Divorce at Altitude: A Podcast on Colorado Family Law

The Downside of Med-Arb, Tips on Mediation & When Divorce Arbitration Works with Mike DiManna | Episode 47

August 19, 2021 Ryan Kalamaya & Amy Goscha Season 1 Episode 47
Divorce at Altitude: A Podcast on Colorado Family Law
The Downside of Med-Arb, Tips on Mediation & When Divorce Arbitration Works with Mike DiManna | Episode 47
Show Notes Transcript

Ryan Kalamaya and Michael F. DiManna, Esq. discuss tips for mediation, the difference between mediation and arbitration and the downside of the med-arb process.

In This Episode

  • Difference between a mediator and settlement master
  • Benefits of mediation and settlement in mediation 
  • How a divorce lawyer  or different parties can help in mediation 
  • Things not do do in mediation 
  • Difference between mediation and arbitration
  • Benefits to arbitration and good situations to use arbitration
  • Issues that arise in med-arb 


About Michael DiManna

Michael F. DiManna, Esq. handles complex domestic relations and family law matters. His practice includes dispute resolution, mediation, arbitration, and special master work. Michael has been appointed by both the Colorado Supreme Court and the Governor of the State of Colorado to serve on the 18th Judicial District Judicial Nominating Commission. He has been continuously listed in The Best Lawyers in America since 1991 for family law. In April 2001, he was listed as one of Denver’s Top Family Law Lawyers by 5280 Magazine In 2006, Michael was recognized in Super Lawyers as one of the top 50 lawyers in the state of Colorado and in 2013 and 2019, Michael was recognized in Super Lawyers as one of the top 100 lawyers in the state of Colorado.

What is Divorce at Altitude? 

Ryan Kalamaya and Amy Goscha provide tips and recommendations on issues related to divorce, separation, and co-parenting in Colorado. Ryan and Amy are the founding partners of an innovative and ambitious law firm, Kalamaya | Goscha, that pushes the boundaries to discover new frontiers in family law, personal injuries, and criminal defense in Colorado. 

To subscribe to Divorce at Altitude, click here and select your favorite podcast player. To subscribe to Kalamaya | Goscha's YouTube channel where many of the episodes will be posted as videos, click here. If you have additional questions or would like to speak to one of our attorneys, give us a call at 970-429-5784 or email us at [email protected].

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DISCLAIMER: THE COMMENTARY AND OPINIONS ON THIS PODCAST IS FOR ENTERTAINMENT AND INFORMATIONAL PURPOSES AND NOT FOR THE PURPOSE OF PROVIDING LEGAL ADVICE. CONTACT AN ATTORNEY IN YOUR STATE OR AREA TO OBTAIN LEGAL ADVICE ON ANY OF THESE ISSUES.

Ryan Kalamaya (3s):
Hey everyone. I'm M Ryan Kalamaya and I am Amy. Gosha welcome to the divorce at altitude, a podcast on Colorado family law. Divorce is not easy. It really sucks. Trust me. I know, besides being an experienced divorce attorney M also a divorce client, whether you are someone considering divorce or a fellow family law attorney listening for weekly tips and insight into topics related to divorce co-parenting and separation in Colorado. Welcome to another episode of divorce altitude. This is Ryan Kalamaya This week. We are joined by Mike DiManna, who is a mediator in a attorney down in Denver.

Ryan Kalamaya (48s):
Mike, how are you doing the morning ride and doing great. So I'm going to skip over. We talked about before recording, I'm going to skip over the kind of celebratory introduction and it said, I want to ask you, you know, how, how did you get into law? Like how did you decide you wanted to become a lawyer? And let's start from, from there. I

Mike DiManna (1m 7s):
Was the first born male to my family, a in Italian, north Denver, Catholic families. So my career paths was pretty much that I was suppose to go to the seminary and then become a priest. That's what happens to all first born in Italian Boyce. However, before I go in there, I talked my mother into letting me go to the university of Colorado in Boulder for just one semester. I said, mom, you let me do that for just one semester. I'll go down this other route. Well, after being at CU Boulder for one semester, the priesthood was completely out of the question now. And so since I had been doing debate public speaking and so on throughout high school, winning some state competitions and so on a, I decided that I give my, my shot at trying to become a lawyer.

Mike DiManna (1m 52s):
So that's how I got to law

Ryan Kalamaya (1m 53s):
School. You know, it's interesting to you. And I had never talked about that before, but my father, he was in the first graduating class for math above and grew up in Denver. And then we went to Notre Dame, which for a Catholic, you know, boy's, that was it. But He spent some time at the seminary and then he, he had a different realization. You had the realization that he liked girls. And so he left the seminary because of that. Fortunately he married my mom, but you know, it, it's always an interesting to hear people's stories. How did you get into family law? Well, because

Mike DiManna (2m 21s):
I was born in Denver, I had a lot of connections. So when I graduated from law school, I opened up my own shop. And so I took everything from wills and estates to traffic, a criminal family law, a and so on. And what became apparent to me after about the first year of doing a general practice is that it was really necessary to do a specialty. So at that point I did both criminal defense as well as family law. I got out of my criminal defense practice in the year 2000 and just concentrated solely on family law at that point. But here in the next few months, I'll have been practicing law for 50 years and all of that in law and certainly a portion of it in criminal law.

Ryan Kalamaya (3m 2s):
Well, I don't know if I will last 50 years, but that is impressive Mike, to do it at that level. And as we know both of us, I mean, it is emotional and it can be, you know, exhausting cause you are going through these emotional aspects. Well, how did you get into being a Mediation? And, and one of the main points of our conversation today is to talk about mediation arbitration and a neat ARB. So when did you start doing mediation?

Mike DiManna (3m 29s):
A partner and I own a law, a building, I think maybe you actually been there. I was on 17th and in the history a, I worked in there for over 40 years. It just left the last August to come downtown and be part of a larger office. In any event. One of my tenants was a lady by the name of Joe and Mick Williams. And Joan had started in mediation practice about two or three years before she got into actually moved into my building. And so she came up to my office one day and she said, look, you know, how would you like to join me as being a mediator and do some of that kind of work in addition to your litigation? And I thought, well, what the heck? I'd give it a try. So about 20 some years ago, I started out with Joan to do mediation and in my mediation, arbitration are totally a dispute resolution practice.

Mike DiManna (4m 12s):
It just kind of growing from there and it was what it is now. So, you know,

Ryan Kalamaya (4m 15s):
We engaged, you know, Mediation and, and done actually an arbitration. And, but it was, it was always curious to see how litigators kind of transitioned over. We've had Joan on a podcast. How long do you think it took you to become good at mediation? Because it's a different skillset. And I'd be curious for you to comment on the kind of different skills in differences between litigation and a mediation, but first off, how long do you think it took before you became actually like somewhat good at it? Yeah, it didn't

Mike DiManna (4m 47s):
Take long at all or mostly because people would be coming to me because they were aware of my litigation background. So they knew I was a litigate and as such, and now over a course of almost five decades as a litigator, there's not much, I haven't tried myself a sometimes I've won it sometimes I've lost it. So as a mediator, I'm able to bring that kind of experience into the mediation realm and say to people, Hey, look, you know, I understand where you're coming from on this. I appreciate your position on it. Let me just tell you, I had a case similar to that a few years ago or a few months ago or whatever, here's what happens. So bringing some of the benefit of that experience, once that word got out.

Mike DiManna (5m 27s):
So to speak to that, I was more of a settlement master than a actual mediator. So we can talk about the differences if you want. Then my mediation practice begin to grow and more and more people were coming to me as a result of that. And so that's kind of a thing.

Ryan Kalamaya (5m 41s):
Yeah. In your mind, what's the difference between us or a settlement master and a mediator as a mediator

Mike DiManna (5m 48s):
Should not express an opinion about the various aspects of the case, a settlement master. I will do that. And we will say, look, I understand what your position is. Let me just tell you what my opinion is. Just my opinion. I imidiate for people with a lawyer. So they have legal advice there, not relying upon me for legal advice. And so I can actually go into saying, well, look, I just don't think that's gonna work for you. Or that position is pretty weak. You better rethink it, or yeah, you do have a strong position and I can convey that to the other side now. Whereas I think to mediator really is supposed to refrain from kind of doing that. I tend to know in my own cases that I take the mediation, I want to hear this neutral's opinion about the position that my client and I are taking because mediation, of course, there's nothing binding in it.

Mike DiManna (6m 37s):
So if I've got a bad situation and it's sounding bad to now this third-party neutral mediator and they tell me that I'd rather hear it in that context and have my client here at, in that context in a judge or making a decision on the issue because there's not much we can do about it, but

Ryan Kalamaya (6m 55s):
Yeah, in, and I'd never heard the term special or settlement master. I mean, obviously there's the technical term of special master, but like you, I mean, I am a a hundred percent litigator and I really appreciate the mediators and I will seek out you being one of them in terms of, if you're unable to settle the case, it's always, you know, you can explain to your client that the value is that we get a neutral opinion. I'm about the week to strengths and the weaknesses. And so if we are, I mean, obviously you'd go into a mediation, tried to get the case settled, but if you don't, then at least you can walk away with some assessment of the strengths and weaknesses.

Ryan Kalamaya (7m 37s):
And when the mediator just shuttles back and forth and just passes along offers, it's like, I, you know, listen to attorney's, we can do that. And it, it's more of having another set of eyes on a, another set of yours and another perspective in sometimes I might need help with my client in terms of their expectations and that the client hearing it from somebody, the same thing that I've been telling 'em or disagrees with me in that that might be the what breaks the case. Yeah. Yeah.

Mike DiManna (8m 4s):
And I personally, in my own cases that I take to mediation because as you know, we have to mediate everything now, before we go to court, I do find that to be very helpful. And I know that as a mediator, I've had a lawyers come in and say to me, Hey, look, I'm having a difficult position with my client on this issue. I don't know what you think about it, but you could be of some help to that. That would help me get my client over the hurdle. And so I don't mind doing that. And we'll say to people, listen, I understand where you are and been doing this for a while. I've got the emotional part of it. And I understand how important this is to you, but you just have no chance. This is just not going to happen. Or if it does it, it would be an outlier. And I can almost assure you, the other side will want you to take, to take it for a look at it by a higher court.

Mike DiManna (8m 47s):
And now you're a case is going to continue on it. So maybe a little bit different approach, moving a little bit towards the center might help the case get cell. And you mentioned

Ryan Kalamaya (8m 55s):
Other divorce lawyers and you don't mind when they do that. And I'm going to ask you about what your pet peeves are as a mediator, but what are the things that you think divorce lawyers do the AR particularly persuasive or effective in mediation from a cell and master perspective or a Mediation perspective? What are the things that litigators do or parties do that you find to be effective? People

Mike DiManna (9m 20s):
That come prepared and have analyzed their case and know the strengths and weaknesses of it. I have a lot better chance of reaching a result in mediation than someone that's just walking into door with kind of a blank slate. And we're not really sure where we're going, where we even going to start or how we're gonna get there. And so oftentimes in mediation, I will say to one side or the other, sometimes both sides, how can I help you? What would you like me to try to help you do today to try to resolve this case? And so that can sometimes be helpful, but when people come in prepared and good litigators are always prepared, I believe, or, or they should be. And they've thought about where there they are and where they may have to go and they prepare their client for that.

Mike DiManna (10m 2s):
Look, we may start here, but we're going to probably have to go here to get the case settled. It just makes the process more effective and you get a lot more cases settled that way. Then people who either haven't thought through the, through their issues or they haven't been able to persuade their clients. They've not prepared their clients for what may happen in mediation. And you know, I'll go into a room and say, well, look, I've talked to the other side. They analyze it this way. I believe ABC. And sometimes a client will look at me like, what are you talking about it? They have never heard that you never even heard of it. And now I know I've got a little bit of a problem that I'm going to have to do some work on it. So the more prepared, the better and the more options people or prepared for also

Ryan Kalamaya (10m 42s):
The better, you know, so the mediator or at the CTLA, or they call her on a trial lawyers association and the convention. And I can remember who it was, but it, it was a mediator. And he said that what he really likes is to have the other party send, you know, a settlement offer and kind of, there were a memo, confidential memo, why they should settle at this particular and send that to the other side, as well as the mediator, but then also to turn around and send him the mediator in addition, kind of a supplement, which is essentially like the weaknesses. And you wouldn't identify that too. The other party it explicitly, but they, in his mind, they built some credibility because, you know, there's a reason that the case is going to mediation.

Ryan Kalamaya (11m 23s):
There's there are some issues. And when you recognize and appreciate those weaknesses, that it can result in a more effective experience for everyone. Yeah.

Mike DiManna (11m 34s):
I agree with that. A a a hundred percent. I liked to hear what the offer's have been, because I liked to know where to, where I'm starting from, because sometimes, you know, people will say to me, well, look what you just told me. I talk with my spouse about a month ago. And I told them I wasn't interested. Well, then I've wasted several hours. I mean, if I had to have known that the beginning, that, that really wasn't going to go any place, then at least I could maybe take a little bit different approach. So I liked to know what offers have been made. I certainly liked to know confidentially for sure where people are in terms of what they may be willing to agree to and just what they can't agree to. And then I can know some of that kind of stuff, because I keep my view of effective mediation is we need to share in each room.

Mike DiManna (12m 16s):
I keep people separate, except in very rare circumstances, we can talk about that in a minute. But if there is something that was at a party does not want me to say, then I will keep it to myself. Otherwise we're all going to hear the same stuff. So I need to know ahead of time, what I'm able to talk about and what I'm not able to talk about four as a simple example, his people, most, sometimes they say, Mike, look, we're probably willing to give on these three issues, but you know, it's only nine 30 in the morning. We've got all day. We really don't want to start there, but we just want you to be aware of that. I'll keep that to myself. But so knowing where people are, would they walk in the door is really helpful as opposed to walking into the room and saying, have there been any offers?

Mike DiManna (12m 59s):
No. Have you heard anything from the other side about what their position is on settlement? No. Well, where do you think I should start? Well, you go get an offer from them. Well, people are sometimes reluctant to make the first offer in a case, right? So it just works a lot better if there's been some interaction before people get into my realm. So that at least I know where the, where

Ryan Kalamaya (13m 18s):
They are, whether it be it. So peeves, what are the things that you do mind as a, a mediator? Well, when parties

Mike DiManna (13m 24s):
Come in to my office or completely unprepared for potential results, there really wasting their time and their money for a few of us. In fact, I can think of maybe only one or two others that are charging the hourly rates that I'm charging. I'm charging 3 75 an hour to do mediation. You can get it from the court mediation services for 50 75, a hundred bucks. So if all you're doing here is fulfilling a checking, a box that the courts required you to check. You don't need to spend your clients' money on me, or you can go somewhere else. So that's my biggest pet peeve. People just not being prepared. The other thing is, is that I also have a legal practice. So I ask parties that they're going to submit information to me, to have it to me a few days before the mediation so that I can take a look at it.

Mike DiManna (14m 10s):
Sometimes that happens most of the time. It doesn't, I'm doing a mediation tomorrow morning where I'm literally getting stuff today. So the rest of my afternoon is going to be occupied, tried to get ready for that mediation. And fortunately, I'm not doing anything else today, other than this podcast, as far as my own practice, his concerns I've got

Ryan Kalamaya (14m 28s):
The time. Well, we, we do appreciate your time. This episode is brought to you by our law firm. Kalamaya Gosha Amy and I describe our law firm as an innovative and ambitious trial team who pushes the boundaries to discover a new frontier as in family law or personal injuries in a criminal defense in Colorado. We currently have offices in Aspen, Glenwood Springs, Edwards, Denver, and Boulder. If you want to find out more, visit our website, Kalamaya dot law. Now back to the show, And I think back to a couple of the mediations we've done.

Ryan Kalamaya (15m 8s):
And you also do you offer the phone call or in advance instead of, or do you prefer to have materials submitted to you in writing? I know mediators can kind of fall on different sides of that. A coin more

Mike DiManna (15m 21s):
Is accomplished with a joint phone call and the reason that more is accomplished with it. In my view, one it's less expensive because a lawyer, his not preparing paperwork and then sending it to me. But secondly, I may have some questions that I want to ask while both attorneys are on the phone or things that they haven't told me about that I am interested in as far as trying to help people create a resolution. So for me, setting up a joint phone conference is much more effective than both sides submitting, written.

Ryan Kalamaya (15m 49s):
Okay. Well, in switching gears to arbitration, did you start doing arbitration as an arbiter? Was that just a natural progression with the Mediation and Joan MacWilliams asking you to, you know, help her out? Not really.

Mike DiManna (16m 3s):
Where are the arbitration angle came from? Was I was part of a group in Arapahoe county that started a special master program to assist the judges in some of their heavy caseload. And unfortunately for whatever reason, it just never took off. But that really put me in a position where I was going to be a decision-maker, although it decision maker with a review by a court. And so that's how that got started. And so once the word got out that we were part of that effort, then people would call and ask me if I'd be willing to arbitrate a particular issue or not. And so I've been doing arbitration work the probably the last 15 years,

Ryan Kalamaya (16m 42s):
I mean, arbitration, its a favored method of a dispute resolution buy the Colorado courts I'm in. So if the parties agreed to arbitration, the courts will generally put them in a to that. And when you can talk about a case that you are involved, where that happened, what are the cases in or issues rather in divorces that you think are particularly ripe or ideal for arbitration

Mike DiManna (17m 5s):
As a general course when parties reach an agreement in mediation, generally that agreement is not a complete legal document. People will prepare, what's called a memorandum of understanding, which is an outline setting forth. What there agreement is because nothing in mediation is binding unless it's in some form of writing and signed. So that memorandum of understanding becomes the writing and signed by the parties so that they know that they have an agreement, but you have to put that document into a legal form. So a court can review it. And there were things that you just don't occur in mediation that will need to be put into the final document, like full disclosure of financial affairs, no duress, some of those kinds of things.

Mike DiManna (17m 48s):
So I think that thee, so I put it in a provision in Mai mediation agreement with the party's consent, that if there was any disagreement about what the praise agreed to or the language of their final separation agreement, that I will arbitrate that issue for the party so that when people walk out the door in my office, they know that they're gonna have a final deal because even if there is a dispute between your attorneys about how something should read or somebody says, gee, that wasn't my understanding of our deal. Or I didn't agree to that, that they have a mechanism to create a final resolution. So the issues, so those are general issues, specific issues or sale of property. People generally do not specify how security documents or going to be drawn, promissory notes, rates of interest, default interest, some of those kinds of things.

Mike DiManna (18m 38s):
So people will say, look, we're going to attempt to agree on the form of these documents, but if we can't, we'll send it to Mike DiManna to arbitrate on what's going to happen. I don't like to arbitrate issues dealing with children. I do not like to do that. I I've done it, but it's not one of the things that I prefer. And it's mostly because I, I am biased in the sense that I think the best decisions for kids are made by their parents, not by some third party, but all due respect to the courts and even to me, so I don't like to do it, but I have done it. And I just don't think that it works as well as how are we going to sell our house or how should the promissory note to provide for the lump sum property division, read some of those kinds of things that more, the economic issues are a ripe for an arbitration

Ryan Kalamaya (19m 26s):
To. Yeah, and I, I don't disagree with you in, and, but I do no Amy, my partner, who do you know, she's just recently on a case in Douglas county and the judge essentially gave them two hours each. And I would I tell clients is when you've got parenting issues, you can say you were a good parents, but you know, you, you, you have to show, not tell. And it's really hard to just roll the dice and say, I'm going to put my kids in his livelihood in my family is a situation on the line and like a two hour kind of hearing. I mean, they might have not, they probably didn't sleep that well that day or that Knight. And you know, so if you go that route than, you know, arbitration, or you can kind of show, and it's one of the reasons for a period in a CFI and you know why that's a whole separate issue, but you know, the real estate man, I, I remember cutting my teeth when the great recession hit.

Ryan Kalamaya (20m 17s):
And I was just seeing all these slew of separation agreements that just assume that the property is going to keep ongoing up or that they were going to refinance more than they were going to sell it. But then they didn't put you in a provision on like when that would happen. And so that when the issues come up where the market changes and you can go to someone like you as an arbitrator to make that decision where the real estate broker might testify. And then the two parties, someone might be dragging their foot or feet because they want to stay in the house. That's something that you can really resolve very quickly. And I think is great for a resolving via arbitration if

Mike DiManna (20m 51s):
They agree with that because it's you and I both know we may have an issue regarding the sale of the house, but to get it in front of a judge, we won't have the issue very long because the house, the buyer is going to be gone. So, whereas an arbitrary, you know, you pick up the phone, I can schedule something usually within a couple of days, if it's a critical issue, like whether to accept an offer, a reject, an offer on make a counter offer or whatever, I can sometimes get something within a few ours so we can get right back. I have a decision that's made and the parties know where they're gonna go. So that's the benefit of it. Yeah,

Ryan Kalamaya (21m 22s):
For sure. So I just to reiterate what you said to me, and it doesn't have to be in an agreement that you actually mediate. We'll talk about meat ARB next, but I've definitely had agreements with a, another attorney and we've agreed to it on our own before mediation or after mediation, whatever the case may be. And we might say on the sale of the house or taxes, for example, that, you know, there's this one issue and we'll just specifically carve that out for an arbitrator. Like, you know, you, because we know that, you know, even though we reached this agreement, that, and there's not maybe a dispute about the language, but the, this is a new area that, you know, it was really applicable for or relevant for arbitration exactly how it was all the time.

Ryan Kalamaya (22m 3s):
So we meet ARB or, you know, there's definitely some ethical issues. I'm wondering if you could kind of explain, you know, meet are from your perspective, in some of the issues you have to navigate, you said in your mediation agreement that you've got a provision in their, can you just walk people through, meet AARP from your perspective? Oh, they

Mike DiManna (22m 20s):
Meet ARB is a sort term for a session where a party's attempt to mediate their dispute. And if they failed immediated, they will give it to the mediator to act as an arbiter. So we haven't been able to resolve this issue. We've tried to mediate it. We haven't come to a conclusion. Now we want you to act as an arbitrator. There are some problems with it. And one of those problems, his is that in, in arbitration, the arbiter was only supposed to make a decision based upon the information presented. So if I've been in a mediation for a half a day or sometimes a full day and people haven't been able to resolve and now they want to proceed to arbitration, I will do that, but I will make sure they understand that whatever was told to me in the mediation process will either have to be reiterated again in the arbitration process.

Mike DiManna (23m 11s):
And if it's not, I cannot rely on anything that I hear in mediation. Now, the advantage of using the mediator as your arbiter is that I do have a lot of background now in the case. So I know some things about it, where if you're going into a decision-making process, you may want to explain to the decision maker before you get to some of the issues. So from that standpoint, people can feel comfortable with, I have a familiarity with the case, but as far as what they want done, that's going to have to be presented to me a new, because I just simply can't rely upon anything I've heard in the mediation process as an arbitrary. Well, the other issue is a course that all the communication in mediation or a confidential.

Mike DiManna (23m 51s):
So, but sure can't be using Mediation communications in making my arbitration decision arbitrations, at least the arbitration that I do a R sometimes on the record, not always on the record, but sometimes they are. And again, I tell the parties that I'm a I'm bound by what I here in the arbitration process. So if they want me to know something, they need to make sure that they told me about it and not say, well, gosh, he knows about that because I've told them about

Ryan Kalamaya (24m 17s):
That in mediation. Yeah. And it's, I've always thought about the, how to reconcile that the information that you learn in mediation, and also just the way to reconcile the fact that as you said, most mediations are taking place in separate rooms, which is ex parte, right? You're not the various people will make an allegation. The husband will say something against the wife and she's not there to defend herself. It's then up to you in terms of interpreting that. And she might have an opportunity to respond to that in mediation, but in arbitration, you've got this tenant or a principal that everyone is going to be in the same room.

Ryan Kalamaya (24m 57s):
They're going to be able to hear what the other side says and then respond to that. And so those are obviously in conflict and there's different ways to handle that. You can agree. I've seen meet our agreements where the parties waive confidentiality, that obviously presents some problems. Cause you don't know what the other side was telling the mediator in their kind of a caucus or their sessions. So you could go in to arbitration, not really even knowing what the issues are as presented by the other side. So I'm just, it's such an interesting concept. I mean, in, in theory, it, it makes sense your using the same person in the idea behind that is that there's cost savings.

Ryan Kalamaya (25m 39s):
There was some familiarity, but then also you've got this legal construct that you, your supposed to, to forget what you learned during mediation. So how difficult is that Mike like to be, you know, in full candor or like how, I mean your human being, you have in a divorce lawyer at it for 50 years, but you are a human being and you know, so how is it that easy to just to forget what the person said? No,

Mike DiManna (26m 3s):
And that's why I don't like to do it. I really don't. I sometimes think that lawyers believe in it and they may be right that if there in a mediation session and they haven't been able to settle it using the same person who is there a mediator as there arbitrary is preferable 'cause they have some idea or at least if they're using me as a mediator, they have some idea about where I'm coming from, because I've said, look, I just don't think this is a very strong position. I don't think you're going to succeed with that in court. So if they set their client up that we're look, we're going to use Mike DiManna to mediate this, but we can't settle it. We want to use him as the arbiter. The client is going to fairly know in advance, where is going to go.

Mike DiManna (26m 44s):
And sometimes as a party in mediation, it's helpful because I can say, look, we've been doing this all day. You heard the mediator's position on our position. It can be a helpful solution, but it also, it can be a problem because you've kind of a Telegraph where you are already on the issue. So that's why I don't prefer it. I don't have any problem with arbitrating, what the parties agreed to terms of their agreement, those kinds of things, because that's pretty simple. It's a lot processes stream-lined but what I'm actually an issue was being brought to me for decision that I have not mediated previously, then it's like a, a, an actual port trial where we were, we have a binding decision-maker. So there are some differences.

Ryan Kalamaya (27m 25s):
Yeah. And I know that there's different variations or solutions to this. I mean, cause one thing about meat ARB is that it's kind of the wild west. There's no real protocols or universally accepted standards so that you've got these kind of not Renegade, but you've got these different protocols. So there's the overlapping or split neutrals where, you know, you've got one party or one person like you doing Mediation and somebody else doing in the arbitration. And it kind of reduces the concern about that, the communication issues in that information sharing. Then you've got the plenary where it's like, everyone is in the same room, so they do mediation. And then, you know, but they are it's that when the husband says something, the wife can dispute it, but then obviously you've got costs or, you know, not necessarily expense, but that, you know, people aren't going to be as candid in that circumstance.

Ryan Kalamaya (28m 13s):
And then it can also devolve into just kind of finger pointing. So, I mean, those are the solutions, but for you in a traditional mediation practice, its there not acceptable solutions or at least they have some pretty significant costs don't they? They do it. And

Mike DiManna (28m 29s):
I, I guess I would say there are solutions, but they are not preferred. So we try to get things done in mediation if we can. But certainly a or if not, and people will want a quick resolution than we can proceed to arbitration.

Ryan Kalamaya (28m 42s):
Well, I'm going to ask you in how we can cut this. Of course, Allie, if you don't feel comfortable, but you were involved in, in your marriage with Dorsey, it's a published case where media, you know, meet ARB was at ASU. Can you tell us a little bit, you know, about that case? Yes. The

Mike DiManna (28m 54s):
Dorseys were party's who had a fairly significant a state. They had a difficult time agreeing to virtually anything. The case ultimately though did get settled. And the issue that arose was with what we call the boiler plate, port parts of the agreement. There were two provisions in the standard provisions that we put in the separation agreements, one dealing with the jurisdictional aspects of where disputes would be resolved. And that said in the courts of the state of Colorado, under Colorado law, and then there was a separate provision, which said that if there was a dispute, the parties would proceed to mediate it. And if unresolved the mediation would then proceed to arbitration.

Mike DiManna (29m 36s):
So when there was a dispute and we could not get an agreement on it, Mrs. Filed a motion with the court to have the court resolve that dispute under Colorado law. We of course objected and said, there is an arbitration clause in this agreement and therefore the case needs to be arbitrated that's what then we one at the trial court level, that's what then went up to the court of appeals. And there was a footnote in that case where the court of appeals says, had the parties been more careful with their drafting. This is you may not have reached us. It wouldn't have changed our result, but you need to look for, in essence, you need to look at your boiler plate more carefully.

Mike DiManna (30m 15s):
So from that point forward, I have looked in, my brother

Ryan Kalamaya (30m 19s):
Played a more careful indeed. I mean, I think whether it was like a $40 million payment, according to the opinions. So there was some, you know, a significant funds at steak. And if I remember correctly from the opinion and I mean, I mean it basically the provision, the Meade are a provision said that it would meet Arbor. Arbitration was going to be for any dispute. But if it had said that specific disputes or like for example, real estate, then you're excluding everything else. So your, your saying we'll do a <inaudible> on the real estate and on the payment of the $4 million. So they could have fallen out. But it was such a broad brush that you guys, you know, it was contained in the boiler plate that, that resulted in the arbitration process.

Ryan Kalamaya (31m 1s):
Correct.

Mike DiManna (31m 1s):
And interestingly enough, that agreement was drawn by Mrs. Dorsey's attorney. So it wasn't my language, but as I said, I I've learned from that case. And if I want to limit, what's going to be mediated and arbitrated, I need to say it otherwise, anything that arises is going to go to that alternative dispute result.

Ryan Kalamaya (31m 20s):
Yeah. And I want to ask you about appeal and review, but you know, you just kind of said something that resonated to me and the in, I think a lot of parties going through divorce, we we'll, you know, often times divorce lawyers will Tel these kind of a war stories and kinda horror stories and be in it. But it, you, when you do have this inadvertently kind of a mistake or oversight, some pat things can happen and we've seen it where an unintended consequence can result in an appeal trial. And so that's why I think, you know, a lot of parties, they're just like, why are you so concerned about this or why this is a, not an issue. Like we we've got it, figured everything out on the parenting plan or a parenting schedule. Why do we even need a parenting plan?

Ryan Kalamaya (32m 2s):
You know, it just as a kind of an example, but it's those circumstances when you see really things go wrong, they can guide the agreement's and in particular or in the boiler plate. Yeah, exactly. And,

Mike DiManna (32m 11s):
And in this case, a Mrs. Dorsey has some creative lawyers that you want it to get to her out of a, an unpopular decision that was made by the arbitrator. But clearly Colorado courts prefer alternative dispute resolution processes. So even though we could've done a better job at the drafting, the result came out the way for you.

Ryan Kalamaya (32m 31s):
So do you know, it kind of put a close on things. So instead of having creative a lawyer's, which is always good, what happens? Someone is unhappy with an arbitration. What are there options other than kind of creative solutions? What's the they kind of standard solution?

Mike DiManna (32m 48s):
Well, that's why courts prefer arbitration 'cause it is final. The Colorado arbitration act has very few grounds that can create a reversal of an arbitration award. A there very specifically set out in the statute. They deal with things like, you know, the arbitrary had an interest in the case or stuff like that. And so when you walk out of an arbitration with an arbitration decision, that's going to virtually be the end of it. There will be very little that can be done about it. And so people should be careful about what they choose to arbitrary, what they should be careful about who they choose as there arbitrary, or they should understand. As in my arbitrations, I lay out the process is going to be followed the rules of evidence that will be applied.

Mike DiManna (33m 32s):
Some of those kinds of things so that everybody, his nose upfront, what is going to happen because once I put my signature on that award, the likelihood that a court is going to be able to do anything about it is not

Ryan Kalamaya (33m 44s):
Very great. I think a lot of lawyers in parties may overlook that because they are in their mind like a PC D M for example, a parenting coordinator decision maker. There is this procedure to appeal or go to the district court and have a review. I mean, under 14, 10, 1 28 0.5, there's a provision about a Denovo hearing on an arbitration for parenting. But I think a lot of lawyers just go into it. It just thinking, oh, I can just appeal this. It will be just really easy within arbitration. There's also, I'm sure you are aware that, you know, it's an interesting case law about whether or not you can hold someone in contempt in connection with an arbitration award when that arbitration award hasn't been approved or entered in as judgment by the district court.

Ryan Kalamaya (34m 25s):
So, I mean, there's so many interesting things, you know, Mike, I really appreciate it. And I know our listeners really appreciate you joining us and sharing your 50 years of wisdom and, you know, look forward to seeing you in mediation sometime in a future. But thank you again for joining us.

Mike DiManna (34m 41s):
Your welcome Ryan till Aimee. I said a lot. Well, yeah, thanks again.

Ryan Kalamaya (34m 45s):
Hey everyone. This is Ryan again. Thank you for joining us on Divorce at Altitude. If you found our tips, insight or a discussion, helpful, please tell a friend about this podcast for show notes, additional resources or links mentioned on today's episode. Visit Divorce at Altitude dot com. Follow us on apple podcasts, Spotify, or wherever you listen in. Many of her episodes are also a posted on YouTube, or you can also find Amy in me at Kalamaya dot law or 9 7 8 3 1 5 to 3 6, 5 that's K a L a M a Y a m.law.