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Divorce Mediation Blog

Mandatory Mediation is an Oxymoron that the Appeals Court Gets! (At least when the parties have to pay) Ventrice v. Ventrice

Wednesday, March 25, 2015

Recently, a pair of “transformative” mediators claimed that without mandatory mediation, the pre-destined role of mediators as apostles of self-determination will never be fulfilled. We took the authors to task in the Winter 2015 Issue of the Massachusetts Council on Family Mediations’ Family Mediation Quarterly for many reasons, including this proposition. Putting aside the considerable irony that practitioners who seek to transform relationships, not content to merely settle disputes, think they can do so when people are compelled to pay them to do it, we are pleased to see that the Massachusetts Appeals Court is not similarly deluded.

The recent case Ventrice v. Ventrice addressed the appeal of a father whose divorce judgment forbade either party from filing a subsequent complaint for modification until the parties had first engaged a private pay mediator.” Citing Article 11 of the Massachusetts Declaration of Rights, the appellate court wisely vacated this provision because it chilled the rights of potential litigants “…obtain…justice freely, and without being obliged to purchase it.”

As one former Probate and Family Court judge, and two former long-time litigators in that court, we can certainly understand the trial court’s concern and motivations: we can both picture a very thick red file sitting on the bench, the dread that it promotes in all courtroom attendees, and most importantly, the havoc that such cases wreak on children and families. But, on so many levels, mandatory mediation, especially the private pay variety, is just wrong:

  1. As the Appeals Court cited at footnote 14, Rule 2 of the SJC’s Uniform Rules on Dispute Resolution defines mediation as a “voluntary process”;
  2. Few obdurate litigants will enter mediation in good faith and with the emotional skills to use it productively;
  3. It is unseemly for the courts to force people to patronize a segment of the professional community at the cost of others, however enlightened and useful we think we are (!); and,
  4. It undermines mediators, whose very professional personae include devotion to facilitating self-determination for competent persons who make the choice to seek us out.

While the Appeals Court reversed on state constitutional grounds, its decision was sound for all of these reasons, and, in addition another important error that they did not mention. The trial court’s divorce judgment not only mandated private mediation, but it ordered the parties to pay the mediator equally “…unless otherwise allocated by the mediator.” In other words, the judge not only mandated private mediation, but also private arbitration, since mediators, by definition, wield no decision-making authority whatever, let alone one so fraught as a financial sanction, which fee reallocation most surely is.

We love mediation and arbitration. We have actively advocated to foster broad acceptance of arbitration as an efficient, cost-effective form of family law dispute resolution. But whether mediating or arbitrating, our dispute resolution table cannot stand without its most equal among equal legs: voluntariness.

We are glad that the Appeals Court got that.

--------------------------------------------

1"Reclaiming Mediation’s Future: Getting Over the Intoxication of Expertise, Refocusing on Party Self-Determination", by Robert A. Baruch Bush and Joseph P. Folger; Mediate.com Newsletter, December 3, 2014 (#558).

2Presumably, the court intended that the parties actually mediate, rather than just hire the mediator, as the judgment literally required.

3The court did exclude contempt actions from this order.

 

A Very Beautiful Thing About Mediation

Wednesday, March 04, 2015

Sometimes it takes an exception to reveal a rule.

At a recent mediation, one of us asked a question. In an effort to figure out how to navigate a rough passage the parties encountered in their discussion, the question was: "Does that exchange reflect some of what went wrong in your marriage?" The answer, in essence, was "Yes, and..." What came after the "and" was an explanation of the marital breakdown, including an acknowledgement of infidelity by the speaker.

To those of us who represented divorce clients for years, the client revealed information that was unremarkable. As practitioners, we routinely asked questions about "conduct", as in "who did what to whom,” as part of everyday of case introduction, evaluation and rapport building with clients. That is, when it didn't spill out in response to "Hello, how may I help you?"

The information, mostly private and intensely painful to the party, was rarely relevant to reasonable strategy or potential outcome, but it provided an outlet for the client's hurt and anger, it permitted the lawyer to rule out the kind of outrageous conduct (usually financially-linked) that could influence result. This kind of revelation also allows counsel to show empathy and, on occasion, a flash of advocacy, that might bind the lawyer-client relationship, for good or otherwise.

Sometimes, the client's personal story spices up an otherwise ho-hum interview. On rare occasion it may be interesting or titillating. Every once in awhile, it might cause a lawyer's "maybe I don't have it so bad" moment of personal reflection. But, rarely, very rarely, does it lead to a strategic insight or game-changing perspective on trial or settlement. For a client who is recruiting an ally, and for the lawyer charged with assessing "conduct of the parties during the marriage" in M.G.L., ch. 208, §34, the discussion is inevitable.

With both of us now long out of the representation business, a light went on after the exchange with mediation client above. We just don't hear that kind of thing very often anymore; especially when lawyers are not actively attending mediations.

One of the great promises of mediation is the dignity that comes from self-determination; and self-determination includes process, and not just substance. If conduct is relevant to the parties, they will tell you. If it is section 34 headline grabbing stuff, then we will learn it, in time. But for the vast majority of people, most of the time, fault and perceived misconduct, is an intensely private affair. If they have any self-awareness at all (as most mediating parties do), the clients recognize that a marital breakdown is a mutual failing, that cause and effect are murky at best and that spilling it out to a (non-therapeutic) stranger doesn't make the story go away, or even hurt any less. It simply poisons a well that is already too toxic to survive intact.

Many mediators may respond: "We could have told you that before you started.” However, to us it is a small insight worth sharing. It is also reason number 1,642 why it is great to be a mediator.

Have we grown indifferent to our clients' suffering, or even just incurious? We don't think so. We just think that our clients are bright enough to know what they need to tell us, and when; and we trust our instincts and human connections to know the rare occasion when a direct inquiry may be useful to the process, or even necessary (e.g., domestic abuse). That the exchange above is exceptional at all proves the point. We are there to facilitate productive discussion and to help structure dispute resolution. Therapy should be left to therapists; strategic alliances to counsel; and consolation to family and friends.

 

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.

 

Honest Abe Does It Again: Words to Practice (And Live) By

Thursday, January 02, 2014

Just when you think you've heard everything about Abraham Lincoln to inspire and admire, along comes another. At the recent 5th Annual ADR Conference (M.C.L.E.), attendees received a handout from Hon. Dennis J. Curran and Emma Kingdon called "Abraham Lincoln and ADR". At the front end of this fascinating little synopsis about Pres. Lincoln's legal career, appeared the following:

"Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser-in fees, expenses, and waste of time. As a peacemaker lawyer has a superior opportunity of being a good man. There will still be business enough."

Abraham Lincoln (1850); Notes for a Law Lecture, in 2 ROY P. BASLER, COLLECTED WORKS OF ABRAHAM LINCLON, 81 (Rutgers Univ. Press 1953).

Every lawyer should read Judge Curran and Ms. Kingdon’s little gem, and every person who participates in mediation, conciliation, arbitration and principled negotiation should, too. They will find it self-affirming, in some cases perhaps self-correcting.

Mostly, the man could sure speak.

 

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.

 

The Voice of the Child: Call me Sam -- I mean, Call Me Nate

Monday, November 25, 2013

Yesterday's (November 24, 2013) New York Times carried word of the Bode Miller - Sara McKenna interstate custody battle that is tabloid fodder in California and New York. Custody of a toddler is at stake in a tug-of-war over jurisdiction and gender rights. Ms. McKenna moved to New York while pregnant; a NYC family court judge refused to grant custody to her after her son's birth, criticizing her for spiriting her fetus from San Diego for forum shopping purposes; the California Court gave Mr. Miller temporary custody, which order he enforced; a New York Appellate Court reversed its lower court; and a new custody hearing is set for Nov. 25th.

In the meanwhile, we have been hearing about and participating in discussions of how the "voice of the child" should be heard and reckoned with in family courts and in mediation. The topic is not without controversy and is far from complete. With a discussion about it in the context of mediation from the Massachusetts Council on Family Mediation Annual Institute, on November 22nd freshly in mind, we were struck by a small but HUGE fact from the Miller-McKenna story that should be the headline of their collective parenting shame:

THEY CAN'T EVEN AGREE ON WHAT TO CALL THEIR SON

She calls him Sam, while he has renamed the boy Nate. Can it get more insane? And, by the way, both parents proclaim their intent to share parenting.

The court cases will come and go. The Courts will make interesting jurisdictional decisions. A woman's right to control her body will compete with a father's right to a fair shake in custody litigation. Lawyers will prosper and courts will compete for jurisdiction. And, in the end, none of it will matter to the subject of this adult madness.

We shake our heads and simultaneously say to one another "This kid hasn't got a chance."

 

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.

 

A Gathering of Mediators: Part 2

Wednesday, October 16, 2013

Over October 3-6, 2013, both principals of LDRC attended the second annual meeting of the Academy off Professional Family Mediators (APFM), in Denver, CO, of which we are both founding members. While mixing with an international group of dedicated family and divorce mediators, we attended many hours of programming on topics ranging from risk and resilience in children of separation and divorce, to high conflict mediations, the science of forgiveness, bankruptcy and collaborative approaches to marital agreements.

As this group matures, the devotion of its members to finding better ways to serve families in crisis continues to impress, as does the intensity of APFM’s focus on broadly defined continuing professional education. By speaking with, and watching demonstrations of, other expert mediators we learn new skills, stretch existing ones and accumulate greater insight into our field. Applying this learning in our practice cannot help but enhance our ability to provide a higher level of mediation service, always our goal.

We look forward to a long association with and participation in this important new organization.

 

Setting an Example (Just not a Good One)

Tuesday, August 13, 2013

Today’s Boston Globe carried a piece from the Cincinnati Examiner headlined “Couple rebuked over divorce battle”. It relayed a tale of two law professors who have litigated custody and money for 17 years, and counting, at the conclusion of a 10 year-marriage. According to Hamilton (Ohio) Common Pleas Judge Leslie Ghiz “both should be thoroughly embarrassed and ashamed”. The former husband blamed the courts.

Wonder if they ever tried mediation.

 

Guest Post: Is Your Divorce Case Going Nowhere in Court? Maybe You Should Consider Family Law Arbitration

Thursday, August 08, 2013

by Karen Covy

If you want to get divorced, you have to go to court, right? The answer is yes …. and no. Only a judge has the power to divorce you. So, yes, if you want to get divorced, at some point you (or in some jurisdictions, just your attorney) have to appear in front of the judge. But, just because you have to end up in court to finalize your divorce, that doesn’t mean you have to start in court, or stay in court the entire time you’re going through your divorce. Today, you have options.

There are many ways you can work through your divorce now. You can use mediation, negotiation, collaborative law or “cooperative” law. All of those are alternative dispute resolution systems that minimize your time in court. What is newer in the world of family law dispute resolution is arbitration.

Arbitration is like a “mini trial.” Typically, two parties to a dispute will appear before an arbitrator and conduct an informal “trial” of their case, usually in the arbitrator’s office. Each side presents witnesses and evidence. The arbitrator presides over the hearing much as a judge would preside over a trial. The arbitrator listens to all of the evidence and rules on any objections the lawyers might have. Then, after the hearing is over, the arbitrator decides the case and enters an award. That award then gets confirmed in court, and the case is resolved.

So, at this point you may be thinking, “if an arbitration is just a mini trial, why bother? Why not just stay in court.” There are lots of reasons.

  1. You (or your lawyers) get to pick the arbitrator. You don’t get to pick your judge. Just like judges, arbitrators are sworn to be fair and impartial. But, since your lawyer is choosing the arbitrator, presumably your lawyer will choose someone who is not only experienced in the law, but may have special experience with the issues that are involved in your case.
  2. Arbitrators are not burdened with overcrowded court dockets. They are not responsible for hundreds of cases. That means they have more time to devote to your case. That also means that you can usually get your case heard in a much shorter time than you could if you appeared before a judge.
  3. Your hearing is private. The only people at your hearing will be you, your spouse, your lawyers, the arbitrators, and any witnesses you choose to have testify. There may or may not be a court reporter but, unless someone appeals from the arbitrator’s award, no transcript of the proceedings gets filed in court. Arbitration thus gives you much more privacy than you could ever have in court.
  4. Arbitration can be less expensive. Yes, you will have to pay an arbitrator to hear the case and make an award. You don’t have to pay for a judge. (At least, you don’t pay judges directly. Rather, your tax dollars pay the judge’s salary.) So, arbitration will cost you money. But, since arbitrations are usually less formal than trials, it takes less time to go through an arbitration than it would to go through a trial in court. There is also less “down time” in an arbitration. Your lawyers don’t have to wait in court while dozens of other cases get called before them. When the lawyers have an appointment with the arbitrator, they are the only ones there. Finally, arbitrators are free to conduct business via telephone and email in a way that judges just can’t do right now. All of that means a more efficient, and less expensive process.
  5. You can use arbitration to resolve a single issue (called “bullet arbitration”) or your entire case. Sometimes, if you just had the answer to just one question, the rest of your case would be easy to resolve. In that case, you can use arbitration to get a quick decision on that one issue, then take the rest of your case back to court.

So, if arbitration is so wonderful, why isn’t everyone doing it? The simple reason is that, traditionally, people haven’t used arbitration to resolve family law cases. Arbitration has been used for hundreds of years to solve other types of cases. But not family cases. And law is nothing if it is not traditional.

At this point, most states (except Kentucky) allow for arbitration in family law cases. But only a few states have specific matrimonial law arbitration statutes. ( Colorado, Connecticut, Indiana, Michigan, New Hampshire, New Mexico and North Carolina have specific statutes for family law arbitration.) If you want to arbitrate in any other state, your lawyer has to rely on general arbitration statutes that may not exactly fit family law cases. That’s a bit of a challenge. And because there aren’t a lot of people doing family law arbitrations yet, many lawyers aren’t comfortable doing them. Finally, even in states that recognize family law arbitration by statute, the court usually maintains the final say over matters involving children: custody, visitation and parenting issues. So, using arbitration to resolve your divorce issues is not without challenges. But, it’s a choice.

If you are interested in arbitrating your case, ask your attorney about it. Maybe arbitration can help you, maybe it can’t. The bottom line is, it is yet one more option you have for resolving your case yourself and staying out of court.

Karen Covy is a lawyer, mediator, educator, and the author of When Hapily Ever After Ends: How to Survive Your Divorce Emotionally, Financially, and Legally. This article is re-posted with permission from Karen Covy’s blog at: http://karencovy.com/is-your-divorce-case-going-nowhere-in-court-maybe-you-should-consider-family-law-arbitration/

 



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