Divorce Mediation Blog

Six Small Reasons to Celebrate Private Dispute Resolution

Wednesday, November 13, 2013

When we began our private practice of divorce mediation and family law arbitration, we debated whether or not our website should make reference to our personal lives, and specifically, the facts that we are both divorced, and married to each other. We concluded that we should, because we felt it relevant to our mutual decision to leave our prior professional lives (long-time divorce litigator and Probate and Family Court judge) to pursue new careers as private dispute resolution providers, exclusively. Time and professional experience have rewarded those decisions, and our personal life underscores their basis.

Here are 6 little reasons why.

They range in age from 9 years to 7 days (at first posting). They are our grandchildren, biological and various steps, but all ours. They share a heritage of grandparental divorces, not something to celebrate, but worthy of acknowledgement nonetheless: not because divorces occurred, but because of how they were carried out. Litigation-free, lawyer-assisted and never disconnected from the human and financial stakes, these divorces today allow grandparents from all over, in terms of geography and personal circumstances, to enjoy their young offspring in harmony with each other and with remarkably little tension.

Why are we thinking of this today, aside from the welcoming of our youngest? Because not everyone is so fortunate. Divorce litigation leaves a long and sorry legacy: diminished financial resources, eroded trust, eradicated sense of common ties and far too often, serial court cases. Even prolonged disputes that avoid direct court confrontations pose challenges to the re-structured families that emerge from divorce.

For sure, some cases just need court resolution for a host of reasons, but far more do not. The capacity of parents to resolve their legal differences civilly, despite their irreconcilable marital differences, may be trumped by irrationality, criminality or even novelty of legal issues. One thing is equally sure. Court solutions never yield enhanced capacity to get along; something that grand-parenting, without ratcheting up tension for younger generations, absolutely requires. The impending holidays highlight this truth.

Whether through mediation (facilitated negotiations) or arbitration (private and negotiated third party decision-making), divorcing parties avoid the worst of the excess that divorce litigation entails: exaggeration of differences in the context of winners and losers, played out on a public stage. As importantly, they have the chance to enhance respect for each other and for themselves, avoid the chaos that grips litigating families, cut financial losses and sometimes even enhance good will. For all of that, we embrace our work.

With 6 small reasons for gratitude, we are looking forward to the coming holidays.


“Trivial” Disclosures…Where’s the Balance?

Wednesday, November 06, 2013

We received an update this week from a LinkedIn discussion group that highlights a recent California Second Appellate District Court decision to vacate an arbitral award in a legal malpractice case. The defendants discovered, after the fact and after an adverse award, of course, that the arbitrator, a retired Los Angeles Circuit Court judge, who had disclosed his professional work with the defendant law firm, but had not stated that a partner of that firm was listed as a reference on an online resume, many years before (the synopsis called it a “decade old”). The commentator concluded “…the trend seems to be toward disclosure of all matters, however trivial, as well as the imposition of a duty of due diligence in identifying matters to disclose.”

We are challenged by this issue every day as family and divorce mediators and arbitrators. People come to us almost exclusively because they either know us, or know of us by reputation, (shhh, don’t tell our website/SEO experts, who like to feel otherwise) so the potential for disclosures, trivial and otherwise abounds. It is a sensitive matter in mediations, an uber-sensitive in arbitrations. We are surprised how few questions people ask about conflicts and potential conflicts; and we do our best to disclose anything at all that could possibly impact our objectivity – or just as importantly – the appearance of it. But, who’s perfect?

In a long career and with all kinds of significant and passing electronic contacts abounding, among cases, bar programs, educational activities and previous private dispute resolution engagements, the potential for “relationships” of all kinds is too great to quantify. Surely, we are the ones holding ourselves out as available competent and ethical service providers. We do and need to take our disclosures entirely seriously. And, people sometimes think us silly for the disclosures that we do make.

But, shouldn’t this responsibility be shared to some reasonable degree? The internet is equally available to consumers of our services, as it is to us. Anyone, anytime, can Google us, inquire about search results, or simply walk away. But to await an unhappy result, then suddenly discover the web, and complain, seems like a good idea run amok: appeal by ambush, perhaps. Didn’t the plaintiffs in the California case have some due diligence obligations themselves – before the fact?

We will work every day to get this right. But, how about some balance?


Divorce Agreements: Where Have All the COLA’s Gone? Part 2 Seven Reasons Why COLA’s May Help

Wednesday, March 27, 2013

In our last entry, we recalled the days when cost of living adjustments (COLA) provisions were a common feature of Massachusetts alimony and child support settlements; and then their virtual disappearance. Our recent experience in divorce mediation suggested to us that perhaps it is time to revisit this powerful but potentially risky economic device in settlements, known in Massachusetts as separation agreements.

Here we will focus on 7 reasons why COLA’s may be beneficial to divorcing parties:

  1. Inflation is real. Even though we emerged from a decade of high, sometimes double digit, annual increases in the cost of living, into two decades of low inflation environment, 2.0 – 2.5 percent inflation still takes a toll on a stagnant sum, be it a wage or a support payment. Ten years takes 20 to 25 cents off of every dollar received just by the passage of time. A COLA can reduce or eliminate this automatic support benefit cut to the recipient.
  2. Inflation may get really real. Just because inflation is low now does not mean that it will always be this way. Finding an economist in 1980 who would predict the relatively tame experience of the 90’s and this century so far would not have been easy. Now, some of them are urging us to expect renewed inflation pressure as the U.S. economy recovers and integrates the long-term experience of stimulus. If they are right, purchasing power for support recipients will erode more quickly.
  3. Payor exposure may exceed the cost of living. The payor who has experienced financial fortune in the form of income increases beyond the cost of living after divorce may risk support increases by exercise the Court’s modification powers that exceed inflation. For the reasons below, a COLA will reduce incentives of a support recipient to “roll the dice” by bringing a new law suit to increase support, especially in a high inflation environment, where he/she expects and experiences increasing support without new costs or risks.
  4. Support modifications are expensive. Some alimony and child support settlements are defined by ongoing percentages of the payor’s income, such as “The Husband shall pay 33% of his gross income, as defined, as alimony to the Wife…” These arrangements have the advantage of being self-modifying and do not require any investment in court proceedings, or private dispute resolution (mediation or arbitration), if properly drafted and followed. But, most cases settle with a flat sum for support, as in “The Husband shall pay $2500.00 per month as child support to the Wife…”, leaving the only means of modification negotiation or a court case for modification. The high cost of every court case is a powerful disincentive to a support recipient who seeking an increased support when the “only” known substantial change is inflation. Of course, court cases are expensive for payors, too.
  5. Support modification cases are time-consuming. All court cases take time. In the Massachusetts court system, a modification case is supposed to take no more than 8 months, according to rule; but that rule is often observed by its breach. While a modification by mediation or arbitration, is shorter and less expensive generally, they still suggest the need for counsel, financial statement preparation, information exchanges and time for deliberation and negotiations.
  6. Support modification cases are emotional. Many people emerge from divorce settlements, whether achieved by lawyer negotiation, mediation or litigation, emotionally drained and exhausted. Resuming confrontation of any level of intensity can be de-stabilizing and at best, unpleasant. The senses of being under attack and being victimized can resume with a vengeance, reducing productivity and undermining shared parenting.
  7. Support modification cases are uncertain. When one makes the decision to sue for modification, he/she does not know most of the attendant facts that may come into play, because the other party’s life may be largely opaque. Once an action is brought, it begs a counter-suit, which may be based in pay reductions, health concerns and perceptions, demands for income attribution (as in, “two years have passed and she hasn’t even looked for work”), and the like. In support modification cases, the Court is compelled to re-compute the Child Support Guidelines and hear all other relevant factors. The final result may be no increase, a minor one or even a decrease in the support sum.

COLA’s cannot prevent all modification cases. But, they can neutralize one powerful and incessant change in our economy, impacting the cost-benefit analysis that either side must make before beginning any action to modify.

In our next entry, we will explore the risks of COLA’s.


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