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An Apology or Slap in the Face?

I have written before about the power and effectiveness of a sincere apology to help resolve a dispute. Now from West Virginia, a completely different way to resolve a dispute: a slap.

Stewart Altmeyer, a prosecutor in Kanawha County, was suspended without pay for one month for agreeing to drop a larceny charge in exchange for allowing the alleged victim to slap the defendant.

In a mediation, I (or most of my colleagues) do not allow violence to be the outcome of any mediation.

Still no No-fault Divorce in NY

New York is the only state that does not have a no-fault cause of action for divorce.  A cause of action is what needs to be proven for your divorce action to prevail.  Most states have an irreconcilable differences cause of action, where one side does not have to prove the other side committed some unsavory act such as adultery or cruel treatment.

New York currently has four fault-based grounds for divorce:

  1. Adultery (which is still a criminal offense in the Empire State and hard to prove since you cannot testify against your spouse)
  2. Cruel and inhumane treatment (so as to affect the physical or mental health of the charging party such that it is not safe to remain in the marriage)
  3. Abandonment (one spouse intentionally leaves the other or refuses sexual relations for more than one year)
  4. Incarceration of one spouse for more than 3 years

In addition to these, the parties can agree in a written separation agreement to live apart for one year.  The agreement must contain the terms of the separation and ultimately the divorce.  This is the closest NY comes to no-fault.

Davis v. Davis, a recent NY case stated that mere social abandonment was not sufficient to prove constructive abandonment.  The wife in this case did not plead sexual abandonment.   The appellate court saw the pleadings as nothing more than a way to get around NY’s lack of a no-fault ground for divorce and that the courts would not usurp the legislature’s power to determine law for the people of New York.

Is Hiring a Detective to Spy on Your Spouse Harassment? In NY, no.

The case of Anonymous vs. Anonymous (so captioned by the court to protect the identities of all involved) recently asked and answered this question.  This case involved a wife who filed for divorce in November 2008.  The husband filed a counterclaim, alleging that the wife was having an affair.  In February 2009, the court entered a protective order requiring the husband to keep 1000 feet away from the wife’s residence and place of employment (excepting visitation and church attendance). In August 2009, the husband hired a private detective to spy on his wife.  The detective followed her to a hotel where the detective recorded proof that the wife was having an affair with their priest.  The matter became a little more public when the husband told another priest during a confessional of the affair, causing the church to launch an investigation (during which the DVD was given to church officials).  While the wife did not contest the affair, she asserted she was being harassed and that her husband had violated the protective order by hiring the detective.

Family Court Judge Debra J. Kiedaisch ruled that “under the circumstances, the hiring of the private investigator, in and of itself, was not an unlawful intrusion upon the rights of the wife secured by the order of protection.”  She said that the husband had the right to “gather evidence up to the date of trial in defense of the matrimonial action and in support of his own counterclaims.”

“If the husband had the wife followed and recorded … for the purpose of gathering embarrassing material to deliver to her employer with the intention to cause her to lose her employment,” that might rise to “conduct which alarms or seriously annoys another person, and serves no legitimate purpose” — second-degree harassment under New York law — Kiedaisch wrote.

Stock Market Arbitration Filings up 43% in 2009

Filings for arbitration at the Financial Industry Regulatory Authority (FINRA), the self-regulation body of Wall Street, are up 43% in 2009 over the previous year.  Nearly all brokerage agreement specify FINRA arbitration as the only way to resolve a dispute between a client and broker or an employee and broker.  In years where the stock markets are down, arbitration filings tend to increase as investors seek redress for their losses.  The average time from filing to award decreased from 13.0 months in 2008 to 11.5 months in 2009 — a 12% decrease. Investors received a monetary or non-monetary award in 45% of the cases in 2009, up from 37% in 2008.

FINRA also has an mediation program.  Filings in their mediation program were also up (23%) and average turnaround time dropped 33% from 135 days in 2008 to 91 days in 2009.

I arbitrate cases for FINRA, among other bodies.

Are Judges and Juries like Referees and Umpires? Are Referees and Umpires Fair? Why lawsuits are crapshoots.

Analogies between a finder of fact (a judge or jury) and referees or umpires (the arbiter of a game’s rules) are often made.  It is open to debate whether the analogy firmly holds.  However, it is often interesting to discuss whether any “neutral” decider of an outcome (game rules or rules of law) have biases.

When a party enters the courthouse or arbitration room, each party expects (and hopes) that the person(s) making the decision as to who is “right” is being impartial and fair. It is certainly open to debate how to define fair, which is usually in the eye of the beholder.  Each time I went through arbitration training (to be a private judge), the class is asked to perform an exercise.  The class is broken up into groups of three people.  One person plays the arbitrator, one person the complainant and the other the respondent.  Each group is given the same exact fact pattern and the parties make their cases.  After a specified period of time, the arbitrator makes their ruling which is turned into the person running the training.  Every single time I’ve done the exercise, the distribution of rulings in the room fall out from one  end of the possible spectrum to the other with everything in between.

Why?  Everyone had the same exact case to argue.  Shouldn’t “justice” be consistent?  In reality, several things happen.  First, not every party presents the case the same exact way.  Some people are more effective than others, just as some lawyers are better skilled than others. In a real case, anyone who speaks (lawyers, witnesses) can have good and bad days.  Trials are performances.  Second, every single human being has biases.  We grow up with things we like or don’t like.  We have all had good and bad experiences with things, people and scenarios.  These create the filters through which we see the world.  There is also a theory many attorneys ascribe to which states that whomever the jury or arbitrators likes better in terms of attorneys and litigants will win the case. Likability trumps “rightness”.

Getting back to the sports (referee) analogy, there have been some recent studies showing bias in referees.  And I am not referring to the Tim Donaghys of the world who seek personal gain from their on-the-court rulings.  In the Netherlands, two professors discovered that soccer (the other football) referees are more likely to call ambiguous fouls on taller players.  A study out of England showed that referees favored home teams in their calls, especially in disciplinary sanctions (yellow and red cards).  From the world of Tae Kwon Do, referees tend to award more points to competitors wearing red uniforms.

In the U.S., college basketball referees tend to also favor the home team by calling fewer fouls.  The college refs also try to level the playing field for the teams by issuing “make up” calls, calling more fouls on the team in the lead, and trying to even up the number of fouls between the teams regardless of the aggressiveness of the level of play of each team.  A 2007 study also found that white NBA referees tend to call more fouls on black players than white players.

Even just looking at the games you watch, do you agree with each decision the referee or umpire makes regarding your team?  How about instant replay, the analogy of an appeal in court?  Does the referee get it right even when they have a TV with 20 angles and slow motion to look at each play?  Sometimes not.

So what does all of this tell you?  Try to resolve the case without having someone else decide it for you.  That’s what mediation helps the parties accomplish.  The outcome is on your terms and is unaffected by the biases of others.

Please contact me if you would like to further discuss how mediation can help facilitate a resolution to your lawsuit, divorce or family dispute.