[Accepted for Publication by Family Mediation Quarterly Spring 2013]
By William M. Levine, Esquire and Hon. E. Chouteau Levine (Ret.)
Mediation occurs at many different stages of the family law life cycle. Parties may seek this process mid-stream or even late in a court action, when they have grown frustrated, discouraged or simply weary of litigation. Others see mediation as a first resort: a means of avoiding the costs and confrontation of the courtroom; and perhaps a way to preserve or even enhance the remaining good will in their relationship, as they move forward as parents and former partners.
Yet, even for people who view court as the last resort, there are a host of reasons why they need to know, and to appreciate, that the simple pendency of a court action may be an essential adjunct to their private resolution efforts. Sometimes the lack of this information will make no difference in the party's experience or outcome at all. On occasion, though, the result can be negative, even profoundly so.
The stakes of this discussion are important and broad. They implicate the following basic interests of every family law mediation client:
(a) What protection do they have from each other's dissipation of assets, or other prejudicial financial changes, while the mediation is underway?
(b) Can clients be comfortable that they will receive all of the financial information that they need to make knowing and voluntary settlement decisions?
(c) Will the parties' alimony, child support and enforcement rights be altered by the passage of time during mediation when a complaint has not been filed and served?
(d) Will divorce statutes and rules cause unwanted delays if the mediation does not result in settlement, when a complaint has not been filed and served?
These questions suggest a critical "need to know" for the parties, and they have a proper place in most if not all family law settings. The answers will lead to the conclusion that some mediation clients should, and in some cases will need, to file. How, then, does the mediator address this seeming dilemma: his clients are mediating because they do not want to deal with lawyer-led litigation; but for reasons that we will discuss, they should knowingly decide if their mediation can safely proceed without this minimal court support. We do not advocate for unnecessary court activity, nor do we believe that a pending court action is always necessary or beneficial. But, we also do not believe that filing of a legal action and service of process are necessarily hostile to mediation work; and they are sometimes simply necessary.
The mediator has a constructive, and perhaps proactive, role to play in helping clients to navigate this difficult passage. It is just one of many reasons to encourage lawyer-supported mediation, but some mediation clients simply will not work with counsel; and some lawyers are, themselves, reluctant to "interfere" with the client's mediation experience. In this article, we review the potential impact of filing and service on family law matters, the positive ways that mediators can help clients address this dilemma openly, knowingly and well.
1 For convenience we use female pronouns for the potential filer and male pronouns for the mediator.
Family law cases fall into three major categories: (a) divorce and other matters that initially address the break up of existing family systems2 ; (b) enforcement of the judgments that result therefrom, known in Massachusetts as contempt actions; and, (c) modification cases, brought to alter those judgments when circumstances have significantly changed.3 All of these actions have a common root: a complaint4 and a summons.
A plaintiff starts a case by filing a complaint with a court. This invokes the jurisdiction (i.e., it requests the exercise of judicial authority) of the state and, and in Massachusetts, the Probate and Family Court specifically, over the family law matter. The filing party then "serves" the complaint by causing a process server to deliver it to the defendant5; or by having that person "accept service" by signing a summons. Service is the legal prerequisite for asserting the court's authority over the parties as individuals.
Filing and service by themselves do not change the parties' legal status. They do, however, start a process that leads them, in one way or another, along a path towards a divorce or other judgment6. That path may be a litigious one leading to a trial before a judge who decides all status, financial and/or custody and parenting issues; it may be a parallel route of lawyer-to-lawyer negotiation; it may involve an alternative form of private dispute resolution, such as mediation; or it can be a hybrid.
2These include matters to resolve parentage, custody and support controversies between never married parents, and complaints for separate support and in equity. Outside of Massachusetts, these may also include legal separation.
3Typically, modifications provide a remedy for substantial and material changes in circumstances.
4In some jurisdictions and contexts, the action begins with a petition.
5In Massachusetts, divorce and other initial complaints must be served in-hand while contempt and modification actions do not require in-hand service, but permit other hybrid forms of delivery to last and usual residence and mail.
6Petitions end in decrees, rather than judgments.
Whatever resolution process the parties pursue, a pending court matter will frame, or at least influence, it through a combination of rules and statutes. When the parties choose mediation before either of them has filed and served a complaint, they both nonetheless retain the right to begin an action at any time. The parties' knowledge about these options will vary, as will their attitudes; and the manner in which the mediator addresses the issue with them, or fails to do so, may be crucial to the success or failure of the mediation process.
Service of a Massachusetts family law complaint triggers several court rules that regulate the parties' case activities and related economic behaviors, starting with Probate and Family Court Standing Order 1-06 ("Standing Order 1-06"). These case management and time standards rules assign responsibility to the Massachusetts judges to regulate the litigation process. They give the trial court powers and tools with which to exert control over cases, and to keep them moving. The "aspirational goals" of Standard Order 1-06 are to "measure the movement of cases in the Probate and Family Court"7 at a pace that is geared to avoid judicial logjam and to promote efficiency.
Most practitioners and judges view Standard Order 1-06 as a mandate to bring cases to completion, where possible, within the times set forth in the Order: fourteen months from service to settlement or trial of a divorce or equity complaint; and eight months for paternity, modification and most other family actions.8 To promote the goal of these "tracks", every case is to begin with a case management conference no fewer that thirty days after "filing of the return of service, answer or counterclaim", if the parties are not already scheduled to attend court for some other preliminary matter.9
7Probate and Family Court Standing Order 1-06, Preamble, second paragraph.
8Probate and Family Court Standing Order 1-06, paragraph 7.
9Probate and Family Court Standing Order 1-06, paragraph 2.d.
The parties may bypass the in-court conference, by use of a written scheduling stipulation.10
As part of the case management conference or stipulation, the court requires that the parties establish a discovery and pre-trial schedule; and every court appearance is supposed to beget another court "event". These time standards are frequently honored in the breach, especially the track time limits, no doubt in part at least because of ongoing financial and staffing crises in the Probate and Family Court; but they do frame every case in some respect and their aspirational goal is significant.
Service also activates Supplemental Probate and Family Court Rules 401, 410 and 411. Rule 401 requires the parties to prepare and exchange sworn financial statements within forty-five days, and periodically thereafter, including at permitted intervals upon demand of the other party. Rule 410 mandates that the parties exchange three years of specified financial documents during the same timeframe. Finally, Rule 411 prohibits the parties from dissipating or manipulating property, from unilaterally causing debt that would impact each other and from changing coverage or beneficiaries of many forms of insurance policies, without prior consent or approval from the Court.
If a party files a unilateral no-fault complaint for divorce under M.G.L., chapter 208, section 1B, as distinguished from a suit to divorce for cause – so called "fault grounds" under section 1 -- she may not seek a contested or uncontested hearing on her complaint for the purpose of obtaining a judgment of divorce, for a period of six months. This is true whether the mode to settling the divorce is an agreed resolution or a trial by a judge of the Probate and Family Court. The six-month period runs from the date of filing, irrespective of the date of service. (Parties who mediate without a divorce complaint on file proceed by way of a joint petition for divorce under M.G.L., chapter 208, section 1A, which does not have the six-month provision.)
10Probate and Family Court Standing Order 1-06, paragraph 2.h.
A more recent statutory development is last year's Alimony Reform Act. That enactment is now codified as M.G.L., chapter 208, sections 48 through 55. Sections 48 and 49(b) particularly inform and influence decisions about filing, and may motivate service of divorce complaints sooner rather than later. Specifically, the new law (which became effective on March 1, 2012) defines several different types of alimony, including as relevant here, three brief fixed forms, two of which are called "reimbursement" and "transitional", and the more extensive "general term alimony".
The first two remedies are limited in their scope, permitting a judge to order either a lump sum of cash, or periodic alimony, but for a short duration and in a form that cannot be extended; and critically here, they will only apply to marriage of five or fewer years' duration, by reason of section 48. Meanwhile, the general-term alimony provisions require judges to limit the duration of alimony in marriages of fewer than twenty years' length. The limits are defined in section 49(b) by sliding percentages of the number of marital months that follow the date of marriage (or earlier cohabitation with evidence of economic partnership) and that precede, not the entry of a divorce judgment, but the service of a divorce complaint, as specified in section 48. Thus, the length of marriage, as bounded by service of a complaint, can limit a recipient to a non-extendable form of alimony in shorter marriages (advantage: payer), and extend the obligations of the alimony payer in longer ones (advantage: payee).
Another statutory consideration arises in the context of child support modification. Specifically, M.G.L., chapter 119A, section 13(a) regulates the right to request retroactive relief, by prohibiting the court from revising child support, up or down, for any period of time before the service of a filed complaint upon the defendant.
Finally, in contempt actions, M.G.L., chapter 215, section 34A entitles a successful plaintiff to receive an extraordinarily high rate of interest for the defendant's proved failure to comply with financial orders. However, interest rights apply only to the time that runs from and after the date upon which the complaint is filed (not date of service), and not before that time.
Often, people will file and serve a divorce complaint because they need immediate help from the court. They may do this because of emergencies such as domestic abuse, abandonment, acute disagreements about parenting; or because of other less pressing but nonetheless important matters that elude resolution by the parties and counsel, such as allowances of counsel fees, regulated support or custody. To approach a court for orders by way of motion, a case – commenced by filing and service of a complaint – must be pending.
Sometimes, though, a spouse may have other substantive, if more subtle, or structural, reasons for beginning a domestic relations action that relate to the rules and statutes identified above. For example, a party who does not wish to file a "fault" divorce (or lacks the grounds to do so) but who fears that her spouse will lack motivation to seek a timely resolution, may wish to file solely for the purpose of starting the six month "clock" of M.G.L. chapter 208, section 1B and/or, theoretically at least, the momentum of the Order 1-06 time standards. Potential alimony payers may file and serve to stop another clock, this one on the length of marriage, wishing to qualify for one of the shorter, non-extendable forms of alimony, or to foreshorten the duration of general term alimony. A person seeking to change child support may want to preserve retroactivity request rights; and a contempt plaintiff may be hard-pressed to ignore the lure of twelve per cent interest. Other persons will file simply to avail themselves of the protections of Rules 401, 410 and 411: triggering enforceable financial disclosure and protection of the integrity of the marital estate.
These are all substantial and important rights and obligations.
11M.G.L., chapter 231, section 6C (twelve per cent interest).
Mediation is an out-of-court process, but it does not exist in a vacuum. Rather, it works with or against this very real legal backdrop. Despite that, many people who embark on alternative dispute processes know little or nothing about the ramifications of filing and service, or the failure to do so. Frequently, people investigate mediation on their own (often through the internet) and without the guidance of counsel, reducing the opportunity to gain this important knowledge. Even those with some awareness may choose not to focus on it for some understandable reasons: fear of enmeshment with lawyers; to limit emotional escalation; to save money; to minimize damage to co-parenting efforts; for privacy; promotion of self-determination; or simply, to go at their own pace.
As a result, many divorce mediations begin without any complaint on file, and therefore, no service -- not as a knowing election, but out of ignorance. This means that there are no mandatory financial statement or document exchanges; no restraints on assets, debt and insurance; no cut-off of applicable alimony or support duration; no retroactive child support or interest; and if divorce mediation fails, delayed time standards, a full six month wait after filing before a party can seek a hearing on her complaint.
For many -- maybe most -- cases, none of this will matter. The mediation population tends to be self-selecting, and many parties share the values that drive them to opt into private dispute resolution; but the picture is not always so clean or neat. After all, mediation clients, like all other domestic relations parties have experienced relationship breakdown and failures of trust to one degree or another. Some parties have mixed motives for mediating. Just because people elect against litigation or traditional lawyer-to-lawyer negotiation, that does not mean that they check all strategic sense, or for that matter common sense, at the door.
For those people who do choose, for whatever reason(s), to file a family law complaint while mediating the issues at hand, Standing Order 1-06 poses a potential challenge. Because the rules require that a case management conference occur, or alternatively, that the parties stipulate to a specific timeline for discovery and a pre-trial conference, the acts of filing and service can result in time and other external pressures not otherwise existing in mediation.
There are two ways to address this. First, the time standards specifically say that:
Parties engaged in in alternative dispute resolution may request an extension of a scheduled Case Management Conference by filing a joint or assented to motion which attests that the parties are engaged in alternative dispute resolution… 13
This rule requires a supporting statement that identifies the mediator and the dates of previous and scheduled sessions. Second, the time standards expressly identify case management conference as a time for " …early intervention by the Court…[and]…offer[ing] Alternative Dispute Resolution processes…" Thus, a reasonable request of the parties to go "off track" for the purpose of pursuing mediation should be granted; especially during an era of courthouse crisis.
13Probate and Family Court Standing Order 1-06, paragraph 2.i.
15 Probate and Family Court Standing Order 1-06, paragraph 2.c (third paragraph).
Might this impose unwanted timelines on the mediating parties? Absolutely. Yet, in those cases where the considerations that led a party to conclude that she needs to file, time parameters are not always or necessarily a bad thing. Anecdotally, many lawyers observe that judges have been historically reluctant to grant lengthy mediation-related delays because of the understood time standard goals of promoting active case management by the courts. However, given the prominence of ADR in the case management rules, and the court's pressing practical struggles, the courts should, and we believe that more and more over time the courts will, grant relief to permit mediation with greater frequency and leeway.
Effective mediation is built on a foundation that is meant to promote knowing and voluntary decision-making. Without this, fairness of process, and often of result, cannot occur. Shouldn't all divorcing parties know what a divorce action has to offer by way of preliminary relief and protections that come merely from filing and service?
We believe that mediation parties should know these facts. This is one reason that we encourage all of our mediation clients to have independent attorneys as early as possible in the process. Without knowing that substantial rights exist, the client cannot even approach making a knowing decision to file or not to file and serve a complaint. In the process, the parties should also learn the drawbacks of filing: becoming subject to external time pressures; potentially being drawn into an unwanted court process; increased legal fees; a more adversarial feeling; and sense of compromised self-determination.
The mediation parties who need to know this information the most include those who wish to mediate despite considerable trust reservations about their negotiating partners. It is especially important for these people to know how to start the six-month clock to a contested divorce hearing in default of a successful mediation; about the protections and rights of Rules 401, 410, 411; child support retroactivity issues and interest; and where relevant, the time elements of the new alimony statutes. Armed with this knowledge, this potentially vulnerable client can make a knowing and voluntary decision.
So, what happens if a person, with adequate information and perhaps advice of counsel, concludes that mediation cannot proceed without a court filing and service? This decision may end a mediation process before it begins; or if action is taken in the midst, it can cause a premature conclusion. The other spouse may believe that a court filing undermines the mediation process. He or she may see it as belying the good faith required for a facilitated conversation that is based heavily on trust. A spouse may feel that the anxiety of an open court proceeding will inhibit willingness to talk openly or to negotiate flexibly. Some may fear that the existence of a pending court action pushes them to an active lawyer-client relationship before they feel ready to do so. The time standards practicalities that we discussed above are a real consideration, too.
These party-to-party attitudes require a potential divorce complaint filer to make a cost-benefit analysis about starting a court action. She may forego mediation if filing causes the other spouse to refuse to proceed and the filer concludes that the risks of giving up the court rules and/or statutory impact outweigh the expected benefits of mediation. Or, this person may conclude that the promise of mediation makes the non-filing risks secondary, or at least acceptable. Either way, it is a careful decision made in the light of knowledge and understanding.
Sometimes, the person who is considering whether or not to file will be discouraged from doing so by the mediator himself, directly or subtly. This may arise from the neutral's fear that the act of filing will alienate the other spouse from the mediation process, or that the action may itself constitute a form of coercion within the mediation. In some cases, both fears may be warranted, and bear consideration. Other mediators, however, will share the view of the reluctant spouse identified above: that filing and service are inherently hostile to the mediation process, and inimical to good faith participation.
We believe that this mediator's view is unfortunate. It denies critical realities, it narrows the circumstances in which the mediator may be effective, and it may actually harm clients. A party who feels the need for the security of the Rule 411 restraining order to negotiate comfortably is not necessarily acting in a hostile fashion: events and circumstances may justify this person's concern, and addressing it may be the key that unlocks the ability to negotiate free of fear of loss, or further loss. The mandatory financial document exchange under Rules 401 and 410 may be implemented or suspended, yet they may give both parties the confidence that the candor will be mutual because compliance could be compelled, if necessary. From among the alimony cutoffs, potential for child support retroactivity, contempt interest and the commencing of the M.G.L., chapter 208, section 1B clock and Probate and Family Court time standards, one or more right or protection may be just what is necessary to allay the fears of the oppressed spouse or expected alimony payer, that the other party will be motivated to "slow roll" the mediation -- i.e., to strategically shape the ultimate result more to his or her liking by extending the process unreasonably.
If the mediator supports the notion that in all circumstances, all court filings are antithetical to good faith mediation, then he is undermining the parties' right to make a knowing decision about whether a filing and mediation are mutually exclusive, or if, in fact, they can effectively co-exist, or even support one another. Clients who believe that it is important to have one or more of the rights and protections that come from filing and serving a complaint should not be placed in the position arbitrarily by the mediator, of having to make a binary choice: either mediate or file.
The better practice is to be transparent with clients about the implications and effects of the commencement of a divorce action during mediation, including the various court rules and statutes discussed above. The mediator should assist the parties with solid information, encourage legal consultation and not bias this choice any more that he would a substantive issue between the parties. People can and do mediate under all kinds of circumstances, including right in the midst of litigation; and sometimes and in some circumstances, it is irresponsible for a party not to file.
None of this implies that a mediator should advise a client to file and serve, or not to file and serve a family law complaint. In fact, we may not do so. But, this ethical proscription does not relieve us of our obligation to inform. If a party knowingly chooses not to seek advise from a proper source, that is, itself, a knowing and voluntary decision of an informed free agent, even if we may personally disagree with it. One way to address this might to be to give written materials on point, to both parties, so that they may read, know, consider, seek advise and if appropriate, act.
All mediators share the goal of facilitating not only settlements, but ones that are fair, fairly negotiated, knowing and voluntary. Urging clients to ignore the legal realities outside of the mediation room is neither fair to, nor safe for, the clients; and is it not effective mediation.
William M. Levine, Esq. and Hon. E. Chouteau Levine (Ret.) are the principals of Levine Dispute Resolution Center LLC, of Westwood and Northampton, Massachusetts, where they mediate and arbitrate family law, probate and other matters.
The authors gratefully acknowledge the editorial review and contributions of friend and colleague, David A. Hoffman, Esquire, mediator, arbitrator, collaborative lawyer, lecturer and author, of the Boston Law Collaborative, Boston, MA