I agree with your reasoning, Duane. Arbitration is always a process
decision that the four participants can make, but we find in my community
that the pull toward third party decisionmaking can often be addressed from
a process point of view if the lawyers are both fully aligned in affirming
the reality that a consensual decision is always stronger and a better
foundation for the long haul than a 3d party decision. I mean looking
closely at why the parties are so attached to their respective positions,
making clear--collegially--that a judge or arbitrator has less info than the
collaborative participants, not more--that the impact of reversion to third
party decisionmaking is to weaken, or gut, or even destroy, the confidence,
flexibility, and commitment to self determination that are at the core of
collaboration and long term post divorce cooperation between the parties.
The paper folding demo is good to use in this context.
If you do resort to arbitration, the protections you'd want everyone to
agree to at the front end include:
- everyone agrees on the person who will make the decision
- everyone agrees on the precise issue to be decided, which should be
defined as narrowly as possible
- everyone agrees that arbitrating this issue will not require the
kind of positional argument that could make it difficult or impossible to
return to collaboration
- everyone agrees on a simplified process for presentation of the
issue to the decisionmaker so that technical procedural rules do not take
over from substance and common sense (for instance, oral presentations?
baseball arb? etc)
and, when we lay all this out and then, collegially, point out that if
people can agree on all this, surely they ought to be able to agree on a
resolution they can both live with, it's rare in the extreme that people
actually elect arbitration, particularly if both lawyers are fully on board
with interest based resolution, the power of self determination, and the
disempowering impact of third party decisions for the future.
Are both lawyers sure that they are not fueling positional
reasoning----bottom line outcome advocacy? Would a mentoring session for
both lawyers with a skilled mediator like Duane help the lawyers recalibrate
the clients back to their original highest intentions? Were those highest
intentions clearly expressed and memorialized at the front end, to be used
at this challenging time as reminders of what the parties have committed to?
I certainly would go with a mediator coming into the process for a few
sessions before I'd give up and arbitrate. But it's always there as a
last resort.
Best, pauline
On 1/25/07, Duane Ruth-Heffelbower <duanerh@xxxxxxxxxx> wrote:
I provide both arbitration and mediation services to divorcing
couples. The problem with submitting the one sticky issue to
arbitration is that it guts the collaborative process, and is an easy
fallback when things go sideways. I would suggest bringing in a
mediator to work with the parties on that one issue, then returning
to a four-way. If you want to ensure leaving the room with a final
result, you can try arb-med. The parties present their case,
personally or via attorneys, the arbitrator reaches a decision and
seals it in an envelope. Then mediates. If no agreement is reached,
the envelope is opened and the award entered. Med-arb does not work
since the parties hold back in the mediation. Arbitration is, after
all, litigation without a flag behind the judge.
--- In CollabLaw@xxxxxxxxxxxxxxx <CollabLaw%40yahoogroups.com>, "Ann
Gushurst" <ann@...> wrote:
at
Dear brain trust,
A colleague and I are, for the first time, faced with the issue of
least one issue that seems intractable in a collaborative case.Falling
back on Pauline's book, we offered the clients the solution ofhow
arbitration of this issue.
Does anyone have any guidance to offer us on an agreement on this,
we would set the guidelines for the arbiter and how this can bedone in
an non-adversarial way?their
We were thinking of having each party state their interests, and
preferred solution. Having prior agreement on all documentaryevidence
(which we are not sure is needed anyway), not allowing crossguidelines
examination, and having the arbiter be guided by the ethical
as well as relevant law on arriving at a decision.entity
We are feeling the need of collaboration on our approach and would
appreciate any advice or experience on this that may be out there.
Thanking you in advance,
Ann Gushurst
(and David Littman)
Gutterman Griffiths PC
10375 Park Meadows Drive, Suite 520
Littleton, CO 80124
Phone: 303-858-8090
Fax: 303-858-8181
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