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Divorce Mediation Blog

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.

 

Post-divorce Tort Suit: Kelso v. Kelso A Concern for Divorce Mediators and Circular Reasoning?

Wednesday, November 12, 2014

The Massachusetts Appeals Court recently reversed a Superior Court judge’s dismissal of a lawsuit for dollar damages brought by an ex-husband against his former wife, after a fully litigated divorce judgment had issued, in Kelso v. Kelso. The technical details could only be interesting to lawyers, parsing claim and issue preclusion, and yielding the result that even though the divorce judge had heard may of the same facts that were alleged in the follow on lawsuit, and had awarded fees to the husband in light of those facts, that none of the legal claims now pressed were at issue in the divorce case. Hence, the appellate court concluded, the suit is not barred by law, and may proceed to trial.

The useful reminder of this case for us, as divorce mediators, is that when parties settle a case, they generally sign off on binding waivers for liability on all acts and omissions of each other, up to the date of the agreement, thus precluding a later suit for damages. Not so, when the parties try a case to a judge because in that context there are no waivers signed of any kind. Part of our charge as mediators is to run a process that leads to knowing agreements. The Kelso case poses a challenge to us: to make sure that clients (who may be harboring thoughts of a later tort suit) understand the effect of the general waivers in divorce agreements; i.e., there will be no suits for any past acts, that are not expressly reserved in the agreement. It is just one more good reason for our firm policy that requires clients to have legal counsel to review any agreements that we draft, at the end of a successful mediation.

On a more arcane level, we ask the following: if the tort cause of action is based on facts that all occurred before the divorce trial, and if the future tort plaintiff did not disclose the existence of a chose in action on his or her trial financial statement, is not any recovery that occurs in the later suit a marital asset that was not divided by the divorce court, and thus, divisible in a post judgment action? If the chose in action was not disclosed on the financial statement, was a fraud committed, yielding a potential recovery back to the tort-defendant?

Starting to sound circular?

 

Rehabilitative Alimony: Its All about the Effort, Or is It? Zaleski v. Zaleski, Part One

Wednesday, September 17, 2014

In its second case decided on the Massachusetts Alimony Reform Act, eff. 3.1.12, the Supreme Judicial Court (SJC) upheld the judgment of Probate and Family Court Amy Lyn Blake in which she awarded 5 years of rehabilitative alimony to the wife at the conclusion of a 16 year marriage. In Zaleski v. Zaleski, the wife claimed that Judge Blake had abused her discretion by opting for this restrictive form of spousal support, with its short time limit and heightened standard for extension, over general term alimony, which could have run an additional eight years, with a lower standard for extension.

A basic inference from Zaleski is that the SJC means business when it comes to implementing the legislative imperative: that the days of unlimited alimony are past; and that even with a marriage of long duration, and a high standard of living, if a trial judge writes comprehensive findings of predictable employability, she should expect to be upheld. That said, the case presents a number of other interesting aspects that we will begin to explore in this and subsequent entries.

We start with a curious line between this case and a previous "unreported" decision of the Massachusetts Appeals Court in Nystrom v. Nystrom, about which we wrote on July 9th. The SJC trumps the Appeals Court, especially when the latter's opinion is only that of one panel, unendorsed by the court-at-large and thus not binding any subsequent court, the differing conclusions of the two appellate courts illustrate to us, as divorce mediators, just how fraught litigation is with chance.

The Nystrom panel vacated a trial judge’s award of 6 months of rehabilitative alimony, focusing on that part of the statute that permits the trial court to limit alimony to a period of five years or less for a spouse who is "… expected to become economically self-sufficient by a predicted time, such as,… [by reason of] reemployment…” That judge had concluded that the wife had the ability to become reemployed within 6 months after judgment, and supported this view by finding that the wife “…had not used sufficient best efforts in becoming reemployed…”,. The appellate critique was that the trial court had not expressly discredited the wife's testimony about her unsuccessful job search efforts, and that there was no conflicting testimony that the judge could use to support her finding.

In Zaleski, by contrast, the SJC endorsed Judge Blake’s conclusion that the wife's “… job search efforts had been sporadic and superficial, and that she had not used her best efforts to secure employment." Further: "the judge was not required to credit, or give significant weight to, the wife's assertions as to those steps she had taken in her job search..." Thus, the SJC concluded, that its trial judge was justified in her prediction that the wife would become economically self-sufficient by attaining reemployment at a predicted time.

What led 2 appellate panels to reach opposite results, in the same rehabilitative alimony context? One difference is that the husband in Nystrom did not offer any expert testimony on the subject of the wife's employability. By contrast, Mr. Zaleski did offer an expert to challenge the wife’s self-serving testimony. (Neither wife had an expert.) But, if either expert witness commented on the wife’s job search, neither panel told us. Moreover, Judge Blake “…did not credit the opinion of the husband's expert that the wife was highly employable as a sales manager or marketing manager … but did find that the wife had skills that were transferable across many fields beyond pharmaceutical and medical device sales." So, at least as disclosed by the SJC, Judge Blake did not rely upon the expert in making the apparently critical finding that the wife's job search had been lacking.

A second difference between the two cases is the ages of the wives whose employability was examined. Ms. Nystrom was 58 years old at the time of trial, while Ms. Zaleski was 13 years younger. One could certainly imagine an appellate panel being more skeptical about the job prospects of a woman who was 60 by the time of its opinion, than for a younger person. A third difference was the economics of the two cases. Ms. Nystrom had a five-year earnings average of under $50,000 while Ms. Zaleski had earned in the range of $170,000 at her peak; and, the former was to receive $300 per week of alimony in the latter 9 times that amount. But, if these factors were critical to the thinking of either appellate court, they did not say so.

Perhaps, the most important factor, albeit unspoken in either case, was that the older woman was given 6 months to find self-sustainability by work while the younger was awarded a far higher sum of alimony for 5 years, at the end of which term, she would be “just” 50. Maybe, in their undisclosed thinking, the SJC justices believed that the policy behind alimony reform was advanced by what it deemed a reasonable rehabilitative period, while the Appeals Court felt the 6 months allotted to Ms. Nystrom simply unfair.

Ms. Zaleski's lawyer, Paul Perrochi, told Massachusetts Lawyers Weekly that the “the lesson to be learned is [in] some of these cases you have to win at trial court." Especially true in discretion-laden family law, where the likelihood of reversal on appeal is generally low. But, as divorce mediators, we have to ask potential litigants, should you be taking the chance on "winning" anywhere?

Next: Rehabilitative Alimony: Whatever Happened to Needs? Zaleski v. Zaleski, Part Two

 

Random Thoughts While Not Blogging

Monday, January 27, 2014

While on an extended holiday break from blogging, the world most definitely did not stop, with mediators and arbitrators staying in the news.

In New York, an arbitrator decided that Alex Rodriguez was guilty as sin, but 49 games less guilty than originally decreed by the baseball commissioner. Arbitration and arbitrary share six letters but they are not supposed to synonymous. Wonder if he felt pressure not to relieve the Yankees of too much salary burden...

In Jerusalem, surrogates for Prime Minister Benjamin Netanyahu pulled the mediation move of the year. Faced with apparent pressure from Secretary of State John Kerry, the Israeli side moved to “expand the pie” by making the mediator pay! Somehow, it seems, that if only the United States would kick in clemency for Jonathan Pollard, peace with Palestinians would be at hand. Guess that’s what happens when the “mediator” has skin in the game…

In Geneva, mediators struggle to get the antagonists in Syria to look at each other….

Meanwhile, in New Jersey, Governor Chris Christie’s invoked the dreary “mistakes were made”, after his staff shut the GW Bridge as political payback, or more aptly, after they were caught at it. Any idea what those mistakes were and who made them? Almost as meaningless as “I take full responsibility”…

Speaking of poor apologies, in Washington, President Barack Obama actually said that “No one is more upset than me” about the tragi-comic ACA website rollout. Nothing like telling an angry public that, really, you are more a victim than they. It makes us nostalgic for “I feel your pain”. And the grammar…

No bit of random reflection is complete without some reference to NSA metadata. Can you imagine the next U.S. Senate battle over a Supreme Court nominee when the Judiciary Committee has access to all of his or her email, texts, cell phone chatter and url history? Or the 2016 presidential race…

While waiting for that rush of new alimony cases from the Massachusetts appellate courts, one last, belated Happy New Year to you!

 

The Governor’s Council is the Problem

Tuesday, December 03, 2013

[NOTE: This piece ran as a letter to the editor of Massachusetts Lawyers Weekly in its December 2, 2013 edition, under MLW’s chosen title “Council Embarrasses Self By Humiliating Nominees”. We re-produce it here in its original form, and with our given title.]

By William M. Levine and E. Chouteau Levine

We read the lead story in the Metro section of the November 21, 2013 Boston Globe, titled "Ethnic tensions flare at judicial meeting", by Michael Levinson, of the Globe Staff, with distress and embarrassment. As practicing family law attorneys in Massachusetts for 44 years combined, one of us as a Probate and Family Court judge for 10, and the last two years solely as a mediators, masters and arbitrators, we have both watched and participated, sometimes in horror, as the Governor’s Council humiliated nominees to the bench. Most often, this rite of passage resulted in confirmation of the governor’s designates: an irritating personal experience for the successful nominees; but one consigned the memory drawer of unpleasantness, dubbed the price of service. On some occasions, the nominations failed, with embarrassed candidates resuming professional lives, disrupted, and in some cases in tatters, because of this demanding, interminable and quite public process.

These lawyers, approved and otherwise, had all been vetted previously by a non-partisan process endorsed and utilized by both major political parties, of several decades’ standing. The Judicial Nominating Committees reviewed, interviewed and debated each of them, informed by enormous paper applications, professional and personal references, member-driven due diligence and state police investigation. They were all reviewed and interviewed by the Governor’s counsel, and reviewed and interviewed again (admittedly, an often pro forma step) by the governor him or herself. Then came the dreaded trip to the Governor’s Council, a constitutional body of politicians elected in 8 districts statewide, after down ballot and mostly unnoticed campaigns.

We have attended many of these hearings. Mostly, we went as supporters of a qualified nominees, in hopes that it “wouldn’t be so bad” for them, and providing requested backing as observers. One of us was the subject of such a hearing, who survived the process intact. Subsequently, when “word” filtered to her from a sitting counselor that she should not appear before this body again (for nomination to another seat) because of a mildly controversial trial decision that she had entered, memories of the first experience revived, and the message was heard. We asked each other then, and ask it now here (as lawyers ask each other all the time): why would anyone subject himself or herself to this process?

Now, for the Globe story. Joseph S. Berman, of whom we knew nothing before last week, offered himself for service to the Commonwealth as a justice of the Superior Court. For today, he embodies the old saw from Claire Booth Luce: "No good deed goes unpunished." The nomination, according to the paper, is dead, despite Governor Patrick's tactical delay to avoid a losing vote. We have all lived this movie before, most memorably for our end of the bar and bench early in this decade, when the Governor’s Council internally, then publicly (Howie Carr? Really.) trashed a highly experienced and respected lawyer who had the misfortune to win nomination as a justice of the Probate and Family Court. First, he was nominated, then skewered by the Governor's Council and finally abandoned by the administration.

Today's version of that earlier travesty is reportedly based on three things: 1) that Mr. Berman has been a prominent part of the Anti-Defamation League; 2) he has contributed money, some would say a lot of money, to Democrat political candidates in the state, and 3) this lawyer once represented a Guantánamo defendant. Now, there may be other reasons that were not reported in the Globe piece, and we have long since earned a healthy skepticism for news reporting, but the story is so unsurprising and so consistent with the history of this blighted body, that it rings true.

Does the Governor’s Council truly believe that these are disqualifying biographical facts when addressing the capacity of a lawyer to discharge the sober responsibilities of the civil and criminal docket of the Superior Court? In a world where ethnic tensions threaten survival of nations and peoples, is it this body's job to fan those flames here, on the matter of fitness to serve as a trial justice? This has nothing to do with whether or not it was fair, smart or appropriate for the ADL to mince words on the Armenian genocide (we believe it was not). In a society where the United States Supreme Court has equated campaign contributions to free speech, is at the Governor’s Council’s job to punish it? And, in a constitutional system where every criminal defendant is entitled to representation, no matter how odious the accused or the crime charged, is it this body’s duty to condemn a man for following the example that we now celebrate in John Adams’ principled defense of British soldiers after the Boston massacre? Do we not want judges with courage?

Once again, it appears, the politics of the petty trumps the public good. The Governor’s Council has debased the judicial confirmation process for far too long. It is unfit to serve its constitutional duty. Massachusetts is the envy of lawyers and judges across the nation because of our ability, more than most, to insulate our judges from political crosswinds. An elected judiciary that looks over its shoulder when making controversial decisions, or to practicing lawyers for campaign contributions, is the bad alternative. “Life” tenure results in a few long-term mistakes, but it is, by and large, the best system going. But, its success depends on a highly motivated few who are willing to run the gauntlet of an unconscionably long vetting process, the financial challenge of trying to earn a living when people know about a pending judicial application and the risk, in the end, of public humiliation and rejection for reasons with no justified rhyme or reason from minor politicians.

William M. Levine and Hon. E. Chouteau Levine (Ret.) are private dispute resolution service providers in Westwood and Northampton, MA. Judge Levine was Circuit Justice of the Probate and Family Court from 2001-2011.

 

Divorce Mediation Mentoring Opportunity: And Public Service, Too

Wednesday, July 31, 2013

Our friends at Mediation Works Incorporated (MWI) in Boston have partnered with the Probation Office of the Norfolk Probate and Family Court to match mediators who are seeking experience and mentorship with high quality and experienced mediators who are staff or other friends of the MWI. The Probate Court receives help in the form of mediated divorce, modification child support, child custody, parenting plan and never-married parent issues cases; and participants gain guidance and hands-on learning.

Josh Hoch is the program creator and MWI’s mediaton services director; and he welcomes inquiries. The link for those interested is www.mwi.org/divorce-mediation-opportunities-and-mentoring.html. Sign up for the program ends September 10th, and space is limited. As divorce mediators ourselves, wish MWI and the Court well in this excellent effort.

 

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.


 

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.

 

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.

 

Divorce Mediation and Arbitration Hybrid

Thursday, October 18, 2012

We have recently encountered an interesting model for a hybrid dispute resolution process. It resulted from discussions with two family law attorneys who were motivated, along with their clients, to try hard to achieve a facilitated settlement, while avoiding the use of public trial in court, in any event.

The parties engaged both of the principals of LDRC to work on the case. They agreed to have their lawyers begin by informally presenting the essential agreed and disputed “facts” to one of us for an evaluation of strengths and weaknesses, followed by mediation. Failing settlement, the parties would then present the key disputed facts to the other LDRC principal, as an arbitrator, to decide and settle the key points presumed to be the root of the parties’ impasse. In the interim, the principals would not discuss the case with each other, at all.

With these key facts no longer at issue, the parties would return to work with both principals, now as co-mediators, bringing all perspectives possible into the mediation room, or quite likely, rooms (the mediators “shuttling” between each party-lawyer team). In the absence of resolution, the mediators would change hats, and simply decide the case as arbitrators.

We believe that this promises an efficient, fair and final process.

 



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