In the last entry we reflected on divorce lawyers’ impatient wait for “clarification” of the complex Massachusetts alimony “reform” statute from the Supreme Judicial Court and Appeals Court. They hope that with appellate “guidance”, they may be better able to prepare their clients for what may happen in court in what are otherwise unclear scenarios. Ambiguity causes anxiety in lawyers and their clients alike. Given the number of cases in the appellate “pipeline” a year out, 2013 is the year when interpretive case law will begin to trickle, or perhaps, flood out of the appellate courts in downtown Boston. This flow may be edifying or confusing, consistent or scattered, but to lawyers, it is essential.
In the meantime, for facilitative divorce mediators, appellate silence is a form of opportunity. Clients frequently turn to mediators and ask: what would happen in court? Three possible answers are:
The first answer, while true to principles of facilitative mediation, is often frustrating for clients. It can also pose a struggle for the mediator who is trying to foster discussion rather than shut it down, especially in a way that might suggest potential bias; yet the knowledge of appellate interpretation may be important to the parties’ understanding. The second answer is negative, may discourage the spouses and undermine confidence in the knowledge of the mediator.
Answer number 3 is positive and puts the focus back on the parties themselves. Where the legislature left discretion, the parties are left to exercise it by consensus, untrammeled by the imperfect analogies of different appellate panels in other peoples’ scenarios where too few facts are known. Instead of shutting down discussion and limiting options, the clients are free to explore and agree; and so long as they find the “range of reason”, a judge should approve their work.
Take an example. The parties have a long-term marriage but an alimony payor who is close to the federally defined retirement age. The strong language of the alimony statute suggests that alimony should terminate when that age is reached, regardless of other circumstances or equities. But, the statute then provides a “deviation” opportunity: to set a different alimony termination structure for “good cause shown”. What then is good cause?
For the moment, mediators can encourage a wide open conversation on “what is good cause to you?”, free of the knowledge that hypothetical cause a, b or c may have already been ruled “in” or “out”, by one appellate court or another. When the clients can freely list all the factors that seem relevant to them, they can then move on to evaluate them, weigh them, discard them or trade them. The result is an exchange of ideas that can result in an individually tailored suit of good cause: the parties’ own, and not someone else’s or something off the rack.
Once the appellate courts begin to speak, we as mediators will be charged with the knowledge and tasked with deciding in each case what to or not to disclose of the emerging clarity or confusion that the cases bring. From that perspective, we might say “take your time”.
The viewpoint of a family law arbitrator is quite different. We will discuss that in our next entry.