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Divorce Mediation Blog

DIVORCE MEDIATION: Then and Now

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.

 

DIVORCE MEDIATION: WHAT’S A LAWYER TO DO? Part 2 (Lawyer-Assisted Mediation)

Wednesday, February 13, 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 entry. Here, we discuss the role of counsel in lawyer-assisted divorce mediations. A lawyer-assisted mediation is one in which clients have counsel with whom to consult before and after divorce or other family law mediation sessions, but attend the mediation sessions alone; in finalizing agreements reached; and addressing court processes.

These lawyers fulfill the traditional role as educator, describing the law, information gathering and disclosure, potential outcomes in litigation and the ranges of reasonable results on the issues at hand; and as counselor, in considering strategic approaches. How then, are these traditional roles played differently in lawyer-assisted divorce mediations, as compared with litigation or lawyer-led negotiations?

First, divorce counsel must recognize that the lawyer’s role is a support one, and not that of the client’s leading edge. Educating a client in a way that is objective, intellectually honest and direct is always ethically correct, but it becomes even more important when the client is the direct negotiator. Lawyers, who negotiate every day, may try more aggressive (often called “creative”) approaches to negotiation, knowing that they can try different approaches and re-evaluate, re-group and re-calibrate in response to push-back form the other side. For the parties themselves, sometimes negotiating for the first time, this approach can result in embarrassment, confusion, discouragement and ultimately, failure. Divorce mediation is geared to find a more direct route to the “range of reason”. Clients will have the best chance of finding that route, with the divorce mediator’s help, if given clear, reasonable and defensible objectives by counsel, that are grounded in sound information.

Second, helping clients determine the information that they need is critical. Much of the information to which litigating parties are “entitled” is irrelevant to the stakes at hand. Much of it is needlessly duplicative and/or it is marginal at best. Information excess not only clutters the thought process but it also escalates costs unproductively. So, it is critical for the lawyer to discuss with the client how to get the information that he or sheneeds, as distinguished from that which he or she could get in litigation.

Third, reviewing the events of divorce mediation sessions in a clear-eyed way helps clients to vet ideas and proposals, to make mid-course corrections and to gain confidence in their own negotiating skills and successes. Rather than inflame the situation, counsel can support the process, and with it, show respect for the client’s election to pursue it, by reviewing previous discussions and suggesting, or even role-playing, future ones with reasonable parameters.

Fourth, once an agreement in principal is reached, counsel must play the role of drafter or reviewer with care, subtlety and respect. Just as the parties have elected to find a settlement with which they both can live, and is not geared to find a “win” for either of them individually, the use of drafting to create individual victories that were neither sought nor achieved in mediation serves to undermine the parties’ free will and self-determination. Technical correctness is critical. Client protection is important. Seeking or pressing advantage is neither.

Finally, many mediation clients are intimidated at the thought of appearing in court for presentation and approval of their agreement. Unlike many litigation clients, the “final” hearing may be their first court appearance, thus, still mysterious and anxiety provoking. Preparing clients for likely delays and supporting them through court events will be critical to easing their experience in this final phase of their matter.

In our next entry, we will explore counsel’s role in lawyer-attended divorce mediation.

 

Private Case Management: What and Why?

Wednesday, January 23, 2013

Sometimes, people do not see mediation as an option for their cases for very good reasons; yet the public trial system does not meet their needs either. This can be due to time delays in the system, to the public-ness of the forum, to the subject area complexity of the matter to be tried, or other reasons. We have found in our practice that in these circumstances people are looking for an alternative way to manage cases outside of court, to the point of settlement or trial.

This means that they construct a process that is parallel to the courts, for the organized and efficient flow of a case to conclusion, with a professional who understands the legal substance, the subject matter content, the way court processes work and in whom the parties have mutual confidence. This person, who may be called a master or an arbitrator, holds initial conferences with the lawyers to lay out a road map for information gathering called discovery, for the creation of interim orders such as alimony, child support and custody. He or she sets up settlement conferences; and if necessary, tries the case as a judge would, except in a private setting and at the time and place determined by the parties.

Many clients and lawyers find this form of alternative dispute resolution to be effective and efficient.

 

A Year in the Books (and a good one at that) - Levine Dispute Resolution

Monday, December 31, 2012

By William Levine

As 2012 dissolves into 2013, we at LDRC can’t believe how fast our first year has gone, or how incredibly fulfilling it has been.  After opening our doors on January 17th, two (2) jammed open houses, lots of blog entries, our inaugural newsletter, website improvements -- including the launch of our mobile site; and a case flow that we could not have expected so early in our history – with many repeat customers we have much to make us grateful.  

With both of our locations (Greater Boston and Western Massachusetts) humming, our mix of mediation and arbitration continues to evolve.  With direct client mediation and lawyer-attended mediation predominating, our market for private dispute resolution in the nature of case management and decision-making as arbitrator or special master is established and growing.  Our work in advocating for a specialized family law arbitration statute continues, with support for that effort slowly growing.  

We continue to write, to teach and to train mediators.   We will issue our second newsletter early in the new-year, and our latest article will be published in the spring.  Of course, the direct dispute resolution work that drives it all goes on.  As we do it, we are mindful of the pressures of and challenges to our society, government and economy that recent and ongoing events present to all of us; and we are determined to remain a positive force in our community in 2013.  

Thanks to all of our clients, referral sources and allied professionals for your support and encouragement this year.   We look forward to continuing to service you, your clients, colleagues and friends in the coming year; and we wish you all a happy and healthy 2013.

And, please keep looking in:  our blog is just getting started.

 

Post-Thanksgiving Blues: Twinkies’ Mediation Fails

Wednesday, December 12, 2012

We rooted for the mediator, but we lost.

The Hostess vs. baker’s union clash proved too much for the court-appointed mediator, which goes to show that mediation only works to the extent that knowing and determined participants have the will to recognize the overlap in their interests enough to either expand the pie to create more value to share, or to compromise such that each side gets a slice that is “good enough”. In this case of failed mediation, an employer will die and many jobs along with it.

The skilled mediator may help the parties to recognize their interests, and to distinguish them pragmatically from their positions, but he or she cannot create a new pie out of dust and disappointment. Suitors are apparently lined up to purchase the Twinkie product line from the bankrupt estate; but that is cold comfort to the families that depend on Hostess, on both sides of the labor fence.

If the Twinkie itself goes, the mystery cream may be missed but the Hostess jobs will be missed a whole lot more.

 

Masters and the Probate & Family Courts

Wednesday, December 12, 2012

The Probate and Family Court appoint two kinds of “masters”. A master is a lawyer who holds hearings as an extension of the Court itself. One kind is a “discovery master”. The other is a “master, facts final”.

A discovery master aids the Court’s case management by helping the attorneys negotiate, and if necessary by deciding disputes over the exchange of information, known as discovery, in the litigation process. Each side may challenge the discovery master’s decision to the appointing judge, but they rarely do so. This is because the lawyers generally feel that the master process was fair and that a judge will likely address the issue in the same or a similar fashion as the master.

A master, facts final, hears some or all of the contested case, and makes a recommended judgment. The process follows the same rules as in court, unless the parties agree otherwise. One or both parties ask the Court to “confirm” the master’s recommended judgment. If one party disagrees, he or she retains the right to oppose the entry of the master’s decision and a court judgment. The Court retains the right to accept or reject the master’s recommendation in whole or in part.

Where parties cannot settle their matter by direct negotiation, by mediation or otherwise, the use of either kind of master is a way in which they can maximize control over their case, by selecting their own master, and by pursuing what is a mostly private proceeding that most often results in the agreed entry of judgment based thereon.

With our courts in crisis, this avenue is being followed more and more. Most every judge is happy to approve a selected master and to stand by for the master’s result. When faced with long delays and abounding uncertainties in the public trial process, due consideration should be given to the use of a master for all or part of a contested case.

 

Twinkies’ Mediation Reported

Wednesday, November 21, 2012

The Boston Globe greeted pre-Thanksgiving readers with the news that Twinkies are not yet dead. After Hostess Brands concluded that it could not survive negotiations with it bakers’ union, it asked the U.S. Bankruptcy Court for permission to convert its reorganization to a liquidation. Panic-buying consumed pre-fiscal cliff America, as Twinkies sales of $4 and $5 a pair were reported from online buying services.

But, the Bankruptcy judge pulled Ding Dongs from the brink. He ordered the ailing Hostess into mediation with the recalcitrant union, on strike since October, over threatened retirement and health insurance cutbacks. It is a time-limited reprieve: 24 hours to mediate. But the loss of Ho Ho’s, 300 reported jobs in Massachusetts alone and presumably the interests of creditors demanded one last effort, with the help of a skilled facilitator. So, the last firewall between a public starved for nostalgia (despite its presidential election decision – or maybe because of it) and its prized junk food is mediation.

Well, maybe not. The Globe also reported that the pending bankruptcy has drawn companies who are circling to pick the Twinkies brand from the bones of the dying Hostess, should she not survive the last-ditch mediation effort. Naturally, we are rooting for the mediator.

 

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

 

Mediation Comes to the Massachusetts Department of Revenue

Friday, October 26, 2012

This week’s Boston Business Journal reported that the Massachusetts Department of Revenue (D.O.R.) has begun a pilot mediation program after audits, and for cases in which over $1 million is at issue.

The program takes its inspiration from a similar program in use at the Internal Revenue Service.

The existence of the program, which the D.O.R. Commissioner hopes to expand over time, is intended to bring swifter resolution to taxpayer appeals from the agency’s assessments of arrearages, than the pre-existing route to the state Appellate Tax Board (A.T.B.). Completion of A.T.B. proceedings reportedly takes more than a year, and is costly.

Some people question whether D.O.R. appeals officers, who are being trained to mediate, can have sufficient independence to provide effective impartial service as mediators. But, the pilot project, whatever its drawbacks, is the dawning of recognition in yet another area of law, that the government and citizens alike need an efficient and cost-effective forum in which to resolve the bulk of cases that can be mediated to settlement: fairly, expeditiously and voluntarily.

 



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