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Divorce Mediation Blog

What's Good About Mediating Without Lawyers Present?

Tuesday, January 31, 2012

For many people, mediation with lawyers present is a contradiction in terms, as in "if we have a mediator, why do we need lawyers?"  In fact, mediation without lawyers present is the dominant form in Massachusetts family law practice, though not in commercial mediation generally here, or even in family law elsewhere.  While clients who choose to mediate without lawyers in "the room"  (in quotes, because much mediation with lawyers "present" involves "caucus-style" mediation, wherein the mediator shuttles between the parties, who are in separate spaces), many do, and all should, have lawyers with whom to consult between sessions.

But one of the attractions to mediation for clients is the desire to avoid the distortions in their own desired messages and the potential for exacerbation of tensions that comes with what otherwise be perfectly effective and well-intentioned advocacy by lawyers.  Some people would rather just speak for themselves.  Another motivation for non-lawyered mediation is that people perceive that they will more truly "own" their agreements if they are organically involved in the negotiations to close them.  Finally, many clients fear that the cost savings of mediation will be negated, or at least undermined, by having lawyers present.  (While true that lawyers add cost, they also add value in ways that many clients cannot anticipate in advance, when poised to enter into the sometimes mystifying word of family law.)

Two additional advantages for clients to enter into mediation without their lawyers on site are pacing and understanding.  Agreements that are the product of direct party-to-party negotiation tend to evolve at a slower and more deliberative pace, often resulting from periodic (1- 2 hours) sessions, paced out over the course of other life events.  As any divorce lawyer would confirm, coming to grips with family law issues is usually part of a larger emotional process.  People who are immersed in the shock/anger/grief/confusion of the early days of separation (and for some, not so early) need time to process the most intense personal crisis of their lives to date, and making prompt decisions at the expense of deliberative ones can result either in buyer's remorse (making a "bad" deal to get out of the discomfort of an unsettled situation) or being blinded/hindered by the emotional moment so as to be unable to recognized a "good" deal because of the confounding influence of negative emotions.

Mediated agreements that do not involve the "crutch" of having a lawyer present to formulate and articulate "positions" and demands, may be made with greater understanding for the people who must live the deal.  Especially if these clients are consulting with their lawyers between sessions, they have the ability to discuss their own interests in their own way, while still gaining clarifications, nuances and strategic guidance that help shape the ongoing process.   Yet, they have the time to question, to ponder, to re-think and to re-shape a settlement at a pace that may increase understanding and appreciation of the stakes, the concepts and the solutions.

But,there also advantages to mediating with lawyers present.  I will consider this in another blog post.

 

Different kinds of mediation

Monday, January 16, 2012

Author - William M. Levine, Esq

Many people don’t know that there are different kinds of mediation. For family law in Massachusetts, the predominant model is one with three people in the room together: the spouses and the mediator. Sessions tend to run in 2 hour segments over a period of a couple or a few months, a 2 or 3 of weeks apart, to permit time for reflection and interim work. People who do this often do, and always should, in my opinion and in the view of Levine Dispute Resolution Center LLC (LDRC), have lawyers, with whom they work between mediation sessions. People need to understand at least the basics of the law that applies to their matter, and they benefit from the sound advice that the mediator is not allowed to give to the parties.

But the second form of mediation is one in which the parties attend mediation with their lawyers. So, five people are in “the room”: the parties, their lawyers and the mediator. This process tends to occur in longer fewer sessions: often one or two, and sometimes 4-8 hours in length. The reason that I put quotes around “the room”, is that in lawyer-attended meditation, the parties sometimes (not always) spend more time in two separate rooms than one, with the mediator “shuttling” between the two, helping to prepare and present proposals for settlement.

Each process has its place and it own set of advantages. I’ll discuss those in a later entry.

 

Why I am here (Bill)

Sunday, January 01, 2012

Author - William M. Levine, Esq

I began the path to mediation and arbitration at Levine Dispute Resolution Center LLC in 1990. After a dozen years of litigating family law cases (two and a half years as a child abuse and neglect lawyer for the Commonwealth of Massachusetts and then as a divorce lawyer in private practice), I already knew that I would want to have a second career. Did I think it would take 21 years to get there? Maybe. It started when, I saw that the American Academy of Matrimonial Lawyers (AAML) was offering training in matrimonial arbitration and I immediately saw that there was a path to using the knowledge and skills of the law office and the courtroom in a way to simplify, streamline and apply intellectual skills and judgment to family law problems; and to thereby mitigate the impact of divorce and related disputes on families in distress. It also offered to the arbitrator the opportunity to work in a private setting, without the restrictions of the public sector, and to make a living in a way that is less tied to the extremes of the public litigation system, and its stressful impact on families – both the clients and the lawyers. I thought that I could blend this work into my litigation practice and both build a new one within, and eventually perhaps, segue to arbitration as my primary work.

What I learned, though, was that family law arbitration was a concept whose time had not yet come to Massachusetts. While some lawyers and clients understood its benefits and pursued them on occasion (and I was fortunate to have some of the find me), this was a field that was (and still is frankly) in its infancy, here, and mostly elsewhere. I never stopped believing in its benefits and potential. In 1995, AAML offered another avenue which had greater currency in the family law marketplace but to which I had had little exposure: mediation. This process had been anathema to the hard-bitten divorce litigation elite that formed the AAML in 1962, but forces within the organization had fought for the chance to introduce and teach this discipline to the formerly negotiation-or-trial-only-oriented fellowship. This training opened another personal window onto the resolution of family law disputes in a less adversarial, sometimes more effective and if successful, far less bruising process for families and practitioners alike.

From that point forward, I knew that I would have a second career. I just didn’t know when..

From 1995, while my law practice continued to grow as a traditional representation of clients in the negotiation, trial and appeal of family law case, I also pursued mediation and arbitration work. I continued (and still do) to pursue (and teach) professional trainings in both areas, and I served for many years on arbitration committees, including as national chair of the arbitration committee of AAML from 2006 to 2009, and for the state AAML chapter before and after. From all of this activity, I learned two critical things: 1) that these alternative dispute processes do work, often well and efficiently, for a broad variety of people and subject areas; and 2) that you just can’t build a sustaining and satisfying practice doing them within the structure of a litigation law firm.

So, after 30 years in the best law collaboration and partnership that any lawyer could possibly wish for, after three successful decades of negotiating, trying and appealing high end and complex family law cases – while pursing ADR as an interesting and satisfying adjunct – I find myself now jumping off the professional ledge into the world of fulltime mediation and arbitration practice. The fact that I am doing it while I am young enough to make it an energetic and, I hope, dynamic practice is a bonus, but one that pales next to the chance to do it with my life partner and wife, who is now my business partner, too!

Will we take part in pushing arbitration to the next level? Will we establish a high level mediation and arbitration firm that creates a new paradigm for such a practice? Stay tuned, and join us in pursuing this dream.!

 

Why we need a family law arbitration law statute in Massachusetts

Thursday, May 26, 2011

Family law arbitration is a concept whose time is way, way overdue. Arbitration is the private, consensual submission of a dispute to a person whom the parties select and regulate by contract, for a final and binding determination.

The parties pick their decision-maker, accounting for skill, integrity, convenience, cost and subject matter expertise. They choose their place. They set the timing. They define their own rules of procedure – or they may choose to apply traditional rules. They receive their decisions in a timely way. And, it is all private.

So, why isn’t every one doing it? For one, not every litigant can afford or wants to pay for a decision maker, when his/her taxes pay for judges to do that job. But mostly, I think that 1) most people simply do not know that this alternative exists; 2) many lawyers are uncomfortable with the prospect of the process (most have not tried it) because most available arbitrators whom they know well and trust are competing litigators, and selecting a competitor to arbitrate a case when you might be in court against the arbitrator that morning or the next day may be uncomfortable; and lawyers are leery of the fact that under existing law, all binding arbitration is truly final, and therefore, not subject to appellate process. So, feels risky, as it is the last stop for the client without further litigation recourse.

A few other states have addressed the second set of issues, by enacting family law focused arbitration laws that, among many other attributes, give lawyers and parties the option of preserving rights of appeal if they so choose. The American Academy of Matrimonial Lawyers (AAML) has created a model act for matrimonial arbitration and you can see it at aaml.org. The Massachusetts Chapter of AAML has adapted that model act to local practice and law. This proposal is linked here at Proposed Family Law Arbitration Act/ Let me know what questions you have about it and/or what you think about this.

 



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