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Divorce Mediation Blog

Online Dispute Resolution: Ready or Not, Its Already Here

Wednesday, July 19, 2017

Recently, we attended the Massachusetts Bar Association’s inaugural Dispute Resolution Section symposium, and the annual AFCC meeting, each in Boston. Both programs featured extended discussions of mediation involving a “fourth party”, as in, the two parties, the mediator and technology.

We expected the focus to be running divorce mediations with an absent party or two, attending virtually by Skype or FaceTime, or even the good old-fashioned speaker phone. Most of us have done a bit of this and addressed the limitations imposed by the lack of eye-to-eye contact and the sense that the person on the screen or behind the phone is actually checking his email, or her text chain.

More profound was an AFCC speaker’s demonstration of a Dutch program wherein parties log on to a website that guides divorcing parties through a progression of multiple choice questions that range from the prosaic (biographical) to the attitudinal (“you image your child living…”) to the transactional (“you propose to…”). The notion is that mediation does not even have to be synchronous. As one speaker put it, in essence: “the client can sit in bed with a glass of cabernet and ponder a response…and we don’t often have a chance to mediate with cab.”

The upshot of the Dutch notion of online mediation for family law is that the mediator may just be reduced to the “chat” person you get when you go on a retailer’s website: “may we help you select a model?”. The Dutch model will even assign a mediator to “run” the process, taking our theoretical descriptor of “facilitative” to a new low, or new high, depending on your perspective.

We get how for many divorcing couples, whose issues are fairly rote and shaped by state-mandated formulas, much resolution can emerge from hi-tech questionnaires. But we, who spend our days doing the intensely personal work of educating, observing, empathizing, encouraging and reasoning with emotionally fraught parents and spouses, have a hard time seeing how the application of this kind of dispute resolution will translate to the population whom we generally serve.

Another AFCC speaker pointed out that we who pride ourselves on the personal attention we devote, are already engaged in Online Dispute Resolution when we email, text, spreadsheet and utilize cloud based services to communicate with and assist our clients. So, maybe we have the best of both worlds already.

 

O Pfannenstiehl! Part 3: No Wonder We’re All Confused (Be Careful What You Wish For)

Wednesday, October 28, 2015

In our last Pfannenstiehl entry, we looked at the internal inconsistency of the Massachusetts Appeals Court decision, in which it found that the husband’s trust interest was a divisible marital asset, and that he can access its fruits, freely. But, when the trustees called the trial court’s bluff by refusing to give the husband money to pay the wife under the divorce judgment mandate, the appellate court blinked, concluding that trial judge was wrong under the law in enforcing her judgment with the coercive powers of contempt.

Putting aside the impact on the public in future estate planning, family law negotiations, divorce mediations and litigations, what about Mrs. Pfannenstiehl?

We have to assume that the trial judge adopted the wife’s theory the case, or some proximate version of it. The extremity of the result left the husband with little option but to appeal, which he did. But, in a strange irony, while he lost again on the substantive questions, he may have won a larger battle, when the Appeals Court vacated the contempt judgment. There was no remand. There is no re-trial. There is no ready way for the trial judge to make her judgment more enforceable.

So, what does the wife have to show for her efforts, time and cost?

She is a judgment creditor, which gives her 20 years to collect, under Massachusetts law. She is denied the normal enforcement remedies for divorced persons: either a Probate and Family Court contempt, with its coercive powers and streamlined procedures; or, for people with surviving agreements, breach of contract actions in the District or Superior Courts (she has no contract).

Might she sue on the judgment in a supplementary process action in the Superior Court? If so, she would have to bide her time and determine when the husband might have the provable resources against which to proceed. But how will she know? There is no known divorce order to the husband to disclose future circumstances, as there might have been with an “if and when” assignment order. And, she would have to fund the action.

Could the wife obtain some form of equity relief through an action under M.G.L., 215 ch. §6, asking the Probate and Family Court to create a supplemental judgment that obliges the husband to disclose and/or pay over any sums that he ultimately receives from the trust? If so, his failure to disclose may give rise to contempt exposure.

We doubt that she could bring a complaint for modification, because nothing has changed! The trustees stopped distributing on the eve of divorce, and post-divorce, they are just doing more of the same.

Might she negotiate, or even mediate a solution with the husband? Maybe. To avoid the threat of the wife laying in wait to enforce the judgment, and to avoid paralyzing the trustees, the husband might drive down the price to an acceptable level, and then pay off the judgment agreeably (with the trustees’ acquiescence, of course).

Or maybe the SJC will take the case, with who knows what result.

We will take a guess on that, in later blog entry.

 

Divorce Agreements: Where Have All the COLA’s Gone? Part 1

Wednesday, March 20, 2013

Until the mid-1980’s cost of living adjustments (COLA) provisions were a staple of Massachusetts alimony and child support settlements. People agreed on a beginning sum or sums for periodic support; they hoped to stay out of court for future modification actions; and COLA’s were a tool to encourage that result. It was clear that the Court could not impose a COLA, but the parties did so quite commonly, by agreement.

Most COLA’s provided that one or another Consumer Price Index (CPI) of the U.S. Department of Labor would be reviewed every year for increases over the prior year, or cumulatively, over a “base year”. Generally, if the payor’s earnings’ increase kept pace with or exceeded corresponding increases in the CPI, support would be raised by the percentage increase in the CPI. Otherwise, support would usually increase by that percentage, if any, by which the obligor’s pay increased over the same period.

For few unlucky support payers, the COLA did not compare his (it almost always was “his”) income to the CPI, and he became a guarantor of inflation, simply passing along a percentage increase equal to that in the CPI. Some of these payors became the horrified victims of the rampant inflation of the late 70’s and early 80’s (remember “stagflation”?). Forgetting to pass along mandatory COLA’s, or otherwise with head firmly planted in sand, led to staggering arrearages (read many tens of $1,000’s of dollars at times), and resulting contempt judgments.

Then, COLA’s died.

Ever since, support recipients with deals for flat sum payments have, for the most part, absorbed the risks of inflation on their cash flow, knowing that their only recourse is a new lawsuit, called a modification action, the cost of which would almost certainly outrun and financial gains attained. Yet, despite the flattening of inflation (about 2-2.5% per year since the 90’s), it is hardly non-existent for people with bills to pay. Consider that inflation at “only” 2.5% per year over 10 years works a 25% reduction in purchasing power, and the challenge is evident.

With the issue arising recently in recent divorce mediations at our firm, we ask the question: is it time to reconsider COLA’s?

 



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