Binding arbitration, voluntary trial resolution, and med-arb proceedings in family law.

• Author: Price, Ned I.
• Position: FAMILY LAW

Mediation has become the most widely accepted alternative dispute resolution procedure in family law cases. (1) Although most mediations in the family law context are successful and result in a partial or total resolution, there exist scenarios in which the parties are emotionally incapable or unwilling to resolve their differences in this informal setting. As such, other dispute resolution processes, such as binding arbitration and voluntary trial resolution, should be implemented in appropriate family law cases either apart from or in conjunction with mediation.

This article will discuss what is known as a "med-arb" proceeding and how it can be used to promote an efficient and less expensive resolution of many family law disputes. In essence, binding arbitration or voluntary trial resolution can be used in conjunction with mediation to promote public policy favoring alternative dispute resolution so as to avoid undue expense, delay, and the unnecessary exacerbation of negative emotions, which commonly result in contested family law cases. (2)

In this article, mediation and binding arbitration (or voluntary trial resolution) are separately discussed as a backdrop to a discussion of med-arb. The med-arb procedure will then be discussed in the context of when and under what circumstances it can or should be used.

Mediation as a Preferred Methodology

Mediation is a process whereby a neutral and impartial third person acts to encourage and facilitate the resolution of a dispute without prescribing the outcome. The mediation process is informal, nonadversarial, and voluntary. It is an informal process intended to help disputing parties reach a mutually acceptable agreement. (3) The ultimate decision-making authority remains with the litigants who are encouraged through negotiation and self-determination to reach an acceptable agreement. The mediation process allows the parties to resolve their own issues instead of letting an unrelated third party, such as a judge or arbitrator, resolve their issues for them, which, although somewhat counter-intuitive, is our system's ultimate and final answer to a failed alternative dispute resolution attempt. (4)

Mediation is generally governed by F.S. [section] [section] 44.102, 44.106, 44.107, 44.401 through 44.406 (2007), Rules 1.700 through 1.730 of the Florida Rules of Civil Procedure, and Parts I and II of the Florida Rules for Certified and Court-appointed Mediators. More specifically, Rules 12.740 and 12.741, respectively, of the Florida Family Law Rules of Procedure govern family law mediation.

Rule 12.740(b) of the Florida Family Law Rules of Procedure provides: "All contested family law matters and issues may be referred to mediation." The permissive wording of the rule has, in effect, become mandatory as a result of local rule, administrative order, or otherwise. (5) It has already been implied that emotional impediments sometimes prevent a successfully mediated resolution. Scenarios exist when mediation has little chance of success due to the facts, litigious attorneys, nonengaged mediators, and litigants who find the contested judicial process therapeutic, or because of a combination thereof.

Effectuating a Successful and Meaningful Mediation

There are five major components of the mediation process: the parties, their attorneys, and the mediator. (6) All five "players" must approach the mediation conference with a positive attitude in order to perfect a meaningful result. A brief discussion of each participant's involvement is necessary in order to emphasize his or her role and responsibility.

The real parties in interest are, of course, the parties themselves. Most mediation in the domestic relations context only involves two parties. It is imperative that the parties be motivated to resolve their issues. All too often the parties lack the motivation to amicably resolve their issues because an attorney has "stirred the pot" for self-serving reasons; one or both of the parties view the process as somewhat therapeutic; or the parties have simply not been adequately prepared for mediation by their legal representative. The parties must be thoroughly prepared by their attorneys prior to the mediation conference. Unfortunately, it is not unusual for a party to appear at mediation with little or no preparation.

Attorneys must a) complete sufficient discovery prior to and not at the mediation conference; b) engage in a thorough preparation of risk analysis with their client prior to mediation; and c) have a positive attitude toward the process of mediation and encourage their client to engage in meaningful settlement discussions.

Mediation should not be a conduit through which discovery is perfected. Engaging in an exchange of discovery at the mediation conference shows lack of preparation, which is a disservice to the client and to the process itself. No attorney or client can adequately prepare for or engage in constructive risk management if discovery is incomplete prior to the mediation conference.

Unfortunately, some attorneys may only marginally engage in a mediation conference and defer to the mediator to engage in risk analysis directly with the client. Such a dilatory practice is lazy at best and dangerous at worst. Consider the consequences should the mediator be unskilled or simply be a "message carrier." Attorneys too frequently defer to mediators to analyze risk with their difficult clients instead of digging in and facilitating the...