By: William M. Levine and Hon. E. Chouteau Levine (Ret.)
Alimony reform, effective March 1, 2012, created a number of important time sensitivities that did not exist in the spousal support law of Massachusetts, previously. Addressing these timing issues in divorce mediation raises important challenges for the practitioner, one of which is how to find a balance among three imperatives: mediator impartiality, informed client decision-making,and avoiding giving legal advice. Here, we ask: when we “inform” clients about particulars of the alimony statute that carry timing perils or opportunities, are we giving information or legal advice?
The broader context for this question is a collection of rules and statutes that trigger rights, obligations and protections that accompany the start of court actions involving family law disputes. We explored many of them in an article “Its no Sin: Filing and Serving a Complaint Before or during Family Mediation” that we previewed in our January 2013 Newsletter, and that will appear in this spring’s issue of the Family Mediation Quarterly. From a subsequent teaching experience, it became clear to us that one key to maintaining impartiality is being attuned to the providing knowledge – giving advice dichotomy, and its sometimes murky intersection. We focus on alimony here because the timing issues that it presents are new, important and work well to help illustrate the process issue; while bearing fully in mind that principles discussed apply more broadly to many other substantive and procedural law matters. 1
In relevant part, the new alimony statute introduces time limits for alimony in all marriages of fewer than 20 years. “Marital” months are tabulated, and for each 5 years, a progressively higher percentage (50% - 80%) determines the maximum alimony term.2 The law also provides two new kinds of short term or lump sum alimony that cannot be extended for any reason, but only in marriages that are shorter than 5 years’ duration. Critically, the length of marriage is confined to the number of months elapsed from the date of marriage to the date of service of a summons and complaint for divorce.
In summary, the decision of a party to file and serve a complaint for divorce, or to not do so, can alter the substantive course of the mediating parties’ divorce by:
If parties are actively working with counsel during mediation, we may infer that they are aware, or should be, of these basic legal facts. The physical presence of counsel in a mediation session may mitigate our uncertainty because a. there is opportunity to inquire of counsel or to hear counsel’s comments on point; and b. because the attorney’s presence serves to delineate roles in the clients’ minds as in: “my lawyer is here to advise me, the mediator to mediate”.
According to one authority:7
Mediators may make statements that are declarative of the state of the law on a given legal topic and these statements are generally permissible.
Mediators may rely on their training, experience, or even their own analysis of statutes or case law when making these declarations…
[but][A] permissible statement declarative of the law in one context may constitute unethical… legal advice in another. Mediators must carefully consider whether, under the totality of the circumstances, a law-related statement is likely to have the effect of predicting a specific resolution of a legal issue or of directing the actions of the parties…[S]tatements made by a mediator in the presence of the disputants’ attorneys are less likely to influence or direct their actions than if made outside of the attorneys’ presence.
Even if counsel is not present, and a client volunteers awareness of the alimony rules in a session, the mediator’s response can be sensitive to these cautions by being fairly straightforward. Confirm what is accurate; correct what is not; fairly explain the internal interaction among various statutory provisions, and impact with prior, but still “good” law; and that there is much to be clarified over time by interpretive case law. If we do not urge a result, try to refrain from predictions and be sure to give fair balance to the various factors involved, we should not trip the wire between information and advice. As a consequence, we should avoid the appearance of introducing impermissible bias by urging a particular result that one party may not fully embrace.
What is more problematic is the scenario when the parties exhibit no clue about this legal framework or that it even exists; or they have only vague or misinformed ideas. Yet, we know the basic facts of the marriage, i.e., the date of marriage and the presence or absence of service. We are thus aware that one statutory milestone or another is approaching. Do we initiate or cause an awareness of the statute?; and if so, are we informing or advising?
As cautioned above, it depends. For every rule of substantive law, one party or the other may stand to gain, and the other less so. So, when we bring a point of law to the clients’ attention we risk that it be construed as legal advice, especially if the parties do not have lawyers in attendance8; because that piece of information may change the way the parties’ think about the issue at hand, and thus, may indirectly push the outcome in one direction or another.
But, does this make it advice, and as advice, does it subvert mediator impartiality? Without parsing the way in which the information is framed and stated (which can easily shift information into advice), and assuming a neutral statement of law, we believe not. After all, as mediators, we are all about people having sufficient information to make their decisions knowing and voluntary. With profound rights and obligations at stake, how can ignorance of the basic rules advance these twin goals?
As importantly, may not silence create an equal if opposite impact on the parties negotiation as carefully provided information? Whether informing or choosing to remain mute, the mediator is (hopefully) making a conscious decision; and either choice may advantage one client or the other in their negotiations. It is unreasonable, in our view, to condemn the choice to inform as legal advice, with resulting exposure to the claim of partiality, while excusing silence from either.
Plainly, we need to inform clients. We must do so with care; and with high consciousness of the neutrality with which we do it. As one of our senior colleagues9 loves to say, there is opportunity and risk in everything that we do as mediators. If we have a practice bias, it is in favor of more relevant information rather than less. Figuring out how to thread the needle with useful information input that is neither advice nor improperly biasing is one of the joyful challenges that we face every day in helping couples resolve their family law matters without litigation; and we embrace it.
Acknowledgement: Thanks to colleague and friend David Hoffman, Esquire, of the Boston Law Collaborative, for working on our prior piece, for his writings in which he focused us on the Commonwealth of Virginia UPL Guidelines, for teaching and talking with us about the information-legal advice frontier.
1We do not address here the thorny related issue of the unauthorized practice of law, as in the recent Massachusetts case of In the matter of Anthony Raoul Bott, 462 Mass. 430 (2012), nor the many sets of journals and guidelines that attempt to bridge the gulf between non-lawyers mediators and lawyers acting as mediators, and the question of whether the lawyers are practicing
2Subject to extension by a judge based on a set of statutory criteria.
3Called,reimbursement or transitional alimony under M.G.L., chapter 208, section 51 and 52.
4For failure to serve within 5 years of marriage.
5Terminable upon the payee’s death or remarriage notwithstanding.
6We do not address the interaction of this statute with M.G.L., chapter 208, section 49(f) regarding retirement age of the payor, nor it’s opportunity for exception in section 49 (f) (1).
7 "Guidelines on Mediation and UPL”, Supreme Court of Virginia, Chapter 2, Section 4 (http://www.courts.state.va.us/courtadmin/aoc/ djs/programs/drs/mediation/resources/upl_guidelines.pdf).
9John Adams Fiske, Esquire, of Cambridge, MA.