Divorce Mediation Blog

Another Rehabilitative Alimony Case Highlights Important Issues, But Muddles Need Further: Vedensky v. Vedensky – Part 1

Wednesday, January 07, 2015

The New Year began with the January 2d release of an alimony case, Vedensky v. Vedensky, by the Massachusetts Appeals Court. It is noticeable for several reasons:

  1. It is the latest in a line of cases addressing rehabilitative alimony, that until 2012, was exceedingly rare in Massachusetts, but which has dominated alimony case law development since;
  2. The court clarified the concept of an “earlier judgment” when determining whether a “material change of circumstances” has occurred that may justify a modification of alimony;
  3. The case drew a clear line on the question of second or secondary jobs that a payor obtains after divorce, and tied it to income attribution rules;
  4. The panel approved application of Social Security Administration (SSA) disability rules in defining a partially disabled recipient’s income capacity; and, finally,
  5. The Appeals Court unfortunately muddied the increasingly murky waters of “needs” in relation to alimony rights.

Determined to start 2015 in a positive note, we will discuss the first four points here, and the last, lamented, one in a separate, subsequent entry.

The rehabilitative alimony phenomenon. An out-sized proportion of the appellate cases decided under the Alimony Reform Act (eff. 3.1.12) to date are appeals from rehabilitative alimony awards. While this short-term support remedy was never foreclosed here, its application was inhibited by case law prohibitions on pre-determined termination dates generally, which was itself a major spur for the reform effort. This must be a popular part of the new statute, causing rapid case law development as judges grant rehabilitative orders and necessarily grapple with it conceptually, and with the relevant factors to apply all alimony questions, namely ability to pay and the needs of the recipient. It also means that rules that will more often apply to general term alimony (we assume) are being made in the less usual context of fixed, short-term support. We wonder how this may impact those rules.

The applicable judgment against which to measure change. The alimony question in Vendensky was advanced by a 2011 complaint for modification brought by the former husband. The parties did not make alimony provisions in their divorce agreement/judgment, but they expressly reserved the parties’ rights to seek alimony in the future. They stipulated to child support orders, paid by husband to wife. In 2007, the husband sought reduction of child support because of job loss, psychiatric disability and SSA disability dependent payments now payable to the wife. He succeeded. When his disability persisted, the husband brought his alimony modification action.

The wife advanced a defense that the action was barred because the Husband’s employment problems (he had actually become partially re-employed) and disability had preceded the child support modification judgment. Predictably, she argued that since no material negative change occurred since that judgment, it was impossible for the husband to meet his burden of proving material change to justify further support relief. The husband argued, and the trial judge and Appeals Court agreed, however, that the material change burden ran from the facts existing at the time of divorce the last time that alimony was addressed (i.e., no disability or employment problems); and not from the later child support modification judgment, when alimony was not in issue.

This was an important decision, if not entirely novel. To find otherwise, the appellate court reasoned, would compel parties to seek alimony when it is not needed, so as to protect against being foreclosed from requesting it a later date when it might become necessary.

Second or secondary jobs. The wife is a doctor who had a primary full time job that she elected to augment with per diem moonlighting at a rehabilitation hospital, post-divorce. In evaluating her ability to pay alimony, the trial judge included the income from her second job when calculating the wife’s income available for support, despite the presumption of M.G.L., chapter 208, section 54(b) that suggests that such earnings not be considered. Overreaching further, the judge imputed income to the wife by finding that she could make even greater income money by moonlighting more!

The Appeals Court correctly vacated these income findings because the Probate and Family Court judge did not find any facts that amounted to a rebuttal of the presumption against including the wife’s second job income, especially, here, where the wife was working a side-job as primary caretaker of the parties’ children, with no financial contribution from the husband (other than SSA payments on his behalf). The double insult of attributing income to the more than fully employed wife was equally out-of-bounds, the appellate panel found, since the judge did not find, and could not have found, the wife to be “underemployed”.

The Appeals Court intersected the two statutory provisions with one concise ruling, that:

    … a party who works at a full-time or full-time equivalent job may not be found to be “unemployed” or “underemployed” based on the level of compensation received from a second job obtained “after entry of the initial order” unless a judge concludes…that a basis exists for rebutting the presumption of immateriality applicable to the income earned from the second job.

A useful and sensible conclusion.

The husband’s income capacity. The trial judge determined the husband’s present income capacity to be the maximum earnings that the husband may earn under SSA regulations without jeopardizing his disability benefits during the rehabilitative alimony term selected (2 years). The wife argued for a less restrictive measure, specifically the SSA standard that applies at the outset of disability payments. The Appeals Court agreed that the trial court was justified in crediting the standard prevailing at the time of his decision, during a period when the court is expecting the Husband to be working towards a return to full time work, as indicated by counseling orders and the 2-year alimony term. This is a relatively narrow ruling on very specific facts, but it is respectful of the trial court’s sound discretion.

The result and the husband’s needs. The Appeals Court reversed the Probate Court’s judgment because the judge’s over-counting of the wife’s income may have skewed the alimony sum result unfairly. They could have, and should have, let it rest there. We promised to stay positive and leave the matter of needs for another day, and that we shall do.


Alimony Reform and Child Support Changes: Judge Ginsburg’s View

Wednesday, June 04, 2014

In the April 14, 2014 Massachusetts Lawyers Weekly, the most thoughtful Massachusetts Probate and Family Court judge of his generation, Hon. Edward M. Ginsburg (ret), laments that 2012’s alimony overhaul by the legislature and 2013’s quadrennial review and revisions to the child support guidelines by the Trial Court add up to a giant missed opportunity, and a failure that will hurt families for years to come. Specifically, Judge Ginsburg, who devoted a good chunk of his two decades on the bench to advocating for predictability and consistency in all things support points out that no one thought to look at spousal support and child support as a piece. He is right.

We have all been focused intensely on how the new alimony laws work; how the new guidelines work; and how we might manipulate the two into making sensible orders that are tax-efficient. But in debating the trees, we lost sight of the forest: why didn’t the lawmakers look at these two cognate and connected subjects as two parts of the same puzzle that they are? How do we rationalize two sets of support theory into a fair, efficient and sustainable whole, not just for the privileged few who will take the time in mediation, or with sophisticated counsel, to develop a custom-made support regime, but for everyone? Reform is not reform without addressing all relevant considerations; and here, half the house was built as a tudor and the other side a cape. The result is a leaky home.

An example. We recently had to explain the following muddle to mediation clients. Under the new child support guidelines, a mother with 2 children would often receive 18.4% of the Husband’s gross income as child support, and no alimony, he having income of about $200,000.00 per year. The same woman learned that if she had no kids at all, she might expect 30 – 35% of the very same income, as alimony. Granted, we explained, taxable income is worth less than its gross sum. But is it worth less that 18.4% on the gross? Not likely.

Another example. As we have discussed here before, the alimony law says that the court may not take dollars into account that have already been tapped for child support, suggesting that child support is computed first on income up to $250,000.00 per year, with excess income only being addressed for alimony. Meanwhile, the child support guidelines say that the court may calculate alimony first, and then child support. We have argued before that sound discretion and good divorce mediation can turn these conflicts into opportunity in the search for a sensible result. But the legal inconsistency is undeniable.

Would it not have made sense for some body to review the matter of family support as of a whole? Is it too late?

Thanks to Judge Ginsburg for this valuable and disturbing insight.


What's In a Retainer? A Cautionary Tale

Wednesday, March 05, 2014

We were recently surprised by a client's statement she thought that a retainer is non-refundable. Our response was easy. The Massachusetts rules that govern the practice of law make clear that non-refundable retainer is an oxymoron. Retainers are advance payments that may be used to fund future services, with any unused portion refunded to the client. Isn't this something that lawyers have known for decades? Maybe not.

Lawyers Weekly recently reported that an attorney represented a criminal defendant and lost big when the client sued for what he alleged was an over charging: $120,000.00 for a case that resulted in a continuance without a finding. While the lawyer tried to characterize his initial $40,000.00 fee as part of the larger "flat fee", the judge whose jury found in favor of the client, re-branded the payment as a non-refundable retainer. The result: a $90,000.00 finding of unreasonable fee, tripled for consumer protection violation, and inflated to nearly a half million dollars, with accrued interest.

What was he thinking? The fundamentals of a retainer are long-known. While this already suspended lawyer may not be a reasonable measure of normal, we have to wonder how many lawyers engage in unethical billing practices because they do not know better? Even worse, are there some who do it purposefully because of the long odds of being caught?

There is nothing wrong with a retainer. If properly explained, it provides client commitment, a certain level of security and cash flow reliability in a field where "what have you done for me lately?" is a common lament. We use small retainers to fund work that occurs outside of our divorce mediation sessions, such as session summaries and agreement drafting. We explain how they work to clients up-front, and no one has yet declined.

The recent case tells us that all we need to be even better at explaining our retainer practices. For firms in which large retainers are the norm, this need is magnified. In divorce and family law, all new clients share some level of vulnerability, and many are prone to re-interpret their relationship with counsel when the need for services abates, especially if the results have been disappointing (as they often are). Ethics and fairness aside, our reputations and ability to earn a living depend on it.


Health Insurance in Section 34 And Alimony Reform - Part 1

Wednesday, February 12, 2014


Divorce lawyers, mediators and arbitrators: when was the last time you actually read M.G.L., chapter, section 34? We read it every once in a while, because some particular need; and we are often surprised when we do.

During a recent lawyer-attended divorce mediation, we were addressing the impact of the wife's loss of medical coverage due to her husband's employer being self-insured, and thus, exempt from the Massachusetts spousal insurance continuation rules. We all knew that section 34 had something to say about it, but none of us were 100% sure of its substance. It was pretty clear that we were at risk of conflating section 34 with the new alimony statute's provisions (eff. 3/1/12) on point.

So, we cracked the "green book" (ours is actually maroon) and scanned the statute until we found this:

    When the court makes an order for alimony on behalf of a spouse, said court shall determine whether the obligor under such order has health insurance or other health coverage available to him through an employer or organization or has health insurance or other health coverage available to him at reasonable cost that may be extended to cover the spouse for whom support is ordered. When said court has determined that the obligor has such insurance or coverage available to him, said court shall include in the support order a requirement that the obligor do one of the following: exercise the option of additional coverage in favor of the spouse, obtain coverage for the spouse, or reimburse the spouse for the cost of health insurance. In no event shall the order for alimony be reduced as a result of the obligor’s cost for health insurance coverage for the spouse.

Over two blog entries, we will break the first and third sentences of this provision down, by clause, beginning with sentence one:

    1) When the court makes an order for alimony on behalf of a spouse,
    2) said court shall determine whether the obligor under such order has health insurance or other health coverage available to him through an employer or organization
    3) or has health insurance or other health coverage available to him
    4) at reasonable cost that may be extended to cover the spouse for whom support is ordered.

The first part is clear: the obligations that follow in clauses 2-4 only arise in conjunction with an alimony order. But, we have to ask the question, why? Where section 34 authorizes a judge to award property in lieu of alimony, is health insurance somehow less of a priority? With the “new” mandatory cut-off of alimony by term or payor retirement age (subject to deviation), and the quasi-mandatory termination or suspension for cohabitation, alimony recipients are plowing new ground in seeking greater property shares to mitigate alimony limits. If they seek extra property in lieu of alimony, are they then foregoing valuable medical insurance benefits?

Second, in light of Massachusetts and federal health insurance reform, what does "health insurance or other health coverage available to him through an employer or organization" mean? (Don't get caught up in the legislative gender choice!). Since first reference is made to "employer" coverage, does this exclude the self-employed? If so, are sole proprietors, partners and LLC shareholders exempt?

Are health care exchanges "organizations"? If so, is individual coverage available to a former spouse via private coverage "available" to the alimony payor? If it is deemed "available" to the payee only because only he or she can contract for it, does this mean that the court lacks the funding authority of clause 4? Should it? And, what is the difference between "health insurance" and "health coverage" anyway?

Is there any place in this scheme for comparing the alimony recipient's coverage through his or her own sources at all? Or comparative costs? From among personal employment, self-employment and private coverage, there may be no need for the funding section of clause 4, yet the language throughout this part of section 34 appears to be mandatory. Does this conflict with the "needs" limitation to alimony?

Finally, what really is "reasonable cost"? Especially now, health insurance is judged on a matrix of costs and benefits, together denominating value. ACA and MA law both encourage a sophisticated approach to evaluating coverage by consumers. Is reasonableness to be judged by catastrophic coverage standards, by comprehensiveness, by co-pays, by deductibles? Is reasonableness somehow related to the appellate definition of "need", i.e., comparability the coverage enjoyed during the marriage. Is it bound by the payor’s ability to pay?

As divorce mediators our job is to know what the law says, give information about it and then plumb the practical solutions to the problem of health care and support. As divorce arbitrators, we have to be more concerned with, just what does this provision mean? It is surprising how little litigation this interesting and complex part of section 34 has spawned over the years. Our next blog entry highlights an area that may just change all of that.


A Shout-out for Bullet Arbitration

Wednesday, December 18, 2013

Recently, we handled a case where the parties had been engaged in divorce mediation with a really great mediator, after litigating hotly, but inconclusively, for some time. They were progressing in the new process, but kept running into a stubborn problem: the value of the husband's business, and the level of compensation from it, were widely contested; so much so, that they could not reach closure on either asset distribution or support.

The lawyers for the parties called, with their mediator, and inquired about family law arbitration (an out-of-court adjudication to which they would agree to be bound, under rules and conditions that they themselves negotiated and set). We, of course, said "yes".

Within the week, a deal on the rules was struck: each expert would give a narrative presentation of his valuation analysis, subject to a defined period of cross-examination by opposing counsel and questioning by the arbitrator, followed by re-direct examination by proponent's counsel. The rules of evidence applied to cross and re-direct exams. The experts were sequestered. The arbitrator's (who also served as a master, facts final by appointment of the court) work product would be a report/award of the valuation, with a brief rationale. The parties waived findings of fact and closing arguments.

These were the rules that they chose, and that worked for them. The proceedings could have been less formal, or completely court-like, if they preferred; but they seized control of their own situation and made it work in the way that made sense to them: a successful negotiation.

Within about three weeks of the initial call, the hearing occurred and 10 days later the parties had their arbitrated result. It included a value for the husband's interest and it explained the income predicate used in the capitalization of cash flows.

A few days after, they returned to mediation and settled their case.


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.


Massachusetts Alimony: Watching the Pot - Part 3 An Arbitrator’s Perspective

Wednesday, April 24, 2013

In our last entry, we celebrated the freedom that a facilitative divorce mediator has when the appellate courts have not yet weighed in on the vagaries and pockets of discretion in the Massachusetts’ one-year old alimony “reform” statute. A statute that can be fairly characterized as open to flexible application can promote rather than limit open discussion, which for divorce mediation, is good.

The arbitrator’s view is quite different.

As family law arbitrators, we are essentially, private judges. While classical commercial arbitration law does not confine the neutral to precise application of prevailing law, family law arbitrators are bound to apply the law because the final result must still be deemed to be “fair and reasonable” to the reviewing judge, under our law. Moreover, when domestic relations clients hire an arbitrator, they are looking for objective and reasoned decision-making. Arbitration is not, after all, supposed to be arbitrary.

In this role, we are no less bound than a trial judge in court to search out what the law is on each point, and to apply it to the facts of the case. The imperfect analogies that are the core methodology of legal inquiry, that may hem in mediation, are the arbitrator’s roadmap. Where the parties do not have appellate rights, or even if they did1 , “getting it right” is the goal. Appellate case law is essential to that cause.

Divorce mediators ask: how may the law be applied to best serve this severing or restructuring family? Family law arbitrators (and masters, facts final), by contrast, ask themselves: what would I do if I were a judge in this case? Clear or confusing, slow and steady or sudden and messy, appellate case law gives arbitrators a window into those factors that would influence a judge in exercising discretion and in balancing competing interests that are represented by this complex statute.

For arbitrators, it doesn’t matter what we wish for, rather it simply matters what is. Let the pot begin to boil.

1As would be permitted if the proposed family law arbitration statute that is advanced by the American Academy of Matrimonial Lawyers – MA Chapter, were law.


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.



Wednesday, February 27, 2013

By William M. Levine

After my first divorce mediation training program, in 1995, presented by the American Academy of Matrimonial Lawyers, I was struck by the irony that a peer group based on divorce trial practice would, in the minds of many fellows, undermine its own core values by teaching the principles of facilitated negotiation. I wrote a brief piece, linked here, for the May/June 1995 Boston Bar Journal, Vol. 39, No. 3, titled “Mediation Where the Buffalo Roam”. I was curious to re-read it, having mediated part-time for 17 years and full-time, now for a year plus; and I just did it.

In that article, I asked several questions about divorce mediation practice, to which personal experience now provides some answers. A few of those questions follow, with my present attempt to address them briefly.

How can lawyer-mediators rationalize striving for an agreement with which people “can live” rather than a settlement that is objectively fair?

There are two problems with the question. First, it suggests that acceptance and fairness are mutually inconsistent ; and second, it asserts that fairness is objectively determinable. This implies that two competent actors, with sufficient knowledge, process fairness and free will, are not likely to find a settlement which they can accept that is also fair.

I now see that most people who are motivated to mediate are quite capable of discerning fairness, and when they are unaware of how “the law” or “the court” might interpret fairness, they are eager to learn. If fairness is the range of likely outcome in court, or outside a mediated resolution, most mediating parties are fully capable of learning, discerning and deciding how they might fit into the continuum of predictably “fair” results. And, when they reject the so-called “range of reasonableness”, as they sometimes do, they do it knowingly; and they know they must prepare themselves to address skepticism, or even rejection of the court.

Spending time with divorcing parties as they bravely navigate challenging and painful issues only increases respect for clients’ capacities to be self-interested but responsible negotiators. Are there some issues that are just so complex, technical or legally volatile that parties’ just cannot get a fix on acceptability or fairness? For sure, but they are rare; and responsible mediators will spot those issues and urge those clients towards a more appropriate forum.

Can divorce mediators successfully resolve “power” or “information” imbalances?

Often, but not always. Part of being a mediator is making the upfront judgment of whether or not these kinds of asymmetry exist, and if they are likely to be fatal to the process, or just challenging. In the former case, we need to decline the engagement. In the latter, we create structure, set limits and use our best people skills.

Most clients who wish to misuse mediation do not make much effort to mask it. For those who do, it will become clear in time, and we do have tools: appeals to enlightened self-interest, illustrations of what the litigation system has to offer them in the alternative, and caucusing for (sometimes very) direct talk. For the more vulnerable party, clarity of legal information, enforcement of basic civility, encouragement of open expression and work with assisting or attending divorce counsel helps; and a supportive and comfortable atmosphere serve to allay anxiety.

Can full and fair financial disclosure effectively occur in the mainstream of cases, without authority?

Absolutely, yes. Divorce mediation does not exist in a vacuum. It works in the shadow of the court and all of its rules, including financial disclosure. In Massachusetts, Probate and Family Court Supplemental Rule 410 requires a baseline level of initial information exchanges, with supplementation requirements. Mediating parties are free to narrow or broaden the scope of detail provided; and a fully informed client knows that at any moment his or her spouse may file a legal action at any time, if one does not yet exist, to compel compliance. A well-timed reminder is sufficient to cure information reticence many more times than not. In some cases, people may need to pursue formal discovery, then mediate.


DIVORCE MEDIATION: WHAT’S A LAWYER TO DO? Part 3 (Lawyer-Attended Mediation)

Wednesday, February 20, 2013

Lawyers who are representing clients in divorce mediation, sometimes for the first time, ask divorce mediators: what are we supposed to do? We introduced this subject in our last two entries, including specific attention to lawyer-assisted mediations (where one or both parties have consulting counsel who do not attend mediation sessions) in Part 2.

Here, we discuss the role of counsel in lawyer-attended mediation. A lawyer-attended mediation is one in which clients have counsel with whom to both consult before and after divorce or other family law mediation sessions, but who also attend the divorce mediation sessions with them. In addition to fulfilling the traditional roles as educator, and counselor (as considered and described in Part 2), these lawyers also play a direct role as negotiator for the client. But how is this role different in lawyer-attended mediations, as compared with litigation or traditional lawyer-led negotiations?

First, despite counsel’s presence, divorce mediation is intended to be a client-centered process. Knowing, voluntary deals with which both parties can live remain the goal, and attending counsel must acknowledge this critical focus. Hard advocacy for extreme positions or distinct one-party advantage is out-of-place and counter-productive.

Second, counsel attends to be supportive and encouraging of the client’s self-expression, as part of a collaborative team with the client. The concept of a client remaining silent while his or her advocate articulates a sophisticated and perhaps polarizing position on his or her behalf is inconsistent with the parties’ intention to speak, as indicated by the choice of mediation. Counsel need not be mute, but the lawyer-attended mediation that works best is one where lawyer and client negotiate a balance in speaking roles, supporting and reinforcing each other. The client needs to “be heard” in mediation, and develop a rapport with the divorce mediator, a process that is stunted by consistent silence. Technical competence and subject matter expertise will guide counsel nicely is determining how much or how little he or she ought to be heard. The lawyer’s support, emphasis and correction are invaluable, critical to the client’s comfort and essential to the mediator’s understanding of facts and interests.

Third, counsel needs to resist the temptation to use loaded words and phrases, especially when working in joint session. Language that promotes hardened positions, and harder feelings, is inconsistent with the search for common ground. Divorce Mediation is not meant to be a different forum for litigation: it is a new place for a different kind of discourse. There will be plenty of time and opportunity for personalized advocacy if the mediation fails; but its presence in the mediation room will only hasten that day, with one more painful failure in the parties’ memory bank.

Fourth, compromise is the order of the day. Family law matters are rarely zero sum. The search for openings, trade-offs and pie – expanders is dynamic. It is encouraged by candor, and it is undermined by rigidity. Divorce counsel needs to support the client in critical listening to the other party, to his/her lawyer and to the mediator; and to maintaining an open mind. Far more often than not, reasoned compromise will solve the matter if the parties stay flexible and open.

Fifth, patience is more than a virtue. Divorce mediation does not succeed without it. The process requires confidence building, across and around the table. This is often the parties’ first opportunity for open communications, shielded by confidentiality, and bounded by reasonable etiquette. When the parties feel comfortable, confident in the divorce mediator’s impartiality, knowledge, judgment and “people skills”, and convinced that the opposing party and counsel are serious negotiating partners, real negotiations ensue. Impatience – cutting to the chase so to speak – can subvert this process fatally.

Sixth, counsel needs to be frank with his or her client. Cost-effectiveness and “BATNA” reminders when timely made are critical. In other words, “If we don’t make a deal here, court will cost $X and the likely outcome will be Y.” Without this context, the client lacks true parameters. Stepping back and examining the actual dollars at issue in a particular aspect of the negotiation often reveals that it is just not worth the fight.

Finally, the divorce lawyer needs to realistically assess the client’s true bottom line. Simply saying “no”, or labeling a truly last and best offer for what it is, after allowing the process to work reasonably, is part of every lawyer’s job: no less so in mediation. The process is purely voluntary, and a client deserves counsel’s absolute candor when he or she feels that the process is spent.


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