Divorce Mediation Blog

A Year in the Books (and a good one at that) - Levine Dispute Resolution

Monday, December 31, 2012

By William Levine

As 2012 dissolves into 2013, we at LDRC can’t believe how fast our first year has gone, or how incredibly fulfilling it has been.  After opening our doors on January 17th, two (2) jammed open houses, lots of blog entries, our inaugural newsletter, website improvements -- including the launch of our mobile site; and a case flow that we could not have expected so early in our history – with many repeat customers we have much to make us grateful.  

With both of our locations (Greater Boston and Western Massachusetts) humming, our mix of mediation and arbitration continues to evolve.  With direct client mediation and lawyer-attended mediation predominating, our market for private dispute resolution in the nature of case management and decision-making as arbitrator or special master is established and growing.  Our work in advocating for a specialized family law arbitration statute continues, with support for that effort slowly growing.  

We continue to write, to teach and to train mediators.   We will issue our second newsletter early in the new-year, and our latest article will be published in the spring.  Of course, the direct dispute resolution work that drives it all goes on.  As we do it, we are mindful of the pressures of and challenges to our society, government and economy that recent and ongoing events present to all of us; and we are determined to remain a positive force in our community in 2013.  

Thanks to all of our clients, referral sources and allied professionals for your support and encouragement this year.   We look forward to continuing to service you, your clients, colleagues and friends in the coming year; and we wish you all a happy and healthy 2013.

And, please keep looking in:  our blog is just getting started.


Masters and the Probate & Family Courts

Wednesday, December 12, 2012

The Probate and Family Court appoint two kinds of “masters”. A master is a lawyer who holds hearings as an extension of the Court itself. One kind is a “discovery master”. The other is a “master, facts final”.

A discovery master aids the Court’s case management by helping the attorneys negotiate, and if necessary by deciding disputes over the exchange of information, known as discovery, in the litigation process. Each side may challenge the discovery master’s decision to the appointing judge, but they rarely do so. This is because the lawyers generally feel that the master process was fair and that a judge will likely address the issue in the same or a similar fashion as the master.

A master, facts final, hears some or all of the contested case, and makes a recommended judgment. The process follows the same rules as in court, unless the parties agree otherwise. One or both parties ask the Court to “confirm” the master’s recommended judgment. If one party disagrees, he or she retains the right to oppose the entry of the master’s decision and a court judgment. The Court retains the right to accept or reject the master’s recommendation in whole or in part.

Where parties cannot settle their matter by direct negotiation, by mediation or otherwise, the use of either kind of master is a way in which they can maximize control over their case, by selecting their own master, and by pursuing what is a mostly private proceeding that most often results in the agreed entry of judgment based thereon.

With our courts in crisis, this avenue is being followed more and more. Most every judge is happy to approve a selected master and to stand by for the master’s result. When faced with long delays and abounding uncertainties in the public trial process, due consideration should be given to the use of a master for all or part of a contested case.


Bullish on Alimony at the Fiscal Cliff

Friday, December 07, 2012

People in the business sometimes joke that alimony is the last tax shelter. Each dollar of alimony paid is subsidized by an absolute dollar-for-dollar adjustment to income, which at the top federal bracket saves the payer 35 cents. The tax burden then shifts to the payee, who pays taxes on alimony received, at his or her blended tax rate. For a $100,000.00 per year alimony recipient, if he/she has no other tax deductions (not very common), blended federal taxes total about 20%. Thus, the government loses 15 cents per alimony dollar. (At lower alimony levels, the payee’s tax rate drops and the treasury's proportionate loss increases.)

That brings us to the dreaded Fiscal Cliff, where tax rates and tax “reform” dominate the public discourse. By all media reports, increased tax rates for the “top 2%” are all but inevitable, while reform is also in the wind, now or shortly later. Reform seems likely to include at least some limitations (read, reductions) of itemized deductions such as home interest, local taxes paid and employer provided health care.

Yet, with all the talk of cutting tax preferences, we have not heard a word about any threat to the alimony deduction. Could this be because alimony payers are a formidable interest group? Is it that too many Congressmen pay alimony? Is it that alimony dollars are taxable to someone – the recipient? Maybe, the cost to the treasury is not great enough to garner attention. Whatever the reason, the alimony deduction, like the near-sacred charitable deduction, seems safe.

In fact, it looks like the value of the alimony tax deduction will increase in 2013 since, as the tax rates of alimony payers increase, so too will their alimony subsidy. If the top bracket resumes its Clinton Era 39.6% level, the value of the deduction for the high income earner will increase commensurately: a 13.1% increase! Where else do we find a tax shelter of increasing value in Fiscal Cliff America?


Pet Protection: A Judge Takes Action

Wednesday, December 05, 2012

The November 28th Patriot Ledger reported that Judge James Menno, of the Plymouth Probate and Family Court, had entered the first court order of protection for a pet, permitted under a recent statutory enactment signed by Governor Patrick. LDRC’s Chouteau Levine recalls from her years on the bench that serious abuse cases routinely included threats of and/or acts of abuse towards human victim’s pets. Abuse is abuse, whatever its manifestation. That Judge Menno made the first order of this kind in Massachusetts is both random and fitting. No judge has a bigger heart or inclination to use his bench authority to protect and benefit his litigants and their dependents.

Dogs have long been recognized for their forensic and security usefulness to police and military institutions, as guides for the blind and most commonly, as beloved family members. In an era in which offices, hospitals, therapists and even courts are using or experimenting with pets as aides to reducing stress their own uniquely stressful environs, the role and importance of pets continues to grow. We have seen this principle at work in our own practice at LDRC.

For restructuring families, the disposition of pets is a growing demand. Some states have dipped their toes into “pet custody”. We have not, which is probably appropriate. Pets remain “property” under our divorce framework. But, under Massachusetts law, people may now fund testamentary trusts to provide for care of a pet; and now Judges like Menno may enhance the security of these important members of our society.

Good for Judge Menno, and good for all of us.


Twinkies’ Mediation Reported

Wednesday, November 21, 2012

The Boston Globe greeted pre-Thanksgiving readers with the news that Twinkies are not yet dead. After Hostess Brands concluded that it could not survive negotiations with it bakers’ union, it asked the U.S. Bankruptcy Court for permission to convert its reorganization to a liquidation. Panic-buying consumed pre-fiscal cliff America, as Twinkies sales of $4 and $5 a pair were reported from online buying services.

But, the Bankruptcy judge pulled Ding Dongs from the brink. He ordered the ailing Hostess into mediation with the recalcitrant union, on strike since October, over threatened retirement and health insurance cutbacks. It is a time-limited reprieve: 24 hours to mediate. But the loss of Ho Ho’s, 300 reported jobs in Massachusetts alone and presumably the interests of creditors demanded one last effort, with the help of a skilled facilitator. So, the last firewall between a public starved for nostalgia (despite its presidential election decision – or maybe because of it) and its prized junk food is mediation.

Well, maybe not. The Globe also reported that the pending bankruptcy has drawn companies who are circling to pick the Twinkies brand from the bones of the dying Hostess, should she not survive the last-ditch mediation effort. Naturally, we are rooting for the mediator.


Litigation Attorneys and Mediation

Monday, November 12, 2012

As our practice develops, more of it seems devoted to lawyer-attended mediations, arbitrations and hybrids. When clients come to us with their counsel it is most often after the parties have experienced some litigation, and its attendant costs, delays and confrontations. They are either in the phase where the case has been pre-tried by the court and sits in the long queue for trial; or before the pre-trial conference itself. Occasionally, the case is in an earlier stage.

Why would litigation attorneys encourage or participate in mediation at any of these stages of litigation? It might seem to run counter to their own economic interest, and it involves relaxing some measure of control, something lawyers are loath to do. One reason is that some clients insist upon it, having heard from others that it may be an effective way of shortening what feels like an interminable process. Another is the wear and tear that increasing costs and the lack of any assured containment within the public court process imposes on lawyers and clients alike.

But, we find that the most common reason is that every week, more lawyers are realizing that it works! The lawyers themselves realize that they do retain a good measure of influence in this process. They see and experience that the mediation is fairly run; that everyone has their “say”; and, that in the end, no one is forced to do anything. Counsel also realizes that it is better to be paid fully for a process that bring early closure, than to run up an often uncollectible bill from a client after a long trial. Clients in the end are happier, and thus, more inclined to refer new clients to the mediation-friendly lawyer.

Mediators who do not welcome litigation counsel are cutting off a valuable source of business. Lawyers who refuse to mediate are short-selling their clients. The meeting of the two is good for all, especially the clients.


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.


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