Arbitration May Save Your Reputation

GeorgiaLeeLang059The University of Southern California’s football program established in 1888 has been a powerhouse for decades, with almost a dozen national championships and 493 Trojan players taken in the NFL draft, more than any other university.

But their football prowess has been displaced by the scandal related to former head coach Steve Sarkisian and his sudden departure last August. In December 2015 Sarkisian sued the university for wrongful dismissal saying the school “kicked him to the curb” after he allegedly made profane statements in public while in a drunken state. He claims damages of $12 million dollars, maintaining that USC had an obligation to accommodate his “disability.”

However, Sarkisian’s lawsuit was flawed from the outset because when he negotiated his terms of employment he contracted to arbitrate any grievances he may have against the university. Sarkisian’s lawyers were opposed to arbitration alleging their client could not recall signing the contract, and declaring it to be unconscionable and unenforceable.

However, recognizing the futility of persuading a court that the arbitration requirement be ousted, Sarkisian’s attorneys have just consented to abandon their lawsuit and proceed to arbitration.

Given the sensitive nature of the allegations against Sarkisian and a hungry media, he has now avoided the potential embarrassment and humiliating details of his personal battles being bait for a media “feeding frenzy”.

Mr. Sarkisian may not realize it now, but a private and confidential arbitration may save his reputation and allow him to restart his coaching career. It is reported that he successfully completed a rehab program and is looking for new opportunities.

Lawdiva aka Georgialee Lang

 

 

 

 

 

 

 

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Mediator Attacked by Former Client

BarristerChild custody cases are notoriously difficult for clients and lawyers alike. Emotions run high and regrettably, our adversarial justice system only serves to escalate the conflict and aggravate the parties, on account of the psychological roller coaster of litigation and the drain on their bank accounts.

That’s why mediation has become so popular, particularly in child custody matters, where highly trained negotiation specialists work with parents and others to facilitate consensus and agreement for the benefit of themselves and their children.

While attorneys who deal with custody matters are sensitive to emotional eruptions and aware of the high stakes involved in custody litigation, mediators are usually sheltered from the anger of parents, who may become disenchanted with the mediation process or the results of mediation. “Settlor’s remorse” is the term used for a client who enters into a final agreement but later believes he or she gave up too much or didn’t get enough.

Litigation lawyers become skilled at determining whether their client is capable of settling or whether a client falls into the category of those who need a judge to make a decision.

Recently a lawyer/mediator in Springvale, Maine became a crime victim at the hands of a mediation client who was unhappy with his mediation. The client, Christopher Hall, age 48,  made an appointment with the mediator via text message, identifying himself as “Sue”. Arrangements were made for the attorney to attend at “Sue’s home” to discuss her services.

The mediator pulled up to “Sue’s” home and noticed an elderly man with a cane standing on the sidewalk near her car. As she alighted from her vehicle the old man suddenly rushed her and attacked her with a cane that was equipped as a stun gun, inserting the cane between the lawyer’s legs, resulting in a sudden shock to her inner thigh.

What the old man didn’t expect is that his former mediator would fight back, knocking off his long wig.

“Sue” aka Christopher Hall fled the scene jumping into a van driven by an accomplice. Acting on a tip the police identified Mr. Hall as the perpetrator and arrested him later that evening.

Because Mr. Hall’s trap failed, the planned assault of the mediator was aborted.  A police spokesperson said they were  unsure of Mr. Hall’s  actual  intentions. Did he plan to kidnap the mediator or worse, murder her?

He was charged with aggravated assault and held on bail of $250,000. His criminal record revealed previous convictions for domestic assault and terrorizing.

A frightening experience that could have ended badly, but for the woman’s decision to fight back. Of course, the notion of meeting a potential client at his or her home is wrought with danger. House calls should be reserved for regular clients who are well-known and female lawyers and mediators would be wise to refrain from personal visits to male clients.

Lawdiva aka Georgialee Lang

Why is Family Law Arbitration the Future for Divorcing Spouses?

No matter what news sites you frequent or what newspapers you read, inevitably you will see a plethora of articles decrying the state of family law, whether it’s in Canada, the United States, Great Britain, or a myriad of other countries where beleaguered husbands, wives, parents, grandparents and children are taking a stand against justice systems that do not serve their best interests.

The legitimate complaints are legion and run the gamut from too few judges and impossibly lengthy delays; to outrageous legal fees, and a system that fosters disharmony and conflict.

Family law mediation has played an important role in alleviating the worst parts of the family courts, but mediation, which requires two reasonable people willing to compromise on the issues between them, is not for everyone.

There will always be people who are unable to “give in” and would rather have a decision foisted on them, than agree to anything their estranged spouse might suggest. The mere fact that a proposal comes from their former partner is enough to compel them to reject it.

These are the people who end up in court in lengthy trials that have exacting costs: financially and emotionally. When custody of children is an issue, the battleground of the courtroom renders justice that is often demanding, demeaning and destructive.

Certainly it is true that courtroom justice is for the very few who can afford it. Our system of family law has priced itself out of reach of the average middle-class family.

As social reformers and parliamentarians search for a remedy for what ails our family law courts, many jurisdictions have arrived at the conclusion that mediation must be expanded, to include judicial mediation, and that arbitration must be implemented for those cases that need decisive finality.

British Columbia’s long-awaited overhaul of the 1979 Family Relations Act, the pending Family Law Act, codifies family law arbitration, a sign that B.C’s Attorney-General’s Ministry has realized that family law courts are the worst place for couples to resolve their divorce issues.

How does arbitration work? First of all, you need senior, experienced family law lawyers or retired judges with an affinity for family law, a group that is almost extinct. Insiders know very well that most judges would opt out of family law cases if they had a choice. Extensive training is necessary to learn the skills required, akin to those a judge brings to her courtroom.

An arbitrator must be a neutral professional who understands the purpose and goals of arbitration and is an expert in the rules of evidence, rules that are less stringent than those found in the litigation arena. Also important is a depth of knowledge of substantive family law.

The key to arbitration is not to turn the process into a facsimile of the court system. The cornerstone of arbitration is a simplified, expedited decision-making process where both parties are heard and swift, reasoned, justice is fashioned.

The parties and their lawyers choose how they wish to proceed. Often couples agree on a statement of facts, submit their evidence via affidavits, provide a summary of the law relied on, and deliver their material to the arbitrator. Sometimes the parties’ lawyers will request an opportunity to provide oral argument with time limits agreed to in advance.

Where the arbitrator is charged with deciding one or two discrete legal issues, the arbitration can be booked within thirty days and the arbitrator can and should produce a written decision within thirty days after receiving the parties’ submissions.

Family law arbitration is also ideal for couples who do not want their “dirty laundry” on display for the entire world to see. Our courts operate transparently, a value that is cherished in democratic countries; however, the Reasons for Judgment in any given lawsuit are published on the internet, often revealing embarrassing details of family life and finances. Did you know your neighbor Mr. Smith was a cross-dresser?

For couples who have tried mediation and failed, arbitration is the beginning of a future that eschews high-costs and high conflict, an option whose time has come.

Lawdiva aka Georgialee Lang

The Time Has Come: Family Law Arbitration in B.C. (Part 1)

Is there anybody who believes that our current system of family law is working? Just ask any family law lawyer. There are never any winners when husbands, wives, partners, or lovers take their grievances to a Court to be adjudicated. Never. Not even when a litigant wins and is awarded costs.

Canada’s judiciary, law reformers and legislators apparently agree. Madam Justice Mary-Anne Betton of Ontario’s Supreme Court remarked that the Canadian system of family law “at best does not work and at worst, is highly destructive to families.”

Recently, Mr. Justice Quinn in Bruni v. Bruni began his Reasons for Judgment with a feigned cry for help: “Paging Dr. Freud, paging Dr. Freud”, a provocative introduction to a bizarre family law case that was ill-suited for court intervention. Quinn J. in his ruling referred to “the roulette of family law”.

The Law Commission of Ontario released an interim report in September 2010 entitled “Voices From a Broken Family Justice System” where they reported that longer trials and rising court costs and legal fees were crippling a system which had no ability to deal with the intense emotion of family law cases.

British Columbia is no different. With government budget cutbacks, there are too few Supreme Court judges, too many court cases and a need for additional court staff. It all adds up to a most unsatisfactory model of family law justice. And I understand the Provincial Court family law system may be worse.

Mediation, both private and court-based, is presently thriving as an alternative to litigation. Others are using a collaborative law model where each party agrees to use their best efforts to settle, with the assistance of counsel and other experts, and agrees not to go to court. The penalty for court proceedings is the requirement that the parties engage new counsel who must start at the beginning.

What’s gone wrong? It’s very simple. The best case scenario in court is still accompanied by indecent delays, staggering legal and accounting fees, uneven judicial expertise, and an unwillingness on the part of some judges to preside over family law hearings, intense emotional distress, and a lack of privacy.

It can also be worse. A judge may refer to a litigant as a “gold digger”, a “liar”, a “thief”, or an “abuser”. All of these expressions can show up online in Reasons for Judgment, although perhaps couched in more polite language, but not always.

Friends, business associates and other colleagues are now privy to the details of your client’s financial circumstances, inability to control Junior, and even the details of the once secret sexual dysfunction. It’s not a pretty picture.

What has been ignored in British Columbia until recently is family law arbitration. However, B.C.’s new Family Law Act, expected to be in full force within twelve months, heralds a new day for family law litigants.

Why is arbitration better than litigation? Part 2 of this post will tell you why.

Lawdiva aka Georgialee Lang