from a single, court-approved training provider. The applicant must also complete 10 hours of experience in observing a court qualified mediator conduct mediation, and 10 hours in either conducting mediations singly or co-mediating with a court qualified mediator, or meet such other education, training and experience requirements as the Council finds will promote the effective administration of the ADR program;

(2)(B) successfully pass an examination on the ethical requirements for mediators on the Utah Court Roster;

(2)(C) agree to conduct at least three pro bono mediations each year as referred by the Director; and

(2)(D) be of good moral character in that the provider has not been convicted of a felony, a misdemeanor involving moral turpitude, or any other serious crime, and has not received professional sanctions that, when considered in light of the duties and responsibilities of an ADR provider, are determined by the Director to indicate that the best interests of the public are not served by including the provider on the roster.

(3) To be included on the court roster for qualified divorce mediators:

(3)(A) All new applicants to the roster of divorce mediators must also have an additional 32 hours of court-approved training specific to the skills, Utah laws, and information needed to conduct divorce mediation. This training shall be under a single training course from a single, court-approved provider.

(3)(B) All applicants must have a minimum of 6 hours of training specific to domestic violence and screening for domestic violence which may be included in the court approved 32 hour training referred to above.

(3)(C) New applicants to the court roster of divorce mediators are required to have acquired experience specific to divorce mediation. This is in addition to the 20 hours of experience required for the court roster of basic mediators. The additional experience includes having observed a minimum of two divorce mediations, co-mediating two divorce mediations and having been observed conducting two divorce mediations. Each of these includes debriefing and analysis afterward with a mediator who has Domestic Mentor status. The Domestic Mentor may charge a fee for this service.

(3)(D) The Director will maintain and make available a list of those mediators who have Domestic Mentor status.

(4) To be included on the roster as a Master Mediator, the provider must also have completed 300 hours in conducting mediation sessions.

(5) To be included on the roster as a Domestic Mentor, the provider must also have completed 300 hours in conducting mediation in domestic cases and completed a domestic mentor orientation.

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(7) To be re-qualified as a mediator, the provider must, unless waived by the Director for good cause, demonstrate that the provider has conducted at least six mediation sessions or conducted 24 hours of mediation during the previous year.

 

Court-approved Mediation Training Program Providers

Utah Dispute Resolution www.utahdisputeresolution.org/ 801-532-4841 Salt Lake City, UT   Cost $795 early registration $895 standard registration $995 late registration (full payment received less than one week prior to the workshop start date) $50 CLE fee (This workshop qualifies for 28 hours of CLE, which includes 2 hours of ethics.)	University of Utah Conflict Resolution Certificate Program Carolynn Clark (801) 585-9662 Salt Lake City, UT   $1700 each semester for a total of $3400
Susan Bradshaw 1745 West 7800 South West Jordan, UT. 84088 Phone: (801) 674-9847 Email: bradshaws@comcast.net	Innovative Training Solutions http://www.utdivorcelawyer.com/training.php Tamara Fackrell: 801-471-7271   Basic Training Cost $1050.00 Domestic Training Cost $950.00
	Utah Valley University Grant.Richards@uvu.edu Grant Richards: 801-863-8316 Renee Deighton: 801-863-7428 Orem, UT

 

1. The ADR Spectrum

(Source: http://www.agencydr.com/the-adr-spectrum)

 

1. Negotiation (forgotten but not gone)
2. Stop Using Mediation as a Golden Crutch!
3. Sometimes it’s more than warranted
4. It’s only mandatory if you let it be mandatory
5. For crying out loud!:
6. Do the work
7. Meet, discuss, brainstorm

 

• Like it or not, it’s “our divorce”

1. Prepare a position and/or proposal in advance of the meeting (works for mediation too, BTW)
2. Don’t fear your clients (more on that later)
3. Clients
4. Lincoln never even gave that speech.

“Discourage litigation. Persuade your neighbors to compromise whenever you can….” – Abraham Lincoln’s Notes from a Law Lecture.

1. Settlement is a means. Rarely an end in itself.

• Many new lawyers don’t know how to litigate

1. Can’t deal from a position of strength
2. Taught that settlement is the goal. Compromise for the sake of compromise
3. You’ve “failed” your client by not settling

 

1. How conceited
2. Not under your control
3. Some things are worth fighting for (including an eventual settlement)
4. Stop deceiving yourself.
5. If you wouldn’t want to settle on the terms offered, chances are your client won’t want to either

 

1. Non-crazy clients can sense when you’ve checked out

• You aren’t obligated to care about your client, but you are obligated to care about doing—and then actually doing—an honest day’s work for an honest day’s pay

 

1. Overcome the Resistance
2. Do the work.

 

Do the Work: Overcome Resistance and Get Out of Your Own Way

Steven Pressfield

 

The War of Art

Steven Pressfield

“value[s] denote the degree of importance of some thing or action, with the aim of determining what actions are best to do or what way is best to live, or to describe the significance of different actions.” – Wikipedia

1. The lost value of client control
2. Clients are looking to you for guidance
3. “Don’t impose your values on your client” is a damnable heresy
4. Explain your values to your client. Have the client explain his/her values to you.
5. Compare your values to the client’s
6. Rate your values compared to your client’s
7. Which values win? Why?

 

• “About half the practice of a decent lawyer consists in telling would-be clients that they are damned fools and should stop.” – Elihu Root
• The duty to lower expectations
• Lowered to what level?

2. Duty to educate the client:

 

1. about the law
2. about the limitations the legal system
3. about Pyrrhic victory (a victory that inflicts such a devastating toll on the victor that it is tantamount to defeat. Someone who wins a Pyrrhic victory has also taken a heavy toll that negates any true sense of achievement or damages long-term progress).
4. ‘Extricate yourself from the system, don’t try to vindicate yourself within it.’” – Peretz Partensky

 

1. Negotiation Books

My favorite so far, as a family lawyer: Start with No: The Negotiating Tools that the Pros Don’t Want You to Know

by Jim Camp

• principled (not a bag of tricks or a guide to hoodwinking people)
• unadorned, jargon-free
• accessible, understandable,
• retainable (you won’t forget everything you learned)
• immediately applicable (you’ll be a better negotiator as soon as you start implementing it)
• effective

SOME TOP TAKEAWAYS

“WIN-WIN” IS THE WRONG APPROACH IN NEGOTIATIONS

“Sure, win-win sounds good. That’s exactly why it’s so dangerous and why you have to be so careful.”

“Many negotiators play the win-win game with an implicit invitation to debilitating early compromise on the part of their unwary adversaries, who are, in turn, almost programmed into this fatal mistake by the mantra of win-win. Those smooth talking negotiators don’t compromise, but they demand you do. . . . Negotiating under the banner of win-win, you’ll have no way of knowing if you’ve made good and necessary decisions leading up to the compromise.”

GOOD NEGOTIATIONS ALWAYS START WITH “NO”

“[T]he best ‘yes’ in a negotiation is by way of ‘no’. The negotiation really does start with ‘no’ – not with ‘maybe’, definitely not with ‘yes’, but with a firm, clear ‘no’. . . . Because ‘no’ is a real decision that induces the party across the table into actually thinking about why they’ve just said ‘no’.”

“I cannot emphasize this point too strongly: ‘Maybe’ is the kiss of death for a successful negotiation. If you can’t quickly get past ‘maybe’ – and it comes in infinite varieties, of course – start walking, because you’re wasting your time (especially when dealing with the Japanese, who will drive the untrained negotiator crazy with ‘maybe’).”

THE CAMP NEGOTIATING TACTICS #1 – Know your mission and purpose

“As you set a valid mission and purpose in place, you will discover that the picture of what you are trying to accomplish becomes crystal clear and you eliminate all confusion. As a negotiator, once you have a mission and purpose you can control your emotions, you can make effective decisions. If every decision you make – even one that doesn’t turn out well – is in the service of a sound mission and purpose, you cannot go wrong, not in the long run.”

Your adversary in any negotiation must have vision before they will ever take action. I’ve said it before, I’ll say it again: no vision, no action. No vision, no decision. No vision, no deal that sticks. This is Human Nature 101.”

THE CAMP NEGOTIATING TACTICS # 5 – Identify the key pain point

“The clearer your adversary’s vision of his pain, the easier the decision-making process.”

“The vision has to be clear, but so does the solution you offer. You must not frighten or anger the adversary, you can’t appear to be lauding it over your adversary, you must nurture at all times. Painting the pain is one of the real arts of negotiation. You must wield the brush with the touch of an Old Master.”

“Pain is whatever the negotiator sees as the current or future problem. People make decisions in order to alleviate and take away this current or future problem – the pain. Put in these terms, what else would any negotiation concern?”

THE CAMP NEGOTIATING TACTICS # 6 – Build Your Budget

The “budget” in any negotiation is more than just money. The real budget consists not only of money, but of time, energy, money and emotion. Jim Camp’s formula for budgeting a negotiation gives time a value of x, energy 2x, “money” 3x, and “emotion” 4x.

Second Favorite: Negotiate to Win: The 21 Rules for Successful Negotiating

Jim Thomas

• insightful – elucidates how human nature affects negotiation
• packs a lot of learning in a single, slim volume
  • identifies various techniques – easy to retain and spot
• highly informative crash course/boot camp for effective negotiating
• clear illustrative examples of the principles and techniques taught

SOME TOP TAKEAWAYS

The Critical Rules

NO FREE GIFTS! SEEK A TRADE-OFF (“O.K., IF . . .”) FOR EACH CONCESSION YOU MAKE.

Give                                                    Get

1. I’ll agree to X . . . . . . . . . . . if I get Y in return.
2. I’ll agree to X . . . . . . . . . . . but then I won’t be able to do Z.
3. I’ll agree to [something other than X] . . . . . . . . . . . if I get Y in return.
4. I’ll agree to [something other than X] . . . . . . . . . . . but then I won’t be able to do Z.

Try to avoid saying “no” to the other side. “Yes, if” is better.

 

Krunch Early and Often

THEM: $300,000 over two years.

YOU: That’s way too rich for me. I need a better number.

That’s a krunch.* It’s nothing more than an indication (which needn’t even be verbal) to the other side that you’ve heard their offer and you want a better one. Some people call them flinches or winces.

* Krunch is both a noun and a verb. The etymology of the word is unknown.

It’s the only way to respond to an unreasonable offer. A clearly unreasonable offer should always be responded to with a krunch, never a counteroffer. Any counteroffer to a ridiculous offer is a free gift.

NEVER SETTLE ISSUES INDIVIDUALLY. SETTLE ALL ISSUES AS A PACKAGE—ONLY AS A PACKAGE—AT THE END.

The “it’s not over ‘till it’s all over” approach can cause some unhappiness on the other side of the table. Even when you’ve scrupulously avoided a firm commitment on an issue, your counterpart may think it’s settled. Don’t be surprised if you’re the recipient of an occasional “bargaining in bad faith” accusation. Relax. You’re on the sturdiest ethical ground. Since all of your concessions are tentative, you have every right to revisit any of them—repeatedly, if necessary—until everything is satisfactory and you give your final handshake. Until that moment, you haven’t agreed to anything.

Never say you’re at your bottom line unless you are.

It’s better to bring things up now, when you’ve got some leverage, than later when you don’t.

OTHER BOOKS

Perennial Best Sellers

• Never Split the Difference: Negotiating as if Your Life Depended on It

Chris Voss

• Crucial Conversations Tools for Talking When Stakes Are High

(note: there are two editions of this book)

Kerry Patterson

• Getting to Yes: Negotiating Agreement Without Giving In

Roger Fisher

 

1. Mediation (or “what happened to you, man, you sold out”)

Divorce Mediation Program

https://www.utcourts.gov/mediation/divmed/forms.asp

Divorce Mediation Forms

• Application to Excuse Mandatory Divorce Mediation

https://www.utcourts.gov/mediation/divmed/forms/APPLICATION_TO_BE_EXCUSED.pdf

• Income Survey Form

https://www.utcourts.gov/mediation/divmed/forms/LOW_INCOME_SURVEY_WITH_DOB.pdf

• Income Survey Approval Process

https://www.utcourts.gov/mediation/divmed/forms/Income_Survey_Approval_Process_Flowchart.pdf

• I Have Mediated My Contested Divorce: Now What? https://www.utcourts.gov/mediation/divmed/docs/After_Contested_Divorce_Mediation.pdf
• Either party can ask the court to excuse the mediation requirement. https://www.utcourts.gov/mediation/divmed/excuse/

 The Utah Courts website describes “the benefits of mediation” as including:

• You directly participate in finding solutions to the issues in dispute
• Mediation allows you to resolve your case more quickly;
• Mediation is less expensive;
• Mediation promotes relationships and you will end the process with a better relationship with your former spouse; and
• Mediation is less stressful than court.

Question: Are these statements true for you when you assist a client in mediation?

1. Mediation Types

Facilitative Mediation

• “original style” “traditional style” of mediation
• mediator “facilitates” negotiation by encouraging disputants to reach agreement
• aspires to “win-win” as opposed to “just get it over with”
• mediator may or may not share opinions or make recommendations, but usually does not

Evaluative Mediation

• mediators more likely to share opinions or make recommendations than in facilitative mediation
• evaluative mediation more likely to involve assessing the legal merits and/or reasonableness of parties’ respective positions
• more focused on “just getting it over with” and reaching an agreement the parties can tolerate, rather than a “win-win” deal

Transformative Mediation

• before the parties address the issues in dispute and seek agreement, first encouraged:
• to forgive, to restore harmonious relationships, and change their adversarial mindsets
• to recognize each other’s needs and interests.
• transformative mediators often have a mental health counseling or therapy background.
• “aims to transform the parties and their relationship through the process of acquiring the skills they need to make constructive change.” (https://www.pon.harvard.edu/daily/mediation/types-mediation-choose-type-best-suited-conflict/)
• also known as “wishful thinking mediation” (just kidding)

Narrative Mediation

• Narrative mediation is a relatively new style of mediation that focuses on creating a new “story” or a new “narrative” to understand and reshape the conflict.
• Often narrative mediators will have a mental health background.
• Narrative mediation is a very specific method of mediation; be sure to verify your mediator is trained in the narrative style.

(https://www.keepoutofcourt.com/mediation-styles/#:~:text=Narrative%20mediation%20is%20a%20relatively,have%20a%20mental%20health%20background)

 

Med-Arb

• third-party neutral serves as both mediator and arbitrator, or an arbitrator can step in after mediation phase terminates
• offers the parties the option of negotiating a settlement before or during binding arbitration
• if some or all issues are not resolved at the conclusion of the mediation phase, they move to the arbitration phase

 

Arb-Med

• third party neutral conducts an evidentiary hearing and drafts an arbitration award but does not disclose the award unless and until mediation fails
• arbitrator/mediator cannot change arbitration award based on what may be learned during the mediation phase.
• third party neutral conducts the arbitration session then attempts to mediate or turns the matter over to a separate mediator
• if mediation fails, the arbitrator unseals and issues the previously determined binding award

 

1. Collaborative Law (or “fails because it deserves to fail”)

• Couple and their respective lawyers “collaborate” on the couple’s separation or divorce to reach an out of court settlement
• collaborative process can be used to facilitate a broad range of other family issues
• disputes between parents
• drawing up of pre and post-marital contracts
• Parties and their respective attorneys meet together, on a recurring basis, not just once or twice.
• specialist professionals involved to avoid duplication of effort, improve accuracy, and save on costs arising from the typical “battle of the experts” in litigation
• child custody specialist
• divorce coach
• accountant
• appraiser
• financial advisors
• If the couple reaches a settlement, the attorneys draft a settlement agreement
• If an agreement cannot be reached, each party’s lawyer withdraws from representation and the case will proceed to trial

 

1. Questions/Comments