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Divorce Mediation Blog

GUEST BLOG: Facilitative Mediation Includes Informed Decision Making

Wednesday, August 17, 2016

[This letter to the editor of Lawyers Weekly highlights an important debate within the mediation community. We post it with the authors’ permission. John Fiske and Diane Neumann are giants in our field, and trained both of us.]

July 25, 2016

Letter to the Editor
Lawyers Weekly

Re: Facilitative Mediation Includes Informed Decision Making

Thomas Elkind’s Opinion of June 20 advances our understanding of mediation in distinguishing between facilitative mediation and evaluative mediation. In the latter, the mediator is almost a conciliator and the parties look to the mediator to advise them of the strength of their position. In the former, Tom says facilitative mediators spurn all techniques that seem to involve any evaluation of the parties even if it leaves them uninformed about the laws or procedures that might affect their positions. We disagree, maybe just a difference in emphasis.

Since 1989 we have taught over 1,000 people a different definition of facilitative mediation in our Divorce Mediation Training Associates programs. We believe facilitative mediation is informed decision-making, in which the mediator makes sure both spouses have accurate and relevant information about the laws affecting divorce and the procedures available for obtaining a divorce. The Standards of the Massachusetts Council on Family Mediation say “The mediator has a responsibility to the parties to help them reach an informed agreement.” In addition to encouraging the parties to, seek professional advice, “The mediator may give general information that will help the parties make their decision.” For example, the mediator may explain income tax and other differences between alimony and child support so that the parties know which approach may be more advantageous, or may tell the parties about how they could choose to divide a 401(k) retirement plan with a Qualified Domestic Relations Order, or inform couples married 9 years and 6 months that if they are married for at least 10 years there is a Social Security spousal share benefit.

As Tom writes, both types of mediators need to know the judicial process. Sharing that knowledge with both parties is not the same as giving legal advice to one party about what action should be taken. Part of the great satisfaction we derive as family mediators and mediation trainers is offering a process in which the clients choose their own particular solution with knowledge of the relevant law, sometimes deliberately offering something more generous that the likely legal outcome. It does happen.

Diane Neumann and John A. Fiske have been training divorce mediators since 1989.

 

Making A Bad Situation Worse: Rosenwassser v. Rosenwasser

Wednesday, August 10, 2016

In Rosenwasser v. Rosenwasser Massachusetts Appeals Court recently faulted a trial judge for denying a father’s request to “remove” his daughter to the State of Florida, dissecting her application of the facts to the two-pronged “real advantage” test that governs such requests by primary custodial parents, with painstaking care and convincing detail. Piling one critical point on another, the opinion yielded two inevitable conclusions: that the trial court ineffectively weighed and explained the advantages for the father in his requested move; and she over-weighted the hope that the mother’s recent efforts to kindle a relationship with the child would result in a benefit for the child. All signs pointed plainly to reversal.

Then, without explanation, but inexplicably calling it a “close call”, the Appeals Court remanded the case for more trial court hearings, more written findings, very probably another appeal; deferring any final decision and prolonging the agony for another family in limbo. A really fine decision turned bad: a victim of appellate irresoluteness.

Too often, as we learn again, litigation is a futile exercise in matters involving children.

Here’s why. The child was in utero when the parties separated in 2010. Shortly after the divorce, the mother became unavailable for mental health reasons. By 2012 a partial modification judgment formalized the father’s assumption of exclusive care for the child, a fact on the ground since shortly after her birth. For two of the child’s first three years, her mother was an infrequent presence in her life.

In August 2012, the father sought permission to move, for very strong reasons under the law. Trial did not begin until a year later and concluded five months after that. The trial court’s new judgment entered in July 2014. The husband’s appeal absorbed another 24 months, resulting in the Appeals Court opinion on June 17, 2016.

Just since the father filed his request to move child has aged from two to six years, fully two-thirds of her young life. With the Appeals Court’s tepid remedy, the clock continues to run, and it is fair to predict that this case will continue into 2017 and perhaps well beyond. The facts on the ground change daily, as the system grinds on, blind to the stress that this process imposes on a young child, whose road is difficult enough.

One bedrock principle that appellate law imposes on the trial court is that a judgment must logically flow from the facts found in the case. We wish that the Appeals Court applied this standard to itself.

 

The Return of DeMarco v. DeMarco: Contract Trumps Hindsight

Wednesday, August 10, 2016

Some months back, we commented on a trial court decision in the case of DeMarco v. DeMarco. The parties entered into an agreement for the ex-husband to pay a lump sum of cash, in return for a termination of alimony. It followed a discussion with the judge at the outset of trial, in which the court and the lawyers expressed a mutual understanding that M.G.L., ch. 208, §49(f) presaged termination of alimony by reason of the husband’s age. If tried, the wife would likely lose her alimony, with nothing in return. She chose to get something, by settling.

It turned out that the professionals were wrong (as were many of their colleagues), when the Supreme Judicial Court ruled in the Rodman, Chin & Doktor trilogy of cases that §49(f) would only apply to divorces decided after March 1, 2012, of which this case was not one. The wife then sought “relief” from the modification judgment, and contract; and the trial judge embraced personal responsibility for the wife’s decision to settle, in an extraordinary ruling. At the time we worried that the court’s principled decision, which we admired personally, was problematic because of its impact on the finality of agreements, and the judgments into which they incorporate.

The husband appealed and the Massachusetts Appeals Court reversed, recently, in a clear-eyed decision. Quite simply, the panel concluded, the lawyers and judge wrongly predicted the prospective nature of §49(f), and the wife chose to rely on that common misunderstanding in making her deal. In doing so, she did not just walk away. She demanded and received cash consideration for doing so. Thus, she did not rely on “the law” at all, but rather weighed out the risks and benefits of proceeding to trial and came down on the side of salvaging a bad situation. It happens every day in every court in America.

The Appeals Court correctly concluded that the wife’s interest in requesting relief was unhappiness at the result, with benefit of hindsight; and that her cause did not thread the extremely narrow needle of Mass. Dom. Rel. P. 60(b)(5). Litigants make deals every day because of judgment calls about the law’s application to their facts. The only thing that stood this case apart was that it addressed an extremely controversial aspect of a highly contentious new statute (Alimony Reform Act), and that an apparent consensus of judge and lawyers preceded its conclusion.

In the end, the settlement was supported by sound contract principles, unaltered by the SJC’s later “clarification” of the law; and the appellate court reversed. We don’t doubt the legal correctness of the Appeals Court’s decision, which does not reduce, in the least the gallantry of the trial judge’s action. Too few grab responsibility to themselves, even at the risk of being wrong.

In an interesting side-note, we have wondered here previously whether or not the ARA’s blanket statement, in “uncodified” §4(c), that the parties’ surviving agreement that there shall be no alimony is absolutely binding on the trial court, as it states, or if it is still subject to the court-made exception of “countervailing equities”, as expressed in 1976’s Knox v. Remick, and others. The DeMarco panel, at least, believe that this equitable construct survives ARA, as expressed in dicta, at the conclusion of its decision. In other words, surviving agreements to waive or terminate alimony are “almost impossible to change”, in the DeMarco judge’s words, and not absolutely binding as §4(c) suggests, at least until further word.

 



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