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Mediating or Arbitrating Temporary Orders

The traditional start to a divorce case in Massachusetts is the filing of a complaint, service of a summons and scheduling of temporary orders. The temporary orders are designed to tide over the parties with custody and financial orders that maintain the status quo, or at least the peace, until the case is ready for trial. In Massachusetts a contested no-fault divorce cannot be scheduled for trial any earlier than six months after filing of the complaint, but in practice it usually takes more than a year to get a trial. Because we have a single calendar system now, the judge who decides the temporary orders is likely to be the same judge who presides at trial. For that reason, the decision on temporary orders can determine the entire course of a case and have a major impact on the outcome.

The decision to promptly proceed to temporary orders carries some serious risks however. It is not likely that meaningful discovery will have taken place before the hearing, the clients and lawyers are new to each other, and the tensions and drama attendant to the early stages of a divorce combine to make it more likely that the Judge at the temporary order stage could get it wrong. It is never clear at the outset which party will benefit from the riskiness of the procedure. It is almost impossible once a temporary order is entered by a judge to get it modified. So with a year or longer to a trial, a bad result at the temporary order stage could create undue pressure on at least one of the clients, to either capitulate and settle, or escalate the litigation to try to force a more favorable result. All of this comes at great expense both financially and emotionally. The family can be effected for generations by a hastily convened hearing on temporary orders.

Even in a case that will eventually go to trial, mediating or arbitrating at the temporary order stage can be quite beneficial. Consider the following:

  1. A settlement arrived at by mediation may, by agreement, not be filed in Court and therefore the parties will not prejudice the trial judge one way or another.
  2. Even if the parties wish to file the settlement in Court, the stipulation can be clear that it is without prejudice to a future contested motion for temporary orders. Since the trial judge did not make the decision and it’s a settlement, it will be much easier to modify if circumstances change and much less likely to reflect the point of view of the trial judge, so that the settlement negotiations, or the trial, if necessary, is much more of a “blank slate” process.
  3. The stipulation for temporary orders can recite a short period of time during which it is operative: perhaps 3 months or 6 months, to give the parties time to negotiate a comprehensive settlement after all discovery has taken place and everyone has access to all relevant information. In mediation there is no winner or loser, so neither party will feel they have an edge or an advantage, contributing to a better negotiating climate for final resolution.
  4. Typically a Motion for temporary orders will get 15 or 20 minutes of a judge’s attention in Court. The parties can devote as much time as they want to the mediation.
  5. If the parties are unable to agree on temporary orders with the assistance of a mediation, they can agree to arbitrate—in that case a neutral person is given the power by the parties to make the decision. There is a process that is called Med/Arb in which the parties make a good faith effort to settle their motions with the assistance of a mediator, and if it’s not possible, the mediator can be authorized in advance to just make a decision after a certain amount of time has passed. Such a process creates incentives to settle, but also gives the parties confidence that if they can’t reach an agreement someone will make a binding decision. The parties can agree in advance with an arbitrator to boundaries that will make the process less risky. For example, the arbitration can be what is called a high low arbitration. The parties set the boundaries within which the decision will be made. So the arbitrator can be authorized to set alimony but it has to be within a predetermined range, acceptable to both parties, or it can be limited to a period of time, such as three months or six months. None of this flexibility is available at a hearing on temporary orders before a judge.

If parties are willing to be creative there are many opportunities to come up with a dispute resolution process that is more client friendly and more flexible than what is available in the Courts. In my experience mediation most often considered only at the end of a case when it is close to a trial date. This may come from a misguided assumption that appearing too eager for a settlement is a sign of weakness. The opposite is true. Mediating or Arbitrating the temporary orders stage of a case make it more likely that the case will settle in its entirety. Clients and opposing counsel can see through posturing. Demonstrating thoughtfulness and creativity in reaching solutions will be respected by your opposing counsel and appreciated by your clients.

For more information on this subject, feel free to contact Howard Goldstein

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