Episode 60 - Navigating Family Law Arbitration | Candice Komar & Shelly Grossman

Speaker A: Welcome to Law in the Family, a production of the Pennsylvania Bar Association Family Law section providing insights for lawyers about the practice of family law in Pennsylvania. The information shared during this podcast is for general information purposes only. Nothing in this podcast should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or listening does not constitute an attorney client relationship. The opinions expressed are those of the hosts and the POD guests and don't necessarily represent those of the Pennsylvania Bar Association.

Speaker B: Hello, I am, um, Jennifer Ryan, a partner at Boyd and Early Family Law in Montgomery County, Pennsylvania. You are listening to the Law in the Family podcast for the Pennsylvania Bar Association. We talk about issues and topics related to family law practice in Pennsylvania. And on today's episode we are going to be speaking with attorneys Shelly Grossman and Candace Komar about the arbit some changes and developments since the act was first put into Place in 2024. If you're super interested in what happened in 2024, the last Arbitration podcast is episode 45, and it was recorded on March 16th of 2024 with Carolyn Zach, Rob Bundy, and host Aaron Weems. I'm just going to do a quick introduction of my guests. Shelly Grossman is the owner of the center for Family Resolution in Westchester, Pennsylvania, in addition to litigation, is an arbitrator, mediator, and a parent coordinator. Prior to her current position, she was a Family Court Master in Chester county for approximately 14 years. Is that correct, Shelly?

Speaker C: Yep, a little over 14.

Speaker B: She specialized in equitable distribution and custody. There are plenty of articles on her website. She is a member of the Pennsylvania Bar association, the Chester County Bar association, and the past Chair of the Family Law Section of the Montgomery County Bar Association. Shelley State. Excited to have you. Anything you want to add about your bio or past experience?

Speaker C: I think you covered the parts. I'm still a member of the Montgomery County Bar association too.

Speaker D: Awesome.

Speaker B: Uh, Candice Komar is a partner at Pollock Bag in Pittsburgh. In addition to litigation, Candace is also trained in collaborative law, mediation and arbitration. She is the current Vice Chair of the Family Law Section of the Pennsylvania Bar Association. Her tenure as chair begins in January of 2027, so you'll hearing from her again in the very near future about her plans. Prior to that, she was the second Vice Chair, the secretary, and the Treasurer of the Family Law Section. She is a fellow of the American Academy of Matrimonial Lawyers. Candace, it's great to have you on the podcast.

Speaker D: Thank you.

Speaker B: Anything you'd like to add about your experience?

Speaker D: I've been Practicing law a long time.

Speaker B: I wasn't sure if you wanted me to mention that. So thank you.

Speaker C: Thank you for, um.

Speaker D: I actually am taking over the reins in July of July. I've been reminded after the July meeting, I start my presidency.

Speaker C: Perfect.

Speaker B: Thank you for clarifying that. And like I said, there will be a podcast in the very near future starring you. So we're excited for your tenure, especially because I believe next summer we'll be headed to Bermuda.

Speaker D: Yes. Thank you.

Speaker B: Yeah. Very exciting. Okay, Shelley, I am going to pass the baton to you. Maybe you can give us a little background on the Arbitration act and what changes we've seen very recently.

Speaker C: So, during COVID when we were all very busy learning to conduct practices via Zoom because the courthouse was closed, alternative dispute resolution was on everyone's mind, especially with court backlog. And it was there that Carolyn, Zach and me and a committee of, uh, attorneys from all over the state started to get together and talk about the possibility of proposing the Uniform Family Law Arbitration act and a Pennsylvania version of it. A lot of people put a lot of work into, and it passed in 2024. And what it really does is, at least for family law, we have our own arbitration act that addresses nuances in family law. Previously, there was always arbitration available, but it was under the revised Arbitration act, which is really much more of a civil statute and not really in tune with family law issues. For example, the Pennsylvania Family Law Arbitration act, it addresses domestic violence and screen domestic violence and child abuse issues. It requires the arbitrator to follow the substantive law in family law issues, which previously, you know, I think an arbitrator could do what the arbitrator thought was correct and appropriate, but maybe not exactly in accordance with the law. It talks about the issues that arbitrators can handle and those that they can't. For example, divorce decrees, determining the validity of a marriage, conferring adoptions, finding somebody in contempt. Those are certain things arbitrators can't do. But by defining that, it talks about all the things that arbitrators can do and then potentially recourse thereafter. And so that's kind of what the act does. It gives a lot of legitimacy to family law arbitration and hopefully enables that area to grow, especially as the court system gets backlogged. It also talks about specifically child related issues, and they're treated in a special way, as opposed to, let's say, equitable distribution. The court always has jurisdiction over child related issues. So when you're arbitrating custody or you're arbitrating Child support issues. There are some extra. I'll call it belts and suspenders, about how those issues in particular are handled, which should give the public and lawyers confidence in using arbitration moving forward.

Speaker D: Awesome.

Speaker B: So can you now just speak a little bit on the new rules that were enacted? Yeah.

Speaker C: So along with the statute, the Arbitration act, we now need some, um, rules, and they were enacted in April of this year. You'll find them in the 1960s. Uh, rule 1960 through 1965, and one domestic relations rule at 1910.4. And the purpose of those really talks about what court involvement there should be and how it should procedurally be implemented for such things as confirming arbitration awards. So, for example, in the child support realm, arbitration awards over child support need to be confirmed in the court system. And so it deals with that. It talks about if there's a dispute over compulsion of arbitration. So if there's an agreement in a property settlement agreement that calls for arbitration and one party refuses to arbitrate, then how do you petition the court? What's the process? All of these kinds of disputes pursuant to these rules go directly to a judge. So it's not going to a hearing officer, it's not going to a conference. The goal is for these to be addressed on an efficient, quick basis, which is aligned with what arbitration does. It's supposed to be quick and efficient. So those, in essence, are what those rules are for.

Speaker B: Wonderful. Do you suspect that as time goes on and more people become familiar and comfortable with arbitration, that there will be additional rules?

Speaker C: There could be. My hope is that they're not necessary. Hopefully there's enough because arbitration really is supposed to be outside of the court system. There's limited circumstances that the court should really be involved with arbitration matters. It could be enforcement. It could be confirmation. The hope is that it's not to overturn an arbitration award. Hopefully the arbitrator followed the procedures in the Arbitration act so that there's really limited court involvement. Understood.

Speaker B: Let's get down to some questions that I think Candace and I both have. What would you say in terms of the ratio of your practice? How much mediation do you have versus arbitration? Can you speak to maybe the differences and how they kind of feed each other?

Speaker C: I would venture to guess that I am probably at 5050.

Speaker B: Okay.

Speaker C: And I would say most people probably know listening to this. Mediation is a facilitation of an agreement. The mediator is not a decision maker, whereas the arbitrator could be deemed the opposite. You're there to really be the decision maker with that said many of us arbitrators always promote agreement because we think that's best for everyone. So we'll still engage and try to help people reach a resolution. So there can be some overlap between those roles, but they're really different. It is not uncommon for mediations when there's an impasse for those to turn into arbitrations. Sometimes we even call them med arbs. And you can decide to do a med arb. Hey, let's try to mediate this first. We'll agree to a few sessions of mediation, and that can be with lawyers. Like, mediation doesn't have to just be just the parties without lawyers. It can be the parties alone, it can be the parties with lawyers. And then if those few mediation sessions don't result in an overall agreement, maybe there's a few issues they can't reach an agreement on, then you kick it, too. It could be the same mediator to say, hey, you know, Candice, you're really familiar with these issues because you just heard us at mediation. Could you just make a call? Could you just call balls and strikes? We just want to be done. And that's the med arc.

Speaker D: And if I could say, it's really no different than what happens when you're working with a hearing officer. Right. Because they're going to try to conciliate the case. Most of the ones back on this side of the state do. I'm sure they do there. And they know the case. And then when you go into trial, they've kind of heard the lawyers, you know, advocating their respective positions. So I don't see where there's a big distinction.

Speaker C: Right. And the only thing that I think you just have to be aware of is if there have been caucuses in mediation, so where the mediator has met with one side exclusively, again to the exclusion of the other side, then the other side doesn't know what was said to the mediator. And if that mediator now turns into a decision maker, is there any concern that whatever was said is going to impact now the arbitrator's decision, or was something said that the other person didn't have a chance to respond to? When there are two hats being worn by the same neutral, that neutral should really ask the parties to waive any conflicts resulting from those kinds of communication. So that is a nuance in terms of going from mediation to art.

Speaker D: So that happens when we're conciliating with a hearing officer or even a judge. If a judge is doing equitable distribution or alimony in a more remote county, we don't have that process in Allegheny. Sometimes they do the one on one caucus and then they hear the case. And there's no rule about that, is there?

Speaker C: So I will say this just as an aside, if I can. Last month I just came off of the Academy of Matrimonial Lawyers Arbitration Training Institute program. And so there are lawyers, high level lawyers from all over the country. And when we talk about the practice in Pennsylvania, because I'm starting to feel like it is a Pennsylvania thing, they really had difficulty wrapping their brains around the fact that the trier effect is engaged in media and caucusing. Shouldn't that be somebody else doing that? So I don't know if it's just something particular about our part of the country where the trier effect is working really hard to try to help people reach a resolution versus the trier effect just says, okay, you're here. Put your case on. Yeah, and are really isolated from any of those negotiations.

Speaker B: Well, but, uh, even though in our state, every county's procedures are so different, even in the counties that we practice in on the eastern part of the state, I think some of the attorneys and. And some of those counties also are not very comfortable with that idea. But, I mean, here in Montgomery county, the judge and the hearing officer absolutely does whatever it is that they can, whether it's at like a short list conference with a judge or a settlement conference with a hearing officer to get an agreement that both parties have some control over together. Before we jumped on the podcast, I was telling Candace that, you know, recently I just handled an arbitration for a client that started out as a mediation because that's what they were most comfortable with, the idea of the mediation. And as time went on, it became clear we were not going to mediate to an agreement. But, you know, Shelly had all the information that she needed once everybody signed. Yes, arbitration is the way, you know, we're going to go. We had a case that probably would have taken years because we'd already mediated it, you know, move into the arbitration and then, you know, a binding decision by Shelley. It was. It was fantastic. So I think it's great that you can do both at the same time.

Speaker D: I wanted to ask you a question because I think it would be interesting for listeners. You know, when I attended your training a couple years ago, I was struck by the fact that there seemed to be pockets of the country where this type of practices is more prevalent. In particular, New York, New Jersey, I think Colorado. Did you have a sense of that when you did the most recent training

Speaker C: there was less openness. So when Candace took the academy training, one of the trainers who is from Colorado Springs actually said that he primarily does med arms. Like all of his cases are med arbs. They start as mediations and they turn and the impasse turns into arbitration. And I would almost call that not very different from what our procedure is in this part of the state, which is a settlement conference is built into the rules. Right? You have a settlement conference with the hearing officer before you ever have your trial with the same hearing officer unless you opt out this particular training. North Carolina, Georgia, Texas, New York, New Jersey, it is a foreign concept. And specifically in New Jersey, if you're going to do a med arb, they have a whole form, a waiver form that they have people sign. Because I have a New Jersey arbitration and I wanted to mediate an issue. We successfully did. But before you caucus with anyone, there was a whole like waiver form that the lawyers made everyone sign.

Speaker D: The other thing that struck me is, and this was particular when you mentioned New Jersey. The ah, New Jersey attorneys seem to be very sensitive about disclosure. Like who in your firm has used any of the experts? Have you worked with any of the other attorneys? And you know all that. And even if something comes up during the arbitration in your firm and you're aware of, they want you to another form of disclosure. And it was almost overkill in a way. But maybe there's something in their state law that makes it even more important.

Speaker C: They do, they have a really thorough disclosure form. With that said, disclosure, since you mentioned it, is an important topic, Like I'm always very careful to be as transparent as possible. If I think I know someone from someplace, I always disclose it. If I am using an expert in a litigation case and that expert is now on behalf of one of the parties, I make sure that everyone knows. Hey, but with that said, there are what, five experts, for example, that are available for, let's say business valuation. And I'm sure that either I or my partners have used each of those five in a case. So in some ways it's impossible to avoid them. But again, the parties need to know that if they're going to use you as their binding arbitrator. I mean, ah, it just highlights how

Speaker D: important it is when you let them know that you're familiar with the expert. Do you do that in writing or you do that in your agreement?

Speaker C: So the agreement to arbitrate I am one that I will include in the agreement to arbitrate how many cases I've arbitrated with each of the lawyers over the past year. So they know if I've had 15 cases with, you know, Tom Jones, Esquire, and none with the other side, the parties are going to know. And if that bothers them, then, you know, they can pick somebody else. Similarly, my agreement to arbitrate lists virtually every expert I can think of and say, hey, these are the experts either I have used or my partners have used in practice for individual cases. If you're going to use any of these experts, you're waiving a conflict. If you hire an expert later on that's not on this list, you have to disclose that. So I can disclose whether or not I have any issues with those experts.

Speaker B: So since we're talking about that agreement to arbitrate, and that's pretty much the beginning of the process, why don't you give us kind of a what happens next after you. Do you meet with the attorneys? Do you meet with the. Like, what's, what's your process?

Speaker C: Yeah, I generally don't meet with the lawyers until after the agreement to arbitrate is signed. However, the agreement to arbitrates the roadmap. Among the most important parts of that agreement to arbitrary are the disclosure that we just talked about. The second is, what's the scope of the arbitration? What am I arbitrating? And that is because the act, the arbitration act, requires the arbitrator to only arbitrate those issues that are within the scope of the agreement to arbitrate. If the scope is equitable distribution and only equitable distribution, then I better not talk about alimony or child support. So that scope and defining what that scope is is like the most important part of the agreement to arbitrate and arbitrator staying within their boundaries. And of course, can you amend that

Speaker D: as you're going along? If the parties or their attorneys would say, hey, we now have this other

Speaker C: issue, happens all the time, and you

Speaker D: just have them sign either an addendum or a new agreement, Right?

Speaker C: Exactly. Then once the agreement to arbitrate is signed and retainer is paid in my process, the next step is a preliminary arbitration conference with the lawyers. What are the issues? Where are you with discovery? Do you have experts? How much time do you need? So we start mapping out how much time do you need to do discovery responses, exchange expert reports, and then importantly, we talk about the procedure. What do you guys want to do? Do you want to go to a settlement conference first? Do you want to go straight to an arbitration hearing? If they want to go to an arbitration hearing, we then talk about, well, what do you want that hearing to be like? Is it going to be like a trial? Call your first witness, conduct direct examination, cross examination, and then I always tell everyone that's fine, but I like to do it issue by issue. Like I like all the experts to be there at one time. There's a business valuation issue, I want them all there at the same time. Real estate issue, have all the experts there on that issue. I will tell you, in this part of the country, I rarely have that kind of arbitration trial. But for like data separation, okay, when it's a he said, she said, you don't have much of a choice but to let me have husband testify, wife testify, the children testify. I just had it last month, so that's why it's on my mind. But oftentimes an arbitration hearing, if the lawyers agree, can be kind of a discussion, sort of like a settlement conference. So I will come in, I will have reviewed the pre arbitration statements. Everyone submits, in essence all their evidence and I will have reviewed it in advance. So I already know walking in the door, what are the issues, the documents you presented. And then I will lead a discussion. I have questions about this, that or the other. I give everyone an opportunity to ask questions of the other side. Once we flush out everything we need to talk about on that issue, we move to the next issue. Kelly, let me just stop you.

Speaker B: Just quickly. Uh, we were talking specifically about this being a super user friendly process. Do you give the attorneys and the clients the opportunity to do it over, zoom or in person? What's your preference?

Speaker C: Whatever their preference is. Okay, yeah. And I'll talk about user friendly. Let me just finish that. I call the process I was just talking about, I call the Mike Fingerman method. It's kind of particular to Pennsylvania because Mike Fingerman was the guy who really started doing arbitrations in Pennsylvania first. And it was a very eff way. Everyone has the opportunity to be heard, you know, in one day you can finish something that would take four days to try because it's not direct, it's not cross, it's not objections, it's, let's just get through the information because the arbitrators already looked at everything. No one needs to testify and say, state your name and your address for the record because there's no record.

Speaker D: Have you ever had, um, a situation where let's just talk about piece of real estate, Maybe it's commercial piece of real estate and you talk to the lawyers and go listen, do you want to bring the People in. Or do you want me to read each read report and if I have questions, then I can address it to the different experts. Or maybe they say, listen, this is not a big piece of it. You know, we don't want to drag it out and bring these people in. There's three smaller properties. Pick, just pick a number for them. Have you ever done it like that?

Speaker C: I have done it like that. And I won't necessarily just pick randomly, but. But I'm a big fan of having the experts submit a comparison chart. Like, I don't want to read a report and focus on what the experts, what they agree on. I want to focus on what they disagree on. And Jen can attest to that because in our arbitration, that's exactly what happened. And the experts sort of know, like, tell me where your differences are and why it was spectacular.

Speaker B: Because I think for all attorneys, I would say the idea of cross examining an expert witness or, you know, directing your own expert witness can cause some significant anxiety because you don't want to miss anything. I'm not trained like some of the experts that obviously like any of the experts we utilize. And Shelly said prior to this is how I'd like to handle the experts. Tell your experts to look at the reports and figure out where the issues are. Either put it together in a word document and then we're just going to go issue by issue as to, you know, where their differences are. And these two particular experts, that's not how they normally do things. They're used to, you know, banging heads. And it was spectacular. Something that could have taken the entire day, took all of, I don't know, 30 minutes, an hour, really. And it was great because our clients don't want to pay for an expert to sit there for eight hours. And we don't want to sit there listening to them talking about things that we just are almost clueless.

Speaker D: I always feel like one of the most stressful things about, about the trial that when I'm doing a trial that has nothing to do with the law is getting your experts lined up. Yes, right. Because it's so hard to judge how long things are going to take. And so you've got people on hold, you got people sitting in the hallway and it's like, oh, and they're burning their hours. So this is a super efficient way and it doesn't waste anyone's time. As Jen was talking, I had a question. I wanted to know, as you're going through certain issues and you are starting to crystallize what you want to do, do you look, let the parties know where you're leaning or do you give them a decision periodically as you're going through the day?

Speaker B: Yeah, both.

Speaker C: Uh, going back to the experts real quick. It is so user friendly that we schedule the time we're having. The experts.

Speaker D: Yep.

Speaker C: Like if the experts aren't available until 11am Then we conduct the arbitration proceedings till 11 and we take a pause and the experts are either there physically or we zoom them in like whatever is most efficient in the case Jen's talking about. Like, the experts kind of know. I've had lots of cases with these two guys and they sort of know that I like to focus on the differences. And so the one expert out of the bag said, here's our three main differences and this is where we are. And in that particular case, we settled that issue. And now, Candace, I'm going to answer your last. In that particular case, like we do all the time, I gave them feedback right there and then, hey, I think the cap rate is this. I think the reasonable compensation for husband is that. And then they can then go plug those numbers into the formula and turn the crank and out pops, oh, I think the business is worth $500,000. Can you guys agree that it's worth that? And we settled that issue in that particular case. And so, yeah, I do that. In all this week, I had a support issue. I had reviewed everything in advance. I had run support calculations in advance. I kind of knew how to resolve the bonus issue. Right. The cash flow problem. Someone's getting income and the bonus comes periodically and how do we address that issue? So that issue got resolved this week, for example.

Speaker D: Thank you for that. When you're doing your award, there may be some where the litigants, through their counsel, want to be a little bit more cost effective and they don't need a full blown explanation on every single asset. Do you have them, um, say that or is that part of your agreement and how does that work? In other words, do you full out analyze every single issue or do you have a discussion with people? Go, okay, now I'm ready to start writing. Where do you want me to spend the hours?

Speaker C: Yeah, and not quite like that. I always throw out the option of, do you want me to just draft an arbitration award without the findings and conclusions? And if they agree to do that, you have 14 days to ask me for my findings and conclusions. I sort of have to do some of them because I have to be ready. And the recent case I had the parties agreed on on all the Assets. They just couldn't agree on the percentage split and the amount and duration of alimony. So that one was a really easy one to just do. Here's the award, here's the alimony. And they did not ask me to write any further. The cost of arbitration. The most done, like, in, like, a week. Week, Right. Two weeks. The most laborious part of arbitration is the writing the findings and conclusions. Because people go to arbitration because they want to know, why are you finding what you're finding? Did you hear me? So we outlined wife's position, husband's position, and then our findings. And again, in my case with Jen recently, she knows, like, that was, I don't know, 60 to 90 pages of an arbitration award and expensive. And that's where time is. But parties can say, we know if they reach an agreement on the value of all the bank accounts, accounts. And I only need to write about someone's net income available for support or, you know, certain issues. And that's where the time gets spent.

Speaker B: Let me go back to, uh, just a quick question I had about scope. So when you said defining the scope, that that's the roadmap. What are the issues that you're able to decide as an arbitrator?

Speaker C: Yeah, let me start on the smaller end, because I know in some areas of our state, like, arbitration is not readily used. But let's just see if we can just think about how easy this could be. If parties said, for example, in a property settlement, agree if there are issues down the road on implementation and on interpretation and maybe enforcement, that we're going to arbitrate those issues, and now they have a personal property issue. They reach out to the arbitrator who's identified in the agreement, and they are up and running in, like, two weeks. They sign an agreement to arbitrate, and they can come without lawyers. And so they will be done in probably like a month. Crazy. Depending on what the issue is. So it can be little issue issues. I've had a bunch of unreimbursed expenses. You know, who owes, uh, who what money for either a marital asset or unreimbursed expenses. And so, like, I had one, they have five kids and they had five years worth of unreimbursed expenses. It's time consuming because everyone needs. To me, that was time consuming. The hearing, the arbitration hearing on Zoom was about three to four hours, but then they had the decision in about three weeks. Two, three weeks, and it was five years worth of this stuff. I think that's pretty Fast. I think that's faster than what the court could probably do.

Speaker B: Pretty fast. Yeah. I think we would all agree that's extremely fast.

Speaker C: And so arbitration, the design is that you sort of have your judge on call. We have a discovery issue, they send an email, we have a discovery issue. Here it is, they outline what the issue is. So the other side has noticed, the other side can respond. And if there's nothing else that needs to be heard, then they get a directive in one to two weeks. If it's something that needs to be heard, then a conference call gets scheduled and that can be in a week or two, depending on everyone's calendar. And then the directive comes out and then everyone can continue to move forward. It's amazingly efficient. No one's spending time drafting petitions and responses because you don't need it. Parties are always welcome to participate in the zoom or come in person. I don't like to exclude parties unless the lawyers agree they don't want their clients for present.

Speaker D: Shelly, can you explain for listeners what the directive is? And have you ever had issues having your directives enforced through the court?

Speaker C: Yeah, so I call a directive is like an interim, we'll call that like an interim order. So it's like after the preliminary conference, I'll issue the first directive. I'd like to number them, number one, number two, so we can find them. And it tells who needs to do what by when. If there's a discovery dispute, you know, whose objections are sustained or overruled, what documents are going to be produced by what date. So a directive is in essence an interim order. And at the end of the case, whatever the scope of the, whatever the issue is, the last order that gets entered resolving everything is the arbitration award. That's kind of the lingo. Mhm.

Speaker B: What was your.

Speaker C: That was a two part question.

Speaker B: I mean, I think what she was asking is, you know, in terms of the enforcement, what's kind of the process? If someone says, you know, no, I don't want to do that. How, how do you get that enforced? Is it through the court, through you? What's the, what's the process?

Speaker C: So an arbitrator can do enforcement to a certain extent. We can definitely do sanctions, like financial sanctions. Somebody fails to produce docum and then, you know, there might be a per diem fee, might have to do it by a certain date. Sometimes there's confidentiality issues whereby one side doesn't want the other side to see something. The arbitrator will review something in camera, for example. Okay. Any kind of Creative solution. But, yes, the arbitrator can do enforcement, but an arbitrator cannot find someone in contempt. And obviously an arbitrator cannot hold someone in jail. But we can issue sanctions, one of

Speaker D: the parties to a motion, and ask the court to schedule a hearing to enforce a directive?

Speaker C: Yes, that's part of the court involvement in arbitrations and the new rules that I mentioned at the beginning of this podcast that talked about the rules and how do you get to court if you need to in arbitration? That enforcement is one of those topics that's in the, uh, new rules of procedure. So, yes, if you ultimately need the teeth of the court for enforcement, then court's available for that, and an arbitrator's directive and award is treated like a court.

Speaker B: So, Shelley, I'm just going to take a step back. I know that for me, when in drafting property settlement agreements, if there are issues that I know may come up, like the sale of a piece of real estate, you mentioned personal property. Is it possible to put a clause in a property settlement agreement that says, any issues with, you know, enforcement of this property settlement agreement will go to binding arbitration and boom, here's the name. Everybody agrees. Is it possible for attorneys to do that so they end up with you or Candace or any other arbitrator?

Speaker C: Happens all the time. And I will tell you that when I was a hearing officer, I never wanted to deal with the personal property or any of those lingering issues, or the house is going to be sold and there's problems. I always urge people to name an arbitrator because it'll just get done.

Speaker B: Would you encourage them also to document how it will be paid for and give you the ability to reapportion costs of the arbitration?

Speaker C: Yes. And if anyone needs, like, form language, I'm happy to. To send anyone form language, just ask. It'll usually say the process will proceed through arbitration in accordance with the Family Law Arbitration Act. The parties will share equally the fee upfront, subject to reallocation by the arbitrator, among some other language. But that's the basic stuff.

Speaker B: I was taking notes just so I'm, um. Yes, thank you. And so in terms of other matters that you can arbitrate, can you arbitrate custody?

Speaker C: You can arbitrate custody now under the Family Law Arbitration act, but understand that on the custody side, again, the scope is really important. What is the scope of the arbitration and particularly in custody, you cannot agree, like in an agreement now, that if there's a dispute in the future, we're going to submit it to Arbitration, you would have to reconfirm the arbitration at the time the dispute arrives, arises. So you can't contract now that, oh, uh, in five years we're going to arbitrate this custody modification issue. It needs to be confirmed at the time the dispute arises. 1, 2. The arbitration is binding. However, the court always has parents patriot jurisdiction over children and child related issues and so the court can review what the arbitrator does. I have been making a record when I do custody arbitrator, I will maintain a record on custody so that when I issue my arbitration award in custody, if somebody then takes it to court, which has not happened yet, I at least have a record to support my decision and say why the decision is in the best interest of the children. On the child support front, it is similar. You don't have to keep a record. But what in your award you have to say all the reasons for your decision and your reasons for deviating. If you deviate, how much? So those are just little nuances.

Speaker B: Yeah. How much of your current arbitration practice or mediation is custody?

Speaker C: So there's a small excluding parenting coordination on arbitration. I have maybe just two or three custody, but that is more custody arbitrations than I've had in the past. I've been doing this work for like five years.

Speaker D: Mhm.

Speaker C: 20. I want to say 2017 or 2019. Anyway. So there are more custody issues now since the implementation of the arbitration act than before. Okay.

Speaker B: And small issues, the entire case. What are you seeing?

Speaker C: Both. I've done some small issues for people. I currently have one that's, that's a bigger issue, you know, a uh, modification of the schedule.

Speaker B: Okay, Candace, what are you seeing in the western part of the state as it relates to mediation? Arbitration?

Speaker D: People use mediation, but we have a cadre of really good hearing officers right now and they will agree to conciliate if both parties agree to buy half a day. They have to pay per privately for the use of the, the hearing officers. And they're really good. And so it's kind of, I want to say they're cheap and effective. So people have been using them. The scheduling becomes cumbersome sometimes because they get very busy or backed up. And then you do have to wait sometimes for decision, especially for a very complicated case. Rob Bundy does arbitrations out here and he's advertised quite a bit in our local legal journal. And before we had scheduled this call, I said, you know what's happening, Robert, you're really busy. And he said, not at all. It's really not taken off in this part of the world very much. And I think part of it is because we do have really good hearing officers. I also think our access to the courts is not quite as difficult as it is out in the east because of, you know, a little bit lower population. I think you guys are super busy and the judges are very slammed, and it probably takes a long longer time to get any type of scheduling accomplished.

Speaker B: I know that before we jumped on, we discussed the fact that most family law attorneys, I would venture to say most, maybe I'm wrong, aren't as familiar with taking a case to arbitration as they are with litigating a case to conclusion. I know that my experience is if I could arbitrate, if I could send every case to arbitration, I'd be happy with that, because I love to get cases settled and on to the next so that they can move on with their own lives. That's why I wanted to do this podcast, candidly, is I know that in our office, we're huge supporters of arbitration. I would just love to see it, you know, move across the state so that. Candace, I am absolutely certain that I would have you arbitrate something, and I could from this side of the state. Right. Like I can have anyone in Pennsylvania.

Speaker D: I say this about alternative dispute anyway, because, again, I've been doing this a long time. And I remember back in the day when I was very young, you know, mediators. Oh, those are people that aren't there. Must not be good in court. And it's all about good in court.

Speaker C: Right.

Speaker D: And as you get, uh, older and you start to see how the court process works, these judges aren't always right. And the law, just because it's the law doesn't mean it's the right thing. So as you start to get a little street savvy, start to learn the law, you start learning a little bit about business and economics. It takes a little bit more sophistication to really work on a settlement that works for everybody. And I find that really challenging. And I'll say, oh, anybody can pack up a briefcase and go across the street and try it. That's the way we all went to law and we did trial practice for. But to sit down and hammer out something and resolving different issues, like Shelley talked about in the business, and you're challenging different experts assumptions and their calculations, and coming up with something both parties can live with and be done, I think is great. One of the things about litigating is you might win and it might feel real good that day. And Then the other side is going to appeal and then you're going to be tied up in the superior court for maybe two years if you're lucky. And 90% of the time they're going to remand. Now you got a big receivable. Right. And now you're going to have hear that same issue talking about these same facts. And these people are not done. The kids are still affected because the parents aren't done.

Speaker C: Mhm.

Speaker D: And I just think that's not right. I think that we have a responsibility as family law practitioners to really try to help people reach a conclusion that's satisfactory and let them move on and have the least amount of scars cars to show for it.

Speaker B: I could not agree more with that. I say to my clients all the time, you guys can sit in court and just sling stuff at each other all day long and everybody walks out worse for the wear. Whereas the arbitrations that I've had with Shelley or mediations, I do. My client walks out not necessarily 100 happy, but empowered and ready to, to tackle the next step. And if the next step is they end up with Shelley again dealing with an issue, they have a good great taste for it in the beginning and then they'll resolve it, I think a little bit happier.

Speaker D: The other thing, Jen, which is really important because this is what we're all doing this for, is the money.

Speaker B: Yeah, right.

Speaker D: My collection rate for alternative dispute is exponentially higher than litigation and there's less waste. Right. Like I write off some of my own times, I feel like, oh, it took me so long to go through all those documents and I shouldn't have done that or whatever because I get neurotic before a trial and I have to touch every piece of paper on the, the file. So people are satisfied, they pay you and they tell others.

Speaker C: Mhm.

Speaker D: And so I always feel like there's good karma about that. Like if you do good work and people feel like they got a fair shake and you didn't take them for a bloodbath and everybody thinks lawyers are just Turners anyway. Right. And you just really get it done, then you're gonna be successful. I mean, I always feel things will come in the door and uh, God, uh, knows I've been very, very blessed. I think is a really good way to conduct yourself.

Speaker C: Yeah, agreed. It's certainly better to have satisfied clients than clients who are, you know, if they are long term litigation clients. And I'm not sure how satisfied they really are because they're never done. And it's not Good for families to be living in the anxiety ridden state of litigation. The worst what it's like to always have that threat of litigation over your head. Nothing feels better than coming up with a creative solution to that. The problem.

Speaker B: Oh, for sure. I mean, and I've had other arbitrations with, and I say this to, uh, my clients all the time, I'm a really good attorney. But then you get an attorney on the other side and you think, I

Speaker C: don't know, I'm not going to be

Speaker B: able to settle this. Like, I could settle it with this group, but now I can't. However, let's go to arbitration and come up with some creative. So that's exactly what happens, is that it's. Oh, okay. Well, I'm going to listen to Shelley or Candace. They know what they're talking about. They've been doing this forever. It is, is a wonderful feeling to walk out with an agreement or something that they've at least had some ownership over. But, uh, this has been an excellent podcast. I would love to do five more with the two of you. So you, you might be hearing from me again. I know we were hoping to, to get to some Hot Topics maybe. Like I said, we'll schedule another one. But is there anything that you guys want to leave the listeners with as we sign off? Candice, I'll let you go first.

Speaker D: Yeah, thanks. Uh, I think that if you're nervous about using arbitration, maybe consider starting small, like a piece of real estate. Maybe the arbitrator can work on that value for you or do like the medical expense unreimouse medical expense issue. Or maybe there's an accounting issue with use of a joint account. You don't have to jump 100% in if you're nervous about it. I would also say that don't be intimidated by going to arbitration because it operates very similarly to a conciliation in front of a hearing officer. So, so as long as you're prepared and you know your expert report and you know the issues on your case, then you can work with the arbitrator.

Speaker B: Awesome. Shelley.

Speaker C: Just to say that people think one of the downsides to arbitration is, well, my client won't have the ability to appeal. I think there are minimal, if any, appeals to especially the equitable distribution and alimony. Like in this part of the world, the judges aren't seeing these cases. They really don't know equitable distribution and alimony unless they came from the family law world. So if there's a judge who's on the bench who didn't practice family law and they're not hearing exceptions, then you know, the people who know the most about equitable distribution are the practitioners and probably the hearing officers in the court system. But again, their time frame, you might have one hearing officer in support and then you have a different hearing officer for equitable distribution. And that's backing up the entire right hand. Left hand is backing up the entire case. So it's just you get to pick the judge for your client and someone who has experience or expertise in a particular area that might really benefit the case. And the cost of giving up the appellate right is really nothing because cases really don't go up on appeal. Yeah, they just don't. The reality, I mean, and I the

Speaker B: comment and I don't know how deep to dive into this, but, you know, if you're unsure about the judge that you've been assigned, you can be sure that if you go to arbitration, you're going to have some control and it's going to be a process that's going to really, I think, benefit the family, as Candace said earlier. So thank you both so much. This has been wonderful. And Candace, we'll see you on the podcast coming soon. And Shelby, as always, it's been a pleasure. Thank you guys.

Speaker C: Thank you, guys.

Speaker A: Law and the Family is a production of the Pennsylvania Bar Association Family Law section. To learn more or to join the section, visit the Pennsylvania Bar association website@pabar.org and be sure to follow us on Facebook, LinkedIn and Twitter. And to catch up on every episode, join us at Anchor FM M. LawInTheFamily. A reminder that nothing in this podcast should be taken as legal information advice for any individual case or situation. This information is not intended to create an attorney client relationship. The opinions expressed are those of the hosts and the guests and don't necessarily represent those of the Pennsylvania Bar Association. Thanks for listening and tune in for future podcasts.