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Divorce Mediation Blog

Who Says that Mediation Needs Reclaiming?

Wednesday, April 01, 2015

Maybe we are the victims of poor training, but we don't think so. In fact our training was pretty good. At core, we learned that divorce mediation is:

A confidential...form of structured negotiation designed to help the clients reach an informed agreement with the assistance of one impartial mediator...the goal of mediation is to reach a fair and lasting agreement, one which will be approved by the appropriate court and allow the clients to divorce. Read more

 

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.

 

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.

 

Massachusetts Alimony: Watching the Pot - Part 2 A Mediator’s Perspective

Wednesday, April 17, 2013

In the last entry we reflected on divorce lawyers’ impatient wait for “clarification” of the complex Massachusetts alimony “reform” statute from the Supreme Judicial Court and Appeals Court. They hope that with appellate “guidance”, they may be better able to prepare their clients for what may happen in court in what are otherwise unclear scenarios. Ambiguity causes anxiety in lawyers and their clients alike. Given the number of cases in the appellate “pipeline” a year out, 2013 is the year when interpretive case law will begin to trickle, or perhaps, flood out of the appellate courts in downtown Boston. This flow may be edifying or confusing, consistent or scattered, but to lawyers, it is essential.

In the meantime, for facilitative divorce mediators, appellate silence is a form of opportunity. Clients frequently turn to mediators and ask: what would happen in court? Three possible answers are:

  1. I know, but I’d rather that the two of you try to figure this out for yourselves.
  2. I don’t know because the case law is confusing and inconsistent.
  3. The statute leaves it up to you to decide what makes sense for you and your family.

The first answer, while true to principles of facilitative mediation, is often frustrating for clients. It can also pose a struggle for the mediator who is trying to foster discussion rather than shut it down, especially in a way that might suggest potential bias; yet the knowledge of appellate interpretation may be important to the parties’ understanding. The second answer is negative, may discourage the spouses and undermine confidence in the knowledge of the mediator.

Answer number 3 is positive and puts the focus back on the parties themselves. Where the legislature left discretion, the parties are left to exercise it by consensus, untrammeled by the imperfect analogies of different appellate panels in other peoples’ scenarios where too few facts are known. Instead of shutting down discussion and limiting options, the clients are free to explore and agree; and so long as they find the “range of reason”, a judge should approve their work.

Take an example. The parties have a long-term marriage but an alimony payor who is close to the federally defined retirement age. The strong language of the alimony statute suggests that alimony should terminate when that age is reached, regardless of other circumstances or equities. But, the statute then provides a “deviation” opportunity: to set a different alimony termination structure for “good cause shown”. What then is good cause?

For the moment, mediators can encourage a wide open conversation on “what is good cause to you?”, free of the knowledge that hypothetical cause a, b or c may have already been ruled “in” or “out”, by one appellate court or another. When the clients can freely list all the factors that seem relevant to them, they can then move on to evaluate them, weigh them, discard them or trade them. The result is an exchange of ideas that can result in an individually tailored suit of good cause: the parties’ own, and not someone else’s or something off the rack.

Once the appellate courts begin to speak, we as mediators will be charged with the knowledge and tasked with deciding in each case what to or not to disclose of the emerging clarity or confusion that the cases bring. From that perspective, we might say “take your time”.

The viewpoint of a family law arbitrator is quite different. We will discuss that in our next entry.


 

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.

 

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.

 

A Workplace Mediation Reflection

Saturday, October 06, 2012

We were recently speaking with our friend and fellow mediator, Josh Hoch of Mediation Works Incorporated (MWI) about his activities regarding mediation in the workplace. We have not engaged in this important activity ourselves, but we find it to be a practice that merits some reflection visa vis our largely family law mediation and arbitration practice.

In divorce mediation, our role is to facilitate negotiations between two legal equals. Certainly no two spouses are identical in intellect, knowledge, emotionality or personality, but they nonetheless enjoy equal status under the law. Not so necessarily in workplace mediation. Work with peers in conflict may be analogous, since their places in the corporate family are more or less equal. But, what of mediation between those in a supervisory relationship with one another?

These protagonists are human equals, but not organizational peers at all. So, how does a mediator facilitate negotiations between people or are expressly unequal? Does the mediator try to level the playing the field between the two so as to create a moment of peerage; or does he or she leave inherent inequality unaltered and intact and simply play the role of critical listener, summarizer, re-framer and brainstorming collaborator?

We will follow up in a later entry.

 

The Defense of Marriage Act: Defending the Indefensible

Thursday, July 05, 2012

Since 2004, gays and lesbians have been legally free to marry in Massachusetts. That is now the law in six (6) states and the District of Columbia. Yet, by congressional action, signed into law by President Clinton, legally married couples here are not legally married for any federal purpose, nor is their status respected in most other states.

The Defense of Marriage Act (DOMA) (declaring a marriage as only between one man and one woman for all federal law purposes and relieving other states of any obligation to recognize a same sex marriage permissibly created in another state) denies same sex spouses more than a thousand benefits, including the right to file joint tax returns, to have tax privileged spousal medical benefits and access to many social security and veterans survivors benefits. In divorce, gays and lesbians may not transfer property without taxation at the time of divorce, cannot claim alimony tax deductions and are prohibited from transferring pension assets without triggering tax consequences, which can be sometimes catastrophic; rights that all hetero-sexual married couples take for granted.

A group of plaintiffs sued in the United States District Court for the District of Massachusetts in the case of Gill v. O.P.M. and 2 companion cases, seeking to have DOMA declared unconstitutional. After defending DOMA and losing in the trial court, the Obama Administration declined to defend it again in the appeal of Judge Joseph Tauro’s judgment wherein he declared DOMA to be unconstitutional. The Department of Justice declared the statute indefensible. The United States Court of Appeals for the First Circuit, agreed with Judge Tauro and upheld his judgment.

The next stop for this controversy is the United States Supreme Court, where others will stand in as surrogates for the federal government in seeking to reverse the First Circuit’s decision, doing what the current government refuses to do: defend the indefensible.

 

Mediation or Arbitration?

Wednesday, April 11, 2012

What is the difference between arbitration and mediation? Many people don’t know. While mediation and arbitration are both referred to as “Alternative Dispute Resolution” processes, they are very different from each other. The following may assist you in deciding which conflict resolution method is best for your situation.

Mediation – all parties attend a meeting or meetings with an impartial third party who is the mediator. The mediator assists those in conflict to identify the issues and explore various options to settle the dispute. The mediator does not render a decision or force any participant to accept a settlement. Whether the case “settles” or not is up to the parties, not the mediator.

In Arbitration, the parties present their case to an arbitrator or an arbitration panel. Evidence is presented although it is often less formally than in a courtroom setting. The arbitrator’s role is to determine the facts, and apply the law to render a decision. The arbitrator will decide the outcome. Arbitrations can be “binding” so the parties can turn the award into a court judgment by a process called “confirmation”; or “non-binding”, meaning either party can disregard the opinion. People use the latter, at times, to obtain a reasoned result that may then bring the parties still closer to settlement.

Both mediation and arbitration are effective and useful dispute resolution methods. People who wish to use alternative forms of dispute resolution need to decide which method is best suited to their needs.

When the parties have an existing relationship that may continue after the dispute is resolved, then mediation is a very valuable tool. Since mediation allows the parties to control both the process and outcome, taking into account the relationship needs and other non-monetary issues are possible. Arbitration is private, confidential and efficient and it may “clear the decks” of a dispute that interferes with reasonable interpersonal functioning, but it is not built on enhanced communications as with a successful mediation.

In mediation, individuals can ask questions of the other side, and its experts or professionals to seek a better understanding of the issues and positions. Arbitration, by contrast, is geared towards the Arbitrator understanding and deciding the issue based on the relevant facts as presented by the parties. It involves single hearing where all of the evidence is presented for consideration. The end result is based entirely upon the arbitrator’s understanding of the events that occurred and his interpretation of applicable law. Source: Mediate.com

 

What is Arb-Med?

Wednesday, March 28, 2012

We have discussed arbitration, mediation and the variant, “med/arb”, in previous blog posts. Med/arb is a process in which an impartial party attempts to facilitate negotiations that will hopefully lead to a resolution of disputes between or among them. If the negotiation fails, then the mediator switches “hats” and makes a decision for the parties as an arbitrator, to which the parties are generally bound. Recall that one of the perceived problems with med/arb, is that people worry that information that comes to a mediator in a confidential process that encourages candor and positional risk-taking, may result in an arbitrated result based on information that may not otherwise have come before the arbitrator, had not he/she been privy to the mediation first.

Arb/med solves this problem. First, the disputing parties offer evidence (information) to the neutral acting as arbitrator at whatever level of formality that the parties themselves have agreed to use. The arbitrator makes a decision, but does not disclose it to the parties at this point, and hopefully never will, because the arbitrator puts that arbitration “award” into his/her “pocket” and then changes hats, this time to that of a mediator. He/she then works with the parties in an effort to facilitate agreement between them. The mediator has not been at all influenced by relaxed disclosures before the decision is written, and the award will not change by what occurs in the later mediation.

If the parties then settle their matter, the arbitration decision has no legal significance, and the parties will never know the result, unless they agree for reasons other than legal impact, they agree to have the arbitrator-turned-mediator disclose it. At Levine Dispute Resolution Center LLC, we see this hybrid process having great merit in those cases where the parties either want or need to know that their dispute will end expeditiously, privately and cost-efficiently, even if they cannot settle it themselves; but they are unwilling to do that until that have a good faith and sincere effort to maintain control over their own controversy by making the full effort of negotiated settlement, first.

 



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