Alimony reform, effective March 1, 2012, created a number of important time sensitivities that did not exist previously in the spousal support law of Massachusetts. 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 avoidance of 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?
Why does this question matter? It certainly matters to attorney mediators whose licensure is subject to Supreme Judicial Court's Mass. Uniform Rules on Dispute Resolution 9(c)(iv), which permits lawyer to" ... use his or her knowledge to inform..." but "... shall not provide legal advice... in connection with the dispute resolution process!' This rule is consistent with the American Bar Association's Model Standards of Practice for Family and DivorceMediation, Standard VI (16) (" ...a mediator may provide information that the mediator is qualified by training and experience to provide. (But' Mlle mediator shall not provide. .legal advice."
Meanwhile, for all mediators, including non-lawyers, Standard VI(13) of the Association of Family and Conciliation Courts (AFCC) Model Standards of Practice for Family and Divorce Mediation echoes the ABA standard; and the MCFM Standard of Practice 4(C) falls just short of prohibition, stating that "The mediator may give general information that will help the parties make their decision, but shall not recommend specific course of action regardless of professional background.' In short, whether or not individual theorists or mediators agree, the prevailing consensus rules out legal advice, across the board. (For non-lawyers this implicates the profound challenges posed by the unauthorized practice of law dilemma discussed by David A. Hoffman in his piece in the Spring 2013 issue (Vol. 12, No. 2, p.22) of Family Mediation Quarterly. That issue is outside the scope of this article.)
Returning to the alimony information/advice question, it arises in the broader context as we addressed in the Spring 2013 issue (Vol. 12, No. 2, p. 1) of Family Mediation Quarterly: a collection of rules and statutes that trigger rights, obligations and protections that accompany the start of court actions involving family law disputes. These range from automatic financial retraining orders, to mandatory financial disclosure ,retroactive modification and statutory interest on contempt judgments. For the most part: they are procedural; where substantive, they are peripheral if nonetheless important.
Alimony 'reform" places central, substantive alimony rights and exposure squarely in play. Simply put, when a divorce complaint is filed and served matters in numerous potential ways. These timing issues are ncw, important and help illustrate this important mediation practice issue; while bearing fully in mind that principles discussed apply far more broadly.
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. 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 gession may mitigate our uncertainty because first, there is opportunity to inquire of counsel or to hear counsel's comments on point; and second, 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".
As partly noted by David A. Hoffman's recent piece (above), according to one pertinent authority, the Commonwealth of Virginia's Unauthorized Practice of Law standards:
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, if we try EO 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? 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 panics do not have lawyers in attendance; because that piece of information may change the way the panics' 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 arc 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, like carefully provided information, create an equal if opposite impact on the parties' negotiation? 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 pioneering colleagues, John Fiske, says frequently, there is opportunity and risk in everything that mediators do. If we have a practice bias, it is in favor of more relevant information rather than less. Figuring out how to thread the needk 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 A. Hoffman, Esquire, of the Boston Law Collaborative, for focusing us on the Commonwealth of Virginia UPI_ Guidelines, for teaching and talking with us about thc information-legal advice frontier.
William M. Levine, Esq. and Hon. E. Chouteau Levine (Ret.) are principals of Levine Dispute Resolution Center, LI.0 in Westwood and Northhampton, MA. Bill may be reached at email@example.com; and Chouteau may be reached at firstname.lastname@example.org.