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Divorce Mediation Blog

Divorce Arbitration: Nine Reasons For a Family Law Arbitration Statute in Massachusetts

Wednesday, March 06, 2013

As discussed in earlier entries, we are advocate for the adoption of a comprehensive family law arbitration act, based on a model created by the American Academy of Matrimonial Lawyers, and customized locally by the AAML Massachusetts Chapter. Here are nine reasons that we believe would make such a new law beneficial.

  1. Parties would no longer seek the permission of a judge to arbitrate. Instead, they would present their negotiated agreement to arbitrate for incorporation into an enforceable order based on their own, binding, determination.
  2. Except for parenting and child support determinations, which would be subject to best interests review by the court at the request of either party, the award would be binding on the court, subject to arbitration review standards only.
  3. The parties could opt in to appellate rights.
  4. Standards for contesting an agreement to arbitrate would be specific, without compromising existing contract remedies such and fraud and duress.
  5. A judge would have clear authority to appoint an arbitrator if the parties have agreed to arbitrate but they have failed to name an arbitrator, or a methodology for replacing one, if necessary.
  6. The obligations of an arbitrator to disclose all possible conflicts would be specific and comprehensive.
  7. Arbitrators would be automatically authorized to enter temporary orders and regulate discovery, allowing speedy determination of preliminary matters, and permitting efficient case management (avoiding the cumbersome aspects of master proceedings).
  8. Awards on family law matters that are subject to modification would be clearly subject to later modification, consistent with substantive law.
  9. Litigants could avoid the costly and inefficient down time that occurs while parties and counsel wait for motion list and trial calendar openings, crowded courtrooms and while they await court decisions. They would have a legally enforceable right to a timely award, maximize their autonomy, privacy, convenience and efficiency.

 

What is a Dispute Resolution Coordinator?

Tuesday, November 27, 2012

For one thing, it is a name that we made up!

More importantly, a dispute resolution coordinator (DRC) is an impartial professional who is named in a settlement agreement, often a family law agreement at or after divorce, to stand by as an out-of-court resolver of disputes. The disputes can be big or small: are the parties properly implementing their property division; do the parties agree on events during the marketing and sale of a home; have taxes been properly allocated; or is support in need of revision?

Generally, the parties grant the DRC the duty of trying to mediate a solution to the issue at hand, but failing resolutions the authority to make a binding decision for the parties. The process can be efficient, flexible and inexpensive. The parties, who are often court-shy after having had some exposure previously, value the easy access, the ability to be “heard” and the finality obtained.

The parties select their DRC, increasing their sense of control, after a period in which they have seen and felt their autonomy compromised by an impersonal and public court system. Their lawyers guide them to the right person for the job, and their agreement usually provides a process for successor DRC’s, should the parties agree that a replacement is appropriate, or if the DRC becomes unavailable.

The parties to every settlement agreement that includes ongoing interaction of the parties should at least contemplate the possibility of a DRC.

 

ALIMONY, PALIMONY AND (NOW) PREGLIMONY The past, present and future of support obligations in Family Law

Thursday, November 01, 2012

By Madeline Marzano-Lesnevich.

Former spouses may receive alimony; former partners may receive palimony; children indirectly receive child support; and now unborn children and their mothers may be able to receive preglimony. “Preglimony?” you ask. Is this even a word, perhaps a spoonerism or mash-up of some kind? If you Google it, the search engine will auto-complete the suffix of the word for you if you make it to p-r-e-g-l, so someone must have searched for it before you did.

Preglimony is the term that is being given to the prospect of support being paid to mothers for the costs associated with the unborn children they are presently carrying. As a comparison, these are the type of expenses that are normally paid voluntarily by adoptive parents, and often paid to a woman in cases of surrogacy by couples or individuals who are unable to have children. The unsettled issue of preglimony pertains only to children born to unmarried couples because when a child is born during a marriage, the husband is presumed to be the biological father of the child unless and until a paternity test demonstrates otherwise. The husband’s financial obligations to the mother (i.e., his wife) and to the unborn child commence automatically based upon the fact of the marriage itself. In contrast, an unmarried mother does not yet have an automatic right to seek contribution for prenatal costs from the putative father.

Furthermore, medical insurance coverage generally cannot extend to another person unless he or she is related by blood, or through marriage or some other legally recognized form of partnership, or unless the obligation is ordered by a court. Therein lies a potential benefit for a newborn child, but whether an unborn child can similarly benefit remains to be debated and resolved.

Through the further development of technology, a paternity test no longer requires a child to be born to confirm the father of the child. A prenatal blood test now allows a woman’s blood to be drawn during the pendency of her pregnancy to genetically link the father to the child. As a result, there is a growing dialogue that suggests fathers should contribute to the cost of the expenses incurred before birth once confirmed to be the father of the unborn child. At present a father’s obligation to contribute to the support of a child only begins at birth in most non-dissolution matters. This raises complex issues that are not yet being addressed by the New Jersey courts.

I anticipate that there will be much debate about which prenatal costs are necessary and reasonably incurred by a mother, when and if she seeks financial contribution from the father, and whether he was appropriately consulted before they were incurred. These prenatal costs would ostensibly include gynecological visits, Lamaze classes, ultrasound expenses and blood tests. However, the question remains whether this would also require the mother to limit her prenatal expenses to those covered by insurance, or for a judge to determine whether a C-section or natural birth was more cost-effective. Further, preglimony may function as a catalyst to the premature termination of relationships due to the pecuniary interests that may become viable, which were not previously made available by the courts. While these types of disputes are likely to occur if in fact preglimony becomes a viable and codified claim in New Jersey, there is a more far-reaching constitutional issue that may also arise from this nebulous financial obligation.

If a father has an obligation to contribute to the cost of prenatal care, he would likely also be obligated to contribute to the cost of an abortion if the mother chooses that option. In turn, this raises the novel consideration that if a father has an obligation to contribute to the cost of the abortion, he may also have a say in its implementation. While the holding of Roe v. Wade may have confirmed a woman’s right to privacy under the due process clause of the 14th Amendment, it did not contemplate that that the pro-life and pro-choice camps could be further fractured into determining when joint legal custody rights really begin. Given that many parents already have a difficult time co-parenting their children with allegations of parental alienation and child abduction unfortunately becoming far too common place, it goes without saying that litigation surrounding abortion, if it ceased to be an individual’s right, would be inevitable. Either way, the legislature will have to determine whether a woman’s constitutional right to choose could be jeopardized by compelling a father’s contribution to her prenatal medical expenses. Further, they will need to consider how the suppression of that right is being quantified and if that potential burden would be outweighed by the benefit of this additional financial obligation.

It will further raise the issue in determining the parties’ respective percentage obligations to contribute to these prenatal costs. In turn, fathers will likely want to know when mothers choose to begin their maternity leave, and whether there should be income imputed to them to offset a potential lack of income. Further, it may incentivize a father’s contribution to these costs in order to ensure that the child’s surname contains his own, at least before or after a hyphen. This will likely increase litigation as complaints for custody and support will be filed approximately six to eight months earlier than they are now. Normally, claims for child support can only be sought retroactive from when the original application is filed, and normally require there to be written notice given to the father.  It will be interesting to see how stringently these two requirements will be applied to the issue of preglimony in the context of unplanned pregnancies.

Moreover, the legal battles that could and would likely arise from the advent of preglimony are numerous. For example, could a father have a say in when and if a pregnant mother could fly and under which circumstances this would be in the best interest of the unborn child? Could a father seek reimbursement for prenatal costs he has paid if a miscarriage occurs due to the fault of a mother involved in a risky behavior? Further, fathers could be permitted to inquire about and potentially limit an expecting mother’s diet and activity in invasive ways never before deemed permissible by the court system. The intricacies of this form of support could further polarize the already too frequent denizens of the Family Part courtrooms of New Jersey.

It has been suggested in other articles that the prospect of these costs would somehow function as a deterrent to unprotected sex. If the prospect of contributing to the cost of unreimbursed medical expenses, extracurricular activities and college expenses on top of periodic child support is an insufficient financial deterrent, I would suggest that the additional trimester or two of support would not make much of a difference in increasing the likelihood of partners practicing safe sex.

The issue of preglimony gives rise to the potential for far reaching and multifaceted consequences in the ever evolving world of family law in New Jersey. On one hand, some individuals may argue that preglimony will overcomplicate and inflame the already litigious nature of our society, and that its limited financial value to a mother will be outweighed by her resultant loss of privacy. On the other hand, some may argue that the financial burden of a pregnancy should not be the mother’s sole responsibility, and that whether a woman is married or unmarried should not alter a father’s financial obligation to his child. It remains to be seen whether the legislature shall give credence to the claim of preglimony, the way that it presently does with alimony and child support. Either way the issue shall further inform the ongoing dialogue about reproductive equality in this country.

Originally printed in the New Jersey Law Journal, Vol. 209, No. 12, on September 17, 2012

 

What is good about mediating with lawyers present?

Tuesday, February 07, 2012

In a previous blog entry, we addressed the converse question to this one. Mediating with lawyers present is the predominant model outside of family law; and for family law outside of Massachusetts, it is far more common than the opposite. Despite the fact that most domestic relations mediation in this state proceeds without lawyers present, there are a number of good reasons why lawyers “in the room” can be advantageous. Inside or out, we always encourage a relationship with counsel throughout the mediation process.

The positive aspects of direct, present legal representation during mediation sessions that we will discuss here are that mediation with lawyers presents offers a quicker process, provides immediate opportunity for input on technical and strategic questions and one in which some clients feel more “supported”.

The reason that lawyer-attended mediation may be speedier than the alternative is that sessions tend to be scheduled for longer durations, such as half or whole day of time (as compared to roughly two-hour sessions spaced a week or more apart). The process is more intensive, intently focused and dependent as much or more on communications of counsel than on those of the parties themselves. Many cases that otherwise might involve several events resolve in one or two sessions, when lawyers participate directly.

The lawyers’ presence at mediation often occurs in a “caucus” style format. Clients have significant time alone with their lawyers to discuss questions about law, potential outcomes in court and strategy. Even when the mediation proceeds with everyone in the same room, there is time allotted for “breakout” sessions with counsel. That is one reason why we have multiple conference rooms. For some clients, this is ready access is preferable to consultation with counsel between sessions.

Finally, for some clients who do not wish to litigate, but do not feel entirely comfortable advocating for themselves, there is comfort in having a lawyer attend the mediation and speak principally for the client. Such a party might find mediation without counsel present to feel too personally confrontational; and other clients simply feel that the process is not “protective” enough without the active involvement of lawyers. Confidence in the capacity for effective communication is important.

For those people for whom the foregoing benefits outweigh those that we discussed in the earlier posting might want to consider a lawyer-attended mediation.

 

Different kinds of mediation

Monday, January 16, 2012

Author - William M. Levine, Esq

Many people don’t know that there are different kinds of mediation. For family law in Massachusetts, the predominant model is one with three people in the room together: the spouses and the mediator. Sessions tend to run in 2 hour segments over a period of a couple or a few months, a 2 or 3 of weeks apart, to permit time for reflection and interim work. People who do this often do, and always should, in my opinion and in the view of Levine Dispute Resolution Center LLC (LDRC), have lawyers, with whom they work between mediation sessions. People need to understand at least the basics of the law that applies to their matter, and they benefit from the sound advice that the mediator is not allowed to give to the parties.

But the second form of mediation is one in which the parties attend mediation with their lawyers. So, five people are in “the room”: the parties, their lawyers and the mediator. This process tends to occur in longer fewer sessions: often one or two, and sometimes 4-8 hours in length. The reason that I put quotes around “the room”, is that in lawyer-attended meditation, the parties sometimes (not always) spend more time in two separate rooms than one, with the mediator “shuttling” between the two, helping to prepare and present proposals for settlement.

Each process has its place and it own set of advantages. I’ll discuss those in a later entry.

 

Why I am here (Bill)

Sunday, January 01, 2012

Author - William M. Levine, Esq

I began the path to mediation and arbitration at Levine Dispute Resolution Center LLC in 1990. After a dozen years of litigating family law cases (two and a half years as a child abuse and neglect lawyer for the Commonwealth of Massachusetts and then as a divorce lawyer in private practice), I already knew that I would want to have a second career. Did I think it would take 21 years to get there? Maybe. It started when, I saw that the American Academy of Matrimonial Lawyers (AAML) was offering training in matrimonial arbitration and I immediately saw that there was a path to using the knowledge and skills of the law office and the courtroom in a way to simplify, streamline and apply intellectual skills and judgment to family law problems; and to thereby mitigate the impact of divorce and related disputes on families in distress. It also offered to the arbitrator the opportunity to work in a private setting, without the restrictions of the public sector, and to make a living in a way that is less tied to the extremes of the public litigation system, and its stressful impact on families – both the clients and the lawyers. I thought that I could blend this work into my litigation practice and both build a new one within, and eventually perhaps, segue to arbitration as my primary work.

What I learned, though, was that family law arbitration was a concept whose time had not yet come to Massachusetts. While some lawyers and clients understood its benefits and pursued them on occasion (and I was fortunate to have some of the find me), this was a field that was (and still is frankly) in its infancy, here, and mostly elsewhere. I never stopped believing in its benefits and potential. In 1995, AAML offered another avenue which had greater currency in the family law marketplace but to which I had had little exposure: mediation. This process had been anathema to the hard-bitten divorce litigation elite that formed the AAML in 1962, but forces within the organization had fought for the chance to introduce and teach this discipline to the formerly negotiation-or-trial-only-oriented fellowship. This training opened another personal window onto the resolution of family law disputes in a less adversarial, sometimes more effective and if successful, far less bruising process for families and practitioners alike.

From that point forward, I knew that I would have a second career. I just didn’t know when..

From 1995, while my law practice continued to grow as a traditional representation of clients in the negotiation, trial and appeal of family law case, I also pursued mediation and arbitration work. I continued (and still do) to pursue (and teach) professional trainings in both areas, and I served for many years on arbitration committees, including as national chair of the arbitration committee of AAML from 2006 to 2009, and for the state AAML chapter before and after. From all of this activity, I learned two critical things: 1) that these alternative dispute processes do work, often well and efficiently, for a broad variety of people and subject areas; and 2) that you just can’t build a sustaining and satisfying practice doing them within the structure of a litigation law firm.

So, after 30 years in the best law collaboration and partnership that any lawyer could possibly wish for, after three successful decades of negotiating, trying and appealing high end and complex family law cases – while pursing ADR as an interesting and satisfying adjunct – I find myself now jumping off the professional ledge into the world of fulltime mediation and arbitration practice. The fact that I am doing it while I am young enough to make it an energetic and, I hope, dynamic practice is a bonus, but one that pales next to the chance to do it with my life partner and wife, who is now my business partner, too!

Will we take part in pushing arbitration to the next level? Will we establish a high level mediation and arbitration firm that creates a new paradigm for such a practice? Stay tuned, and join us in pursuing this dream.!

 



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