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Meet the Common Ground Retired Judges FAQ

Judges Advisory Panel

The Judges Advisory Panel concept was developed about 4 years ago by David Musselman, one of the founders of Common Ground. David was getting frustrated at couples who despite getting opinions from mediators and lawyers would continue to threaten court if they did not get the settlement they wanted. For whatever reason there are couples that sometimes think that a Judge will give them a “better deal”.

Always trying to prevent couples from going the courtroom path, David decided to experiment with a mock trial process. One divorcing couple was having a very difficult time negotiating any kind of settlement and kept threatening each other that they would go to court. He chose 3 attorneys and/or judges and asked them to offer an unbinding opinion about how they would rule if they were a judge hearing the case. The results were very sobering to both parties on the different issues in dispute but it caused them to bend enough to reach an agreement. Since that time the process has now evolved into a very effective way of getting even the toughest cases to a settlement.

How it works:

First the parties will make every effort to reach an agreement on as many of the divorce issues as possible using either mediation of a combination of mediation and Family Collaborative Lawyers. Then a list of the issues not resolved will be developed. The parties will be asked to write a brief (with the help of their family collaborative lawyer assigned to them) as if they were asking a real judge to make a decision. The brief will be written in a way to try to persuade a judge to rule in their favor. If there is more than one issue that needs resolution then it will be possible for the judge to rule differently on different issues.

The briefs will be submitted to 3 individuals (that will be chosen by the mediators and collaborative family lawyers) that are subcontracted through Common Ground. This panel is made up of at least one judge and the lawyers on the panel will be required to have no less than 10 years family law experience. Each of the members of the panel will read the briefs and may not discuss the briefs with the other panel judges. All of their decisions must be made independently of each other. They will then present a list of questions that they might have about the content in the briefs in writing. The responses will be given back in writing. Then the 3-member judges panel will each draft an advisory opinion of how they would rule on the various issues.

The Results

There will always be one of two possible outcomes. Either there will be a unanimous agreement from all three judges or it will be split. The message to the divorcing couple will either be that one party is being unreasonable and needs to be reevaluated or that that the legal process is not black and white and that it could go either way which should motivate the couple to not gamble the outcome as they have now seen it could be risky. To date this process has never failed at getting couples to an agreement?

The party can either agree prior to starting the Advisory Panel process that the results will be binding which means that what ever the majority of the panel concludes will be also be the decision on the mediated agreement or they may choose it to be non binding and then comeback to the negotiation table and try to reach another agreement.