fall03 by tim costikyan

Family Mediation Quarterly

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MASSACHUSETTS COUNCIL ON FAMILY MEDIATION 23 Parker Road Needham Heights, MA 02494-2001

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MCFM

FAMILY MEDIATION QUARTERLY Vol. 2 No. 4

Fall 2003

NONPROFIT ORG. U.S. POSTAGE PAID NEEDHAM, MA PERMIT NO. 53289

The Massachusetts Council On Family Mediation is a nonprofit corporation established in 1982 by family mediators interested in sharing knowledge and setting guidelines for mediation. MCFM is the oldest professional organization in Massachusetts devoted exclusively to family mediation.

From The President

Contents

Are mediators overstepping the line? In order to help their clients reach an agreement, mediators may be tempted to supply professional services for which they are not trained or even allowed to provide legitimately.

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Reflections on Mediation & The Place of Mediation in The Scheme of Divorce By Hon. Edward M. Ginsburg, Ret.

Mediators work to help their clients resolve differences and to reach an agreement. In family mediation, the agreement usually concerns the terms of a divorce. Along the way, attorney-mediators may become involved in helping parents determine an appropriate parenting plan for their children an area in which knowledge of child development is useful. Therapist-mediators may find themselves considering the tax implications of the sale of the marital home or a pension assignment. Mediators with training in a field other than therapy or law may be working with clients in applying the factors for determining alimony a legal concern under the state statute. With the impetus of helping one’s clients, mediators need to question not only their knowledge but also their legitimacy in providing information beyond their areas of expertise.

Blinded By Conflict – A Case Study By Kenneth Cloke

The Wedding Dream By Elissa Ely

Financial Planning Expertise in Mediated Divorces By Susan W. Dickie

Mediators without training in therapy or counseling may be tempted to deal with parenting issues beyond their professional education, rather than to refer clients to a therapist for assistance. While their goal is to be of assistance, can they ethically and even legally do this?

Guidelines for Effective Communication in Mediation By June Adams Johnson

Survivor Benefits Under QDRO’s & Other Court Orders, Part I By Lisa M. Ehrmann & Franklin E. Peters

With the aim of aiding their clients, mediators without a legal degree may write up the terms of an agreement in the format of a Separation Agreement, including all the legal “bells and whistles,” rather than as an informal memo. Such language is easy to copy, but is this drafting of a legal document appropriate or legal?

Ethical Quandaries A new column for MCFM members

Clients are not well served, nor is mediation as a profession enhanced, when mediators operate outside of the area in which they are qualified.

25 MCFM News 27 Announcements 28 Editorial

30 Join Us 31 Directorate 32 Editor’s Notice

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Fall 2003 • Vol. 2 No. 4

2 REFLECTIONS ON MEDIATION By Hon. Edward M. Ginsburg, Ret.

Author’s Note: In July 1990, I wrote an article entitled “The Place of Mediation in the Scheme of Divorce” which was published in the Massachusetts Family Law Journal (Volume 8, Number 2) and is reprinted herein. Because the views expressed in that article remain basically true today, I thought it more appropriate to highlight issues which have come to my attention in the last decade rather than to recreate the wheel. First, mediation is now firmly established as one of the primary ways for resolving domestic relations cases. Whereas a decade ago, most cases were resolved either through negotiations between counsel or by litigation, a greater percentage of the public now turn to mediation as the option of choice to resolve their disputes. Second, previously mediators were very concerned with the empowerment of the litigants to make their own decisions and to foster settlement at any price, even if the resulting agreement would have difficulty in receiving court approval. As time evolved most mediators have become willing to play a more active role to insure that, if an agreement is reached, the terms will fall within limits which a court will find to be fair and reasonable according to objective standards. Third, courts still remain very concerned with the language of some agreements which, for the most part, are prepared by non-lawyer mediators. Although a

separation agreement is a legal document in which each provision or term can have serious legal implications and consequences, many mediated agreements contain a lot of hortatory language expressing the good intentions of the parties. The verbiage has little, if any, relevance to the legal proceeding for which the agreement is prepared. At best, this legally irrelevant language adds nothing of significance, and, at worst, some of the language may lead to confusion and trouble later on with respect to enforcement or modification of the agreement. Fourth, the court feels much more comfortable when lawyers have been involved or consulted in the process. Although for many people, the choice of mediation is a means of eliminating lawyers from the process to reduce contention and legal fees, I always felt much more comfortable in accepting an agreement on which independent lawyers made certain that all relevant discovery was forthcoming and that the language of the agreement was clear to each party. Whether an agreement merges or survives in whole or in part can have significant ramifications later on. Many non-lawyer mediators are in no position to understand nuances involved in technical language. Trying to avoid the use of lawyers to reduce cost or to eliminate a possible wrench in the mediation process can turn out to be very short sighted. Fifth, mediation is appropriate in all kinds of family disputes beyond traditional

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divorce cases. Paternity cases which for the court process, their preference is to the most part involve child related issues have the mediator, particularly if that and not complex financial matters are person is a lawyer appear to address the particularly suitable for mediation. Will concerns of the judge. I believe such contests involving intraMediation is now firmly established family contentions benefit from a strict mediated as one of the primary ways for approach. And other resolving domestic relations cases. cases in which the property interests of family or related explanatory role is inappropriate for a third parties are challenged may be assisted by a party (mediator) who, in theory, has structured mediation process. facilitated and empowered the parties to arrive at their agreement. It could also Sixth, when reviewing mediated place the mediator in the awkward position agreements, courts look to see whether or of advocating for his or her agreement and not the agreement falls within the norms the reasonableness of its terms. The court, for similar cases. Although all people are not the mediator, has the function of unique, most cases fall within distinct determining the fairness of the agreement. categories which tend to lead to commonly If the court rejects the agreement, the accepted results. For example, after a long parties have the option of returning for term marriage, it would raise red flags to a additional mediation or reverting to the mediated agreement if one side was leaving court process to resolve the dispute. with ninety (90%) per cent of the assets. Similarly, a court would look with a Seventh, I was always concerned with the skeptical eye at an agreement in which length of the mediation process, young children are split between the particularly in those cases where the parents. A judge would wonder and the law agreement differed significantly from the would so dictate the question of whether norm or was overly complicated. If the the agreement was in the best interest of the mediation process went for a protracted children or designed to meet the perceived period of time, I was concerned that what needs of the parents. transpired was more analogous to labor negotiations in which one side wore down The question arises as to whether or not the the other side. In that situation, the other mediator should appear in court at the side gave in out of desperation to get an uncontested hearing to address the judge agreement in place. The structure provided concerning the mediated agreement. If the by a court process and the application of parties have independent counsel, the the law are designed to compensate for lawyers should each address the concerns such power imbalances. of the court. If the parties appear pro se, they must answer the concerns raised by In conclusion, mediation is now accepted the judge. Because parties may be in the mainstream of family resolution. inarticulate or unfamiliar and reticent about Continued on next page Fall 2003 • Vol. 2 No. 4

Mediators are much more sophisticated as many people through a difficult time in to the circumstances in which the process is their lives. appropriate. As long as mediators realize that the process is not always suitable and do not become The court, not the mediator, has overly invested in reaching an the function of determining the agreement under all fairness of the agreement. circumstances, mediation can be very constructive in helping

THE PLACE OF MEDIATION IN THE SCHEME OF DIVORCE INCREASED ACCEPTANCE The mediation process discussed in this article involves a divorcing couple jointly hiring a neutral person to help them agree on the terms of their divorce. The process is distinct from arbitration in which the neutral person makes a final and binding decision for them, and from negotiation in which the spouses each hire their own lawyers to negotiate the terms of their agreement. Although mediation has not been universally adopted as the cure to the ills of the adversary system, it has received increasing acceptance as a valuable alternative in many circumstances. Many lawyers and non-lawyers are attending on an ever accelerating basis courses in mediation training. While some of the participants in the numerous mediation training programs are looking for a new and exciting way of earning a living, many thoughtful people, lawyers and nonlawyers alike, are increasingly frustrated with the shortcomings of the adversary system in resolving domestic relations cases and are looking for an alternative

which promises a more emotionally satisfactory resolution to the knotty problem of divorce. There is an uneasy feeling among many thoughtful people that the current system costs too much, takes too long and leaves the parties very disgruntled. MEDIATION IN THE SHADOW OF THE LAW However dissatisfied mediators may feel with the current system, and however strongly they may feel about mediation as a constructive alternative, mediators must bear in mind that the legal system establishes the framework within which they must operate. Mediation takes place in the shadow of the law in at least 1 two ways. First, there is the external standard of fairness as an objective criteria against which parties may continually test 2 their own agreements. Second, there is the statutory requirement that the agreement be presented to a probate and family court judge to ensure that it makes proper 3 provisions for the children and the parties. The courts set the parameters of what is an

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acceptable agreement. The court will about the terms of their divorce, and should intervene and set aside any agreement postpone mediation until they are. Some which the judge does not believe to be fair people would rather have someone else and reasonable. People are People are not free to enter into any not free to enter into any agreement and have it agreement and have it automatically automatically approved by approved by the court. the court. The state has an interest in the family, and it is the duty of make their decisions for them and fear the the courts to make an independent very empowering quality which makes determination that an agreement mediation a useful approach in the first adequately protects the interests of the place. The most difficult type of situation parties and children before granting a to detect which is not suitable for divorce. Although parties may wish to mediation involves the so-called hostility avoid some of the perceived problems with junkie. These people often appear to be the adversary system by electing to go to very reasonable and very close to mediation, mediators must be clear in their settlement. It is frustrating when just as an own minds and make it clear to the parties agreement appears to be at hand, some that the imprimatur of the judicial system is apparent insignificant issue, such as who a required part of the process. gets a tea cup or other minor object, intervenes. It takes a skilled mediator to TYPES OF CASES NOT SUITABLE realize that the issue in dispute has nothing FOR MEDIATION No matter how well to do with the failure to agree. The parties meaning or enthusiastic a mediator may be, are just unable, for whatever the reason, to he or she must recognize that every case is get together, and require the intervention of not suitable for mediation. Some cases the court to resolve the matter. require the formalities and protections of

Irrespective of the nature of the parties, some cases require the early intervention of the formal court procedure in order to assure an equitable result. The universal obstacle to healthy mediation is failure to disclose necessary financial information, and the corollary mistrust: the disclosure itself becomes the issue, and nothing can be resolved until both parties are satisfied that all information has been exchanged.

The most difficult type of situation to detect which is not suitable for mediation involves the so-called hostility junkie. the court process. A wife should not be placed in the position of having to negotiate with a husband who has subjected her to ongoing physical abuse and intimidation. A husband should not have to mediate with a passive-aggressive wife who has always gotten her way by whining and complaining. One or both parties may not be ready to make decisions

Although the parties and mediator may

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want to create a fair agreement, they may need the help of accountants, actuaries, appraisers or other experts to develop

hold themselves out to the public as qualified. The people taking the one week mediation training courses come from a variety of backgrounds. After taking a one week course, a The universal obstacle to healthy person should not feel qualified to handle all types of disputes. mediation is failure to disclose Although the mediation training necessary financial information. is a wonderful enhancer, the person’s qualifications are a sufficient information about the value of combination of the mediation training and marital assets before they can discuss a his or her previous experience. A school reasonable division; some couples can do teacher or principal may have great insights this through mediation, but some require into the issues of child development and the help of the court. know little, if anything about the valuation of a closely held business. An accountant PROFESSIONAL COMPETENCE may be an expert on valuing a closely held There are presently certain requirements business and have little insight into child which must be met before a person issues. A mediator must be prepared to qualifies as a “mediator” under the recognize his or her professional confidentiality provisions of M.G.L. limitations and not try to mediate issues Chapter 233, Section 23C. These beyond his or her professional competence. requirements are a minimum of at least Because thirty hours of training in mediation and PERSONAL FEELINGS either four years of professional experience family disputes are highly charged and as a mediator or accountability to a dispute emotional, it is very easy to become overly resolution organization, which has been in involved with one party or the other. A existence for at least three years, or mediator must recognize when his or her appointment to mediation by a judicial or own personal feelings interfere with his or governmental body. The special her ability to be objective. The mediator Commission on Divorce and the must recognize when he or she is so angry Massachusetts Council on Family with one party so as not to treat that person Mediation have been working on the fairly. More difficult to recognize is the development of basic qualifications for situation where the mediator is overly family mediators. Various national sympathetic to one of the parties. If either organizations are pursuing the subject. At situation occurs, the mediator should present, however, there are no requirements consider terminating the process and for licensure before anyone can hold returning the case to the lawyers for the himself or herself out as a mediator. Unlike parties or to the court. lawyers, doctors, plumbers, or electricians, mediators do not have to meet any MEDIATION IS NOT THERAPY particular qualifications before they can Mediation is not therapy. It has a defined

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purpose to help parties agree. It should be of limited duration. If the process drags on for more than ten or so hours, the mediator should examine very carefully what is

possible, not impose on either party an ongoing obligation to exchange financial information. The agreement must cover all the essential issues. Even if the parties agree on many issues and these If the parties cannot arrive at a points are not the subject of discussion during the mediation settlement, the mediator process, the issues must be included should not consider himself or in the final agreement. By the same token, the essential issues, such as herself to be a failure. the responsibility for medical insurance, over which the parties do going on. A mediator is not a therapist and, not agree after mediation, cannot be if the process extends beyond a finite omitted with the hope that the judge will period, it is no longer mediation. If the accept the agreement and the question can parties cannot arrive at a settlement, the be resolved at a later date. mediator should not consider himself or herself to be a failure. Any agreement is The language of the agreement must be not better than a litigated divorce. simple and clear. Terms must be defined so Mediation is not in competition with and is that the parties will not get into a not designed to save the parties from the disagreement at a later date as to the shortcomings of the judicial process. meaning of the language. For example, Mediation operates within the framework words like “joint legal custody” in and of of the judicial system, and a good mediator themselves are vague and subject to much will recognize when it is appropriate and interpretation. The agreement should spell when a more structured process is out who has the responsibility for particular decisions and, if a joint decision is necessary. required, how disputes should be resolved. Time sharing arrangements should be WHAT THE COURTS LOOK FOR IN sufficiently clear so that the parties A MEDIATED AGREEMENT understand where children will be and how Before approving an agreement, whether the parents will communicate with each mediated or negotiated, the court is other about changes in schedule. concerned with both its substance and The form of an agreement should meet form. The agreement must recognize that basic legal requirements. Non-lawyer the parties are getting a divorce and need to mediators should never assume the get on with their lives. If, by its terms, the responsibility for the technical form of the agreement leaves the parties entwined with agreement without the parties consulting each other, it is probably doomed to failure. with independent counsel. Even where the In order for the parties to have a chance to mediator is a lawyer, the parties should be cooperate with respect to children, their strongly advised to consult with finances should be disentangled as much as independent counsel before signing the possible. The agreement should, whenever Continued on next page Fall 2003 • Vol. 2 No. 4

agreement. What may seem insignificant to a non-lawyer mediator, such as whether an agreement survives or merges or

circumstances, may be very constructive in the total scheme of divorce.

Mediation is not dispute resolution on the cheap for the economically disadvantaged. survives in part and merges in part, can take on very serious ramifications as time goes on. Because the interests of the parties are inherently in conflict, each would be well advised to go over the terms with separate counsel. The risk of the agreement coming apart or being disapproved by independent counsel pales in comparison with the consequences of entering into an improvident or not clearly understood arrangement. CONCLUSION It is the policy of the courts to encourage parties to resolve their disputes without subjecting themselves to the harshness of a full blown trial. The courts are also concerned that the dispute resolution process short of a trial does not deprive the parties of the procedural and substantive due process protections which the court system is designed to afford. Mediation must not become a false haven for those to whom the courts appear to be too expensive and too cumbersome. Mediation is not dispute resolution on the cheap for the economically disadvantaged. It is a process which, depending upon the

Footnotes 1. See Mnookin and Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 Yale Law Journal 960 (1979).

2. Dworkin and London, What is a Fair Agreement?, 7 Mediation Quarterly 3 (1989); Fisher and Ury, Getting to Yes, Houghton Mifflin, 1981, p. 14. 3. M.G.L. chapter 208, section 1A; Dominick v. Dominick, 18 Mass. App. Ct. 85 (1984).

Honorable Edward M. Ginsburg is a retired associate justice of the Middlesex Probate and Family Court. He currently serves as the Director of Senior Partners For Justice and heads the Cost Recovery Team of the Massachusetts Turnpike Authority. He would like to thank attorney Joan E. Kolligian, a member of the firm of McGrath and Kane, Boston, MA for her suggestions in the editing of “Reflections on Mediation.” He would also like to thank attorney John A. Fiske of Cambridge, MA, for his insightful suggestions in editing “The Place of Mediation in the Scheme of Divorce” when first published.

"Sweet is a grief well ended." Aeschylus 525 - 456 B. C. Family Mediation Quarterly

BLINDED BY CONFLICT A Case Study by Kenneth Cloke Author’s Note: Excerpted from The Heart of Conflict: A Practical Guide to Transformation and Transcendence, to be published 2004. Sara had been blind from birth. She had also been a victim of childhood sexual abuse, and while she had gone on to become a champion downhill skier, karate expert, and horseback rider, she had not been successful in establishing a satisfying sexual relationship. She met Bill in l978. They did not marry or live together, but dated for about six months. She said she had not wanted a sexual relationship with him. Nonetheless, according to Sara, Bill had raped her. Bill denied doing so, but did not provide an alternate version of their sexual encounter, after which Sara became pregnant. Sara said nothing to Bill about the pregnancy and had the baby, Scott, alone. While undergoing counseling regarding the after-effects of her rape, Sara decided, when Scott was 2 years old, to confront Bill with his child. At first Bill denied paternity though his son looked a lot like him. He asked Sara how she knew Scott was his. It took him a while to realize that Scott was his son, and he had lots of misgivings about Sara not telling him. He began to see Scott for a couple of hours on Saturdays, then steadily increased the time they spent together. He began to pay child support and agreed in mediation that the amount he was paying was not sufficient. Sara felt she had supported

Bill’s relationship with Scott and acknowledged in mediation that he had “stuck in there.” Two years previously, at a workshop for single parents and their children attended by Sara, Scott drew a picture revealing sexual content and suggesting possible sexual molestation. An allegation of possible sexual abuse was filed against Sara’s mother, who had been Scott’s primary caretaker, which everyone felt was unfounded. Scott was taken from his home and from his father and mother, and eventually sent to Sara’s sisters, who refused to allow Bill to see him. Sara and her mother hired an attorney, and while Bill felt he had been supportive of them, he discovered in court that his paternity was not established and he was not recognized as Scott’s father. All the latent hostility Sara and Bill felt toward one another came out in court, and the child abuse case turned into a bitter custody battle. Bill hired an attorney on his own and was finally able to secure a joint custody order with visitation every other week. Scott began spending one week with his mother and the next with his father. Sara began a relationship with another man, Ted. They discussed marriage, but Sara had been troubled throughout the relationship, and in the course of several years together they had not had sex with one another.

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In August, Sara and Ted decided to move to I asked Sara to start because she seemed a small town in central California about 4 the most agitated and untrusting, but she hours from Los Angeles where she and Bill deferred to Bill. As Bill spoke, however, had lived and worked, and where Scott, she continually interrupted him. Bill now age 7-l/2, had I agreed to begin the mediation, and gone to school. She gave brief notice to told them that if they felt I had not been Bill of her decision to helpful at the end of two hours move and none to the they would not be required court. Bill applied for and received a to pay. I have done this on several temporary restraining occasions... and have never not been order preventing her from removing Scott paid at the end of the session. from Los Angeles and applied for sole custody, alleging that Sara threatened to leave if she continued, which was in violation of the court’s prior order was difficult because she was unable, due regarding joint custody and visitation. to her blindness, to take handwritten notes for later reference. I shifted back to Sara, Sara appeared in court to oppose the order but she was less informative alone than in and lost. School was due to start in one response to Bill’s narrative. I asked her week, both sides were at complete how she felt about the one-week-on/oneloggerheads, and a trial was set for week-off schedule, and she said it was not October, long after school started. They working for her, or, she thought, for Scott, had each spent tens of thousands of dollars because the transitions were difficult. She on legal fees and were no closer to a expressed concern over changes in Scott’s solution. In desperation, Sara’s attorney behavior after returning from Bill’s, where recommended mediation. there were constant videos and non-stop talk about ninjas, He-Man, Superman, and At first Bill was reluctant to come to other escapes into fantasy. She felt these mediation and refused to pay for it. Sara activities were excessive and interfered said she was unable to pay. In order to get with Scott’s emotional development. them started, I agreed to begin the mediation, and told them that if they felt I I asked her what she wanted to happen. had not been helpful at the end of two hours She said she wanted Scott to be with her for they would not be required to pay. I have nine months during the school year and done this on several occasions when the was willing to give up all holidays and party’s conflicts prevented them from vacations to support Bill’s relationship with agreeing on who would pay for the him. She said she wanted them to be close mediation, and have never not been paid at and did not want to interfere with their the end of the session. relationship. I asked her to speak directly to Bill and tell him what she wanted and

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why. She turned to him and repeated what she had said, but more directly and emotionally in a heart-felt way. I then asked Bill to tell Sara directly what he wanted and how he felt. He said he loved his son and wanted to see him all the time, but recognized that Scott needed his mother also and was willing to do whatever was necessary to help him. He felt Sara should have given him more notice and consulted with him, rather than just announcing her move. He told Sara he loved her also, but recognized that they were unable to get along. He regularly invited her to talk but she always hung up the phone or walked out on him.

acknowledge their son’s need to spend as much time with each of them as possible. I pointed out that they had a much harder time reaching agreements when they discussed what happened in the past than when they focused on their son and on his future. I summarized their requests and asked whether they would be willing to agree on a solution based on what would be best for their son.

They both agreed that many parents lived apart and exchanged children during school holidays; that many psychologists counseled against switching children too frequently, or from school to school; that children generally prefer not to switch schools before graduation; that courts often He agreed that the every-other-week prefer mothers as the primary custodial schedule was not perfect. He had moved a parent for younger children and fathers for older children and The mediation succeeded because it boys; and that as encouraged them to recognize that they Scott grew older he had one interest in common: they both would probably want to have a loved their son. As a result, they were direct say in where willing to sacrifice their anger at one he would live during his school another for his welfare and commit to year.

finding an imperfect solution outside the legal system and making it work. few months earlier to an apartment only a block from Sara’s so Scott could walk between their houses. He appreciated Sara’s acknowledgment of his relationship with Scott and felt joint custody was a compromise he had agreed to because it would help Scott. I thanked them for the honesty of their statements and their willingness to

We discussed a number of possible solutions, and they agreed in general that Scott would need to spend his school year with one parent and his holidays with the other. We also discussed travel arrangements, improving their communications, and increasing child support. But at the end, Sara and Bill still each wanted to have Scott live with them during the school year. I asked whether

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they would consider dividing the elementary school grades into two sets, where Scott would spend 3rd and 4th grades with one parent and 5th and 6th with the other.

bygones be bygones, recognize that they both loved Scott more than anyone, and discuss any issues regarding his future and well-being with each other before jumping to conclusions.

Bill said he was willing to work things out I congratulated them on their success in and be more generous than he had planned reaching these agreements, on their to be before coming to the The mediation transformed their mediation. He relationship by successfully establishing a offered to let Scott live with collaborative parenting relationship in place Sara for two of the competitive one that had developed years, then over time - not just as a plan, but as an with him for two years, and experience… It encouraged them to speak spend school directly to each other from their hearts. holidays and to compromise and every other weekend during that time with willingness the other non-custodial parent. Sara acknowledge each other’s love for Scott. I then created a heart opening, and told them quickly agreed. how lucky I thought he was to have two I wrote down their principal points of parents who loved him so much. They both agreement, which included drop-off times began to cry, and talked about how much and places, an agreement to be flexible, to they loved him and wanted the best for make these exchanges a priority, to take him. I said I hoped they would continue to Scott’s wishes into consideration in acknowledge and respect each other, and selecting his junior high and high school, to recognize how difficult the past few years meet again to discuss their communication had been for both of them. I suggested problems and child support issues, and to some ground rules for their future return to mediation if there were any future communications and set another date for problems. Bill suggested that they see mediation. Bill offered to pay for the Scott together after the mediation to tell mediation, and as they left, he reached over him together what they had decided. Sara and hugged Sara, who hugged him back. agreed. They agreed to tell Scott that they They both stood and cried for a while, then had resolved their differences and were left arm in arm. going to support each other more in the future. They agreed that they would do The mediation succeeded because it more things together with Scott and not let encouraged them to recognize that they had their past disagreements get in the way of one interest in common: they both loved their future cooperation. They agreed to let their son. As a result, they were willing to

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sacrifice their anger at one another for his welfare and commit to finding an imperfect solution outside the legal system and making it work. This result was encouraged by their experience with the costs, delays, uncertainties, and emotional damage they had suffered in the courts. The mediation permitted them to vent their anger at each other, yet recognize that their anger would not assist them in making decisions regarding their son. At various points, I made them aware of their specific communication problems and asked them to focus on the future rather than the past. I stopped their arguments periodically with process interventions, pointed out specific communication problems as they occurred, and occasionally said, “Let’s take a look at what just happened in your conversation with each other.” I worked with them to create a common agenda, refocused their attention on their problems rather than on each other, and provided them with information regarding criteria other parents had used to solve this type of problem. The mediation did not let them become sidetracked in collateral questions of whether Bill actually raped Sara, whether their son had been molested, etc., since none of these issues, in their minds or mine, should have determined where Scott would go to school. Sara’s blindness was acknowledged and addressed openly, but not allowed to dominate or distort their negotiations. The agreement was not put off until later, but written, read aloud and signed. In closure, I encouraged them to recognize their mutual love for their son and

suggested that they might actually become friends over a period of time. They began to reach forgiveness and reconciliation at the moment they agreed to tell their son together what they decided, and minimize his feeling that one of them had been treated unfairly, or that he had greater power than he did. In this way, they took a small, significant, collaborative step toward joint parenting, and toward connecting with the heart. In short, the mediation transformed their relationship by successfully establishing a collaborative parenting relationship in place of the competitive one that had developed over time - not just as a plan, but as an experience. It allowed them to break through their animosity to re-establish a family system, even at a distance. It encouraged them to speak directly to each other from their hearts, and expanded the dimensions of their resolution, communication, and relationship. This allowed them to evolve, and transcend the limits of their earlier relationship. In a follow-up mediation several months later, I was told by both Bill and Sara that their agreement had held and their communication had never been better. Scott was doing well, the transitions had become less difficult, and their new relationship had reduced his level of anxiety, hostility and acting-out. They both felt they were starting to become friends again. Kenneth Cloke is the director of the Center for Dispute Resolution in Santa Monica, CA. He has been a mediator, arbitrator, university professor, and judge, and the author of several books, including Mediating Dangerously. Ken can be contacted at <Kcloke@aol.com>.

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14 THE WEDDING DREAM By Elissa Ely

It was a beautiful day for a wedding, though most of us did not know the bride or groom. The ceremony was on the lawn of an elegant hotel set just above a public beach walk. An invited crowd gathered inside the hotel fence. They sat on white chairs, fanning themselves in the autumn sun and checking their film. One little boy, prisoner to his suit, ran over to the grass and stood on his head in an attempt to free himself. The larger crowd, uninvited, hung on the other side of the fence. We were strangers who had gathered together to witness the union of other strangers. Most of us had been meandering along the beach walk when we heard music and followed it upward. Competition for the best location was fierce.

course, were already standing, and so we had the long view. We could see the bride descending from the hotel deck, smiling uncontrollably. She was all curls and careful steps, wearing a sleeveless gown with long gloves and roses in her hair. “She’s a vision,” said the woman who had no patience for delay. She sounded enraptured. On their side of the fence, the little girls were also enraptured, and the bride seemed enraptured, too. All this rapture was for the wedding. That’s fine, though it might be far more efficient – certainly for paperwork purposes – if marriages weren’t actually legalized until years after the ceremony. Half of us on both sides of the fence were formerly married or due to divorce at some time in the future. Getting married is not the same as being married.

Ten years is long enough to realize that each of us is essentially solitary, isolated in fate no matter how entwined biblical and marital sources promise we can be. “Stand here, honey,” said one woman to another, clearing a spot next to her. “You’ll see better.” She pointed to a place that looked directly into a tree. “Think it will start on time?” said a third woman, prepared to be annoyed by any delay. Her husband looked at his watch. This was worse than shopping. The wedding march began, and everyone sitting on chairs stood. A few little girls in petticoats jumped up and down. We, of

Maybe 10 years out is long enough for a couple to be informed. By then there is data behind the romance. They can certify their choice. They have withstood small disagreements blooming into large ones and large ones deflating, sorrows that should have pulled them apart, children perhaps, and pets. Ten years is also long enough to realize that each of us is essentially solitary, isolated in fate no matter how entwined biblical and marital sources promise we can be. Marriage saves no one from their own suffering; you can’t hide in the institution – suffering will sniff you out.

Family Mediation Quarterly

woman pushed through our crowd. She saw the man and ran over to him. Her face was filled with relief. “Daddy,” she said, trying Marriage saves no one from their own to sound light. “You got away from us! suffering; you can’t hide in the What’re you doing institution – suffering will sniff you out. here?” “I was looking for your mother,” he union. The right color will be some long- said. From his daughter’s face, it was clear lasting survivalist shade that doesn’t show that the person he sought was neither in the stains and cleans easily, something wedding party nor in the world. celebratory but practical. She took his elbow and started to lead him The bride was not thinking any of this. Of away. “We’re over here, Daddy,” she said. course not. She walked in a dream, and “Come join us.” But the man kept turning dreaming was what the crowd sought from back. There was something he wanted to her. It is a lot to ask, but most brides seem find, something he wanted to see. We to enjoy it. Just as the ceremony began, an uninvited guests cleared a path to help her old man wandered up from the beach walk lead him toward the beach. As soon as they to the fence. He seemed frail and were gone, we surged back to the fence. No disorganized, and he hung onto the top rail one wanted to miss the rings. for support. At first he didn’t notice what Elissa Ely, MD, is a psychiatrist, a monthly was occurring, but then his gaze focused, columnist for The Boston Globe, and a and he watched intensely. featured contributor to National Public A few minutes later, a frantic middle-age Radio. With luck, this marriage we wandered past might last 10 years. If it does, white will no longer be the right color to describe the

“Most everybody in the world climbs into their graves married.” Thornton Wilder

Fall 2003 • Vol. 2 No. 4

Family Mediation Quarterly

Sally

3,500,000 3,000,000 2,500,000 2,000,000 1,500,000 1,000,000 500,000 63

Net Worth Comparison vs. Her Age - Plan 2 James

Sally

A CDFA can assist divorce mediators by providing enhanced financial planning expertise to clients negotiating the end of their marriage. Its always better to see as much light as possible at the end of the tunnel.

2,500,000 In Plan Two each party 2,000,000 makes some compromises. 1,500,000 Sally agrees that she can 1,000,000 work full-time in three 500,000 years, once their two 0 children are both in college. Seventy-five percent of the liquid assets of $100,000 are given to Sally to augment her working capital until her salary increases. Sally receives alimony for an additional 7 years (to age 65), and the amount increases to 35% of the gross income above the child support base income. Here a mediated settlement can substantially improve Sally’s financial future.

3,000,000

moment in time, but to allow both I know from personal experience that divorce is a spouses a reasonable amount of very difficult and stressful security after their divorce. process. I am sure that mediators do well in helping clients realize what has to happen financially in terms of While exact predictions are impossible, the separation of assets, and negotiating clients are substantially benefited when alimony and child support. However, a they can see basic trends and anticipate the Certified Divorce Financial Analyst likelihood of their financial position in the (formerly a Certified Divorce Planner*), is years ahead – up to retirement and beyond. specifically trained to predict the future The goal is not to make the net worth of effects of a proposed financial settlement. each spouse equal at any moment in time, but to allow both spouses a reasonable Certified Divorce Financial Analysts often amount of security after their divorce. work on teams with mediators and attorneys to help achieve clients’ goals. We By way of example, the following graphs can be of assistance by using specially show the net worth of divorcing clients in designed divorce software to forecast the two scenarios. James, age 50, earns long-term effects of a particular settlement. $200,000 annually as an attorney. Sally, It includes inputs of net income after taxes, age 48, earns $20,000 annually as a partchild support, and alimony. Expenses are time social worker. Their two children are recorded as yearly expenses of each party. ages 16 and 19.

James

I am not a mediator and happily so, given Mortgage payments are separately tracked, the difficulty and challenge of your job! I as are deductions or additional taxes for am in full admiration of what you do and alimony, college funding, liquid assets, grateful for the process when clients can retirement assets, and real estate. Given take advantage of it. As a financial planner, certain assumptions, the software I also weave through the web of financial automatically applies formulas for salary issues that are laced with much hurt and increases, inflation, and return on emotion. We hear many of the same voices. investments. Once the data is entered, “No way am I going to pay any of my hard- clients can compare spreadsheets tracking earned retirement money to my spouse.” the cash flow and value of their respective “His salary is so much bigger than mine, he assets on an annual basis, or analyze graphs will be fine in retirement and I won’t.” “I of net worth projected for as far ahead as can’t afford to pay any more alimony.” “I twenty or thirty years. want to keep the house, but The goal is not to make the net don’t know if I can financially survive if I do.” worth of each spouse equal at any

Net Worth Comparison vs. Her Age - Plan 1

Susan W. Dickie

In Plan One the assets are split 50/50. Child support is based upon the Massachusetts Child Support Guidelines. Alimony is projected for ten years at 24% of gross income above that used in calculating child support. James will pay for college expenses, with the assistance of some college savings. The Plan One graph plots the unacceptable results for Sally, as she will run out of money at age 65.

FINANCIAL PLANNING EXPERTISE IN MEDIATED DIVORCES

Footnote * As of October 1st, 2003, the Institute of Certified Divorce Planners is now The Institute for Certified Divorce Financial Analysts. Therefore, the designation has changed from, “Certified Divorce Planner” (CDP), to “Certified Divorce Financial Analyst” (CDFA). Susan W. Dickie, CFP, CDFA, works with Wingate Planning Corporation, a Registered Investment Advisor and the financial planning affiliate of Wingate Financial Group, in Lexington, MA. Susan can be contacted at (781) 862-7100, or (781) 8915008, or at <susan.dickie@comcast.net>.

Fall 2003 • Vol. 2 No. 4

18 GUIDELINES FOR EFFECTIVE COMMUNICATION IN MEDIATION

SURVIVOR BENEFITS UNDER QDROs AND OTHER COURT ORDERS

By June Adams Johnson

By Lisa M. Ehrmann & Franklin E. Peters

I developed these guidelines for one particularly difficult pair of mediation clients. However, in experimenting with its use with other clients, it seemed to speak to most people in some way. After introducing the concepts, I would leave the list on the mediation table. Often one spouse would point out one of the bullet items to the other in the course of the mediation and it helped to be an “anchor” to good process. The succinctness of the bullet items was a reduction to a simplicity that people remembered. Now my office includes it in our introductory packet.

• Listen carefully to the other person; do not run emotionally or physically. • State your own feelings and thoughts as your own. • Try not to let past history control your understanding of the now. • Ask for time out if you are feeling overwhelmed or on stimuli overload. • Always set a time to talk again. • Create new history.

• Do not interrupt the other person speaking. • Do not characterize the feelings or the actions of the other person. • Do not assume you know the other person’s motives for a given act; ask.

June Adams Johnson is an attorney-mediator, and founder of Common Ground Mediation Services, in Groton, MA from . She can be contacted at (978) 448 8800, or at <juneadamsjohnson@charter.net>.

“On both sides more respect.” William Shakespeare

Family Mediation Quarterly

Authors’ Note: This is the first article in a two-part series concerning the provision of survivor benefits in domestic relations orders. Part One covers survivor benefits in Qualified Domestic Relations Orders for qualified ERISA-covered plans. Part Two will cover survivor benefits in non-ERISA plans, including state and federal government pensions.) Since the Retirement Equity Act became law in 1984, the use of Qualified Domestic Relations Orders has become a very practical and popular option for dividing the qualified retirement plan benefits of the parties in a divorce proceeding where there are not sufficient other assets to allow the pension benefits of one spouse to be entirely offset by other assets which would go to the other spouse. An often overlooked, but extremely important part of QDRO drafting (and agreement drafting) for defined benefit pension plans is providing for survivor protection for the Alternate Payee. If the Plan Participant should die prior to the Alternate Payee, and the QDRO has no provision for survivor protection, then the Alternate Payee is likely to end up with no benefit at all after the Participant’s demise. For this reason, it is of the utmost importance that QDROs for defined benefit pension plans make explicit provision for survivor protection for the Alternate Payee. If such explicit provision is not in the QDRO, then it is likely that the Alternate Payee’s benefit will cease upon the death of the Participant.

A. Defined Contribution Plans Defined contribution plans typically are those plans that have individual accounts for each Plan Participant. (Note: be aware that not all plans that have individual Participant accounts are defined contribution plans.) Some commonly seen examples of defined contribution plans include profit sharing plans, money purchase pension plans, 401(k) plans , savings plans, thrift plans, employee stock ownership plans (ESOPs), and 403(b) tax sheltered annuities (TSAs) used by many non-profit organizations. (TIAA-CREF retirement annuity contracts, used by many colleges, universities and hospitals, are a well known example of 403(b) tax sheltered annuities.) A defined contribution plan QDRO simply specifies that the plan administrator is to establish a new, separate account for the Alternate Payee, the spouse of the Plan Participant. The amount that was in the Participant’s account prior to the QDRO is divided and a portion goes into the Alternate Payee’s account and the remainder stays in the Participant’s account. The total in the two accounts is the same as the amount in the Participant’s account immediately prior to the QDRO. The QDRO itself specifies the precise portion which is to go into the Alternate Payee’s account. Once the Alternate Payee’s account has been established by the QDRO, it is henceforth administered only for the benefit of the Alternate Payee

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and her/his beneficiaries.1 The Alternate court order) does not provide for survivor Payee has a right to that account regardless benefits for the Alternate Payee, then no of whether the Plan Participant continues to further benefit would be payable to the work for the employer, quits, gets fired, Alternate Payee after the Participant’s retires, becomes disabled or dies. The death. All benefits would cease upon the Alternate Payee’s account is in no way Participant’s death in that circumstance. linked to the actions or the fate of the Participant. The proceeds from the 1. Qualified (ERISA) Defined Benefit Alternate Payee’s account are payable to Plans QDROs, as that term is defined in the designated beneficiary or beneficiaries the law (Section 415(p) of the Internal upon the death of the Alternate Payee. The Revenue Code) apply only to plans that are death of the Plan Participant has no effect covered under the Employee Retirement on the Alternate Payee’s account one way or the Be aware that not all plans that have other; upon the death of individual Participant accounts the Participant, the are defined contribution plans. Alternate Payee’s account remains the property of the Income Security Act of 1974 (ERISA). Alternate Payee. Accordingly no special Generally this means tax qualified plans provisions are necessary to protect the which are sponsored by private sector employers for the benefit of their Alternate Payee’s interest in the plan. employees. This does not include B. Defined Benefit Plans Defined benefit governmental plans at any level, federal, plans are those plans which do not have state, county or municipal; it does not individual accounts for each Participant, include military pensions. generally speaking (but note that there are exceptions). Rather defined benefit plans However so many workers are covered by pay an annuity benefit to the Participant at ERISA pension plans to which QDROs can retirement – the amount of the annuity is be applied, it is important to focus on how determined by a formula set forth in the to provide for survivor protection for the plan. Depending upon form of annuity Alternate Payees under these private plan elected by the Participant at retirement, the QDROs. annuity benefit may stop upon the death of the Participant. In fact, under most defined 2. Shared Interest vs. Separate Interest benefit plans, if the Participant is not There are two fundamentally different married the standard option would be a ways of dividing annuity benefits under single life annuity where the benefit is defined benefit plans. One is referred to as payable only for the life of the Participant – the Shared Interest Approach (or the no further benefit is payable after the sharing method) in which the Alternate Payee “shares” in the Participant’s lifetime Participant dies. Generally speaking, if the QDRO (or other benefit. Under this method, the annuity on

Family Mediation Quarterly

the life of the Plan Participant is left intact, that is, it continues to be on the life of the Plan Participant. The Alternate Payee’s share is paid to her only when the Plan Participant’s benefit is payable to him. The Alternate Payee’s benefit starts when the Participant’s benefit starts and it stops when the Participant’s benefit stops, specifically on the death of the Participant. This is really a variation of the traditional “if, as and when” kind of division, but under the Shared Interest QDRO, a separate check is sent to the Alternate Payee for her specified share of the benefit – but only while the Participant is collecting his benefit.

defined benefit pension plans that we have seen permit the use of either method.)

a. Shared Interest Approach (Sharing Method) In the Shared Interest Approach (or Sharing Method) the Alternate Payee “shares” the benefit which is payable to the Participant. If the Participant’s benefit is payable as a single life annuity on the life of the Participant, then the Alternate Payee’s share would stop upon the death of the Participant, even if the Alternate Payee is still living. However it is still possible to provide survivor protection for the Alternate Payee under this method. In order to do so, the QDRO must specify that the benefit is to be payable in the form of a The other is referred to as the Separate joint and survivor annuity with the Interest Approach (or the dividing Alternate Payee as the survivor annuitant. method). Under this method, the Alternate For example, if the QDRO awards 50% of Payee’s benefit is truly separated from the the Participant’s total benefit to the Plan Participant’s benefit, and a separate Alternate Payee while both parties are annuity is created on the life of the alive, then it could also specify that the Alternate Payee; that is, the Alternate benefit is to be payable as a Joint and 50% Payee’s benefit is payable for her lifetime Survivor Annuity. That way, upon the and will not cease upon the death of the death of the Participant, a 50% survivor annuity would Defined benefit plans pay an annuity benefit continue to be to the Participant at retirement – the amount payable to the Alternate of the annuity is determined by a formula Payee for the remainder of set forth in the plan. her lifetime. Participant; it stops only upon the death of (If the QDRO calls for a different the Alternate Payee and is independent of percentage to be awarded to the Alternate the life of the Plan Participant. (Note that Payee while both parties are alive, then it some private pension plans require the use may not, and probably will not, be possible of one or the other of these two methods, to find a joint and survivor annuity that thus taking the decision about which matches so perfectly with the Alternate method to use out of the hands of the Continued on next page parties. However the majority of private

Fall 2003 • Vol. 2 No. 4

Payee’s share, because retirement plans timing of the death of the Participant. The will only have available a limited number Participant retains the right to receive his joint and survivor annuity options, e.g., J&50%SA, There are two fundamentally different J&75%SA, J&100%SA, ways of dividing annuity benefits and sometimes only one under defined benefit plans. or two of these options.) remaining share of the benefit in the form The use of a joint and survivor annuity in of a single life annuity on his life or in any place of a single life annuity means that the other form permitted under the plan. The total benefit payable while both parties are benefits of each party are truly separated alive will be reduced in order to cover the and each party gets their own annuity cost of the survivor annuity. Typically this benefit in the form that each elects. reduction is shared by both parties, that is, the benefit that each party receives is This means that there is no need to make reduced by the same percentage. However any special provision for a survivor benefit such a pro rata allocation of the reduction is for the Alternate Payee. Since the Alternate not required. The allocation of this Payee’s benefit is payable for her lifetime, reduction is entirely negotiable – it could there will be no reduction or diminution of be allocated entirely to the Participant’s her benefit upon the death of the share, entirely to the Alternate Payee’s Participant. For this reason the Separate share, or in any other manner that the Interest Approach will be the preferred parties may agree upon. method in many cases. However this is not without a price: if the Alternate Payee is (Note also that with this method there is younger than the Participant, then the plan also a potential “survivor” benefit for the will make an actuarial reduction to the Participant. If the Alternate Payee should Alternate Payee’s benefit to reflect her predecease the Participant, then normally longer life expectancy. (Note that no the Alternate Payee’s share would revert to adjustment is permitted for the fact that the the Participant upon the Alternate Payee’s Alternate Payee is not the same sex as the demise.) Participant; the only permissible adjustment is for the difference in the ages b. Separate Interest Approach (Dividing of the parties.) The Participant’s remaining Method) In the Separate Interest Approach benefit is not affected; the adjustment (or Dividing Method), a totally separate applies purely to the Alternate Payee’s benefit is created for the Alternate Payee, benefit. based on the Alternate Payee’s lifetime. Typically this would be in the form of a With the Separate Inerest approach, there is single life annuity payable for the life of no potential survivor benefit for the the Alternate Payee. Here the Alternate Participant. Because the Alternate Payee’s Payee’s benefit is payable as long as the benefit is payable for her lifetime, it will Alternate Payee is alive, independent of the cease upon her death, even if the

Family Mediation Quarterly

Participant is then living.

benefit pension plans allow the creation of the Alternate Payee’s separate annuity benefit only at the time of commencement of payment of the Alternate Payee’s benefit; that is, most plans do not permit the creation of a separate deferred annuity for the Alternate Payee prior to commencement of benefit payment. In these plans the QDRO should explicitly provide pre-retirement survivor benefit protection for the Alternate Payee.

3. Pre-retirement Survivor Benefits The preceding discussion of the two alternative methods is applicable at the time the parties commence receiving their benefits (generally referred to as the post-retirement period, although please be aware that under the Separate Interest Approach, the Alternate Payee may commence receiving her benefit prior to the Participant’s retirement.) The Separate Interest Approach may or may not be You should endeavor to prepare available during the preyour client’s position on retirement period (that is, before survivor benefits ahead of time, benefit payments commence to and the more detail, the better. either party). Its availability will depend on the particular plan. a. Separate Interest Approach Preretirement Some plans permit the Alternate Payee’s separate annuity to be established immediately at the time the QDRO goes into effect, even though the Alternate Payee’s benefit may not commence to be paid for a number of years in the future. These plans create a separate deferred annuity on the life of the Alternate Payee. If the plan does permit the creation of such a separate deferred annuity on the life of the Alternate Payee, then this means that the Alternate Payee’s benefit is not affected by the death of the Participant even if such death occurs prior to retirement. Thus there is no need to provide for a separate survivor benefit in the cases where this is permitted. Unfortunately many plans do not permit this. b. Pre-retirement Spousal Survivor Annuity Benefit Most private defined

In this circumstance, the QDRO can assign a portion of the plan’s Qualified Preretirement Survivor Annuity (QPSA) benefit to protect the Alternate Payee in the event that the Participant dies preretirement. The QPSA is a pre-retirement surviving spouse benefit which is required by ERISA for defined benefit pension plans. Under normal circumstances (i.e., when there is no divorce), it provides for a survivor benefit to be paid to the surviving spouse of the Plan Participant for the remainder of her lifetime; the amount of this benefit is equal to 50% of the benefit that the Plan Participant would have received if he had retired the day before he died. Under a QDRO any portion of the available QPSA benefit may be assigned to the Alternate Payee if the Alternate Payee is the former spouse of the Participant. The portion to be assigned to the Alternate Payee is negotiable. Please note, however,

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that if the QDRO calls for assigning 50% protect your client (and possibly avoid a of the Participant’s benefit to the Alternate malpractice suit later), is to insist upon Payee while both parties are alive, and also stating the terms of the survivor benefits in calls for 50% of the QPSA to be assigned to the Separation Agreement. Often you may the Alternate Payee, then upon the death of find yourself hastily scratching out an the Participant prior to retirement, the agreement in a conference room while Alternate Payee would receive only 25% waiting to go back into the courtroom, so (not 50%) of the Participant’s Often, judges will not allow a total benefit, because 50% of 50% is 25%. If the parties domestic relations order to provide intend for the Alternate survivor benefits when the Payee to receive 50% of the Participant’s total benefit Separation Agreement said nothing upon his death prior to about them in the first place. retirement, then it would be necessary to assign 100% of the QPSA to you should endeavor to prepare your the Alternate Payee so that she could client’s position on survivor benefits ahead of time, and the more detail, the better. receive 50% of 100%. This is true for mediators as well, so that In most circumstances where the both parties fully understand how they are Participant dies prior to retirement, the dividing the pension, and what happens Alternate Payee will receive her benefit should one party predecease the other. solely under the QPSA and typically it will Often, judges will not allow a domestic not be paid in addition to her regular, relations order to provide survivor benefits assigned benefit.2 Typically, the cost of when the Separation Agreement said providing a QPSA is covered under the nothing about them in the first place, Plan. But should the Plan require the particularly post-divorce when the Participant to pay for this benefit, then the Participant’s attorney argues that such QDRO should contain language addressing benefits were never intended. the Participant’s responsibility to pay for this benefit (particularly in cases where the Footnotes Participant may separate from service 1. For ease of reference, the “Participant” before retirement). Should the Alternate shall be referred to herein with male Payee collect her benefit under the portion pronouns, and the Alternate Payee shall be of the QPSA which is assigned to her, the referred to with female pronouns. Participant’s current spouse at the time of his death, if any, may receive the portion of 2. On occasion, the Alternate Payee will the QPSA not assigned to the Alternate receive a QPSA in addition to her regular Payee. benefit, so it is always best to check on the Plan’s policy with the Plan Administrator C. Parting Advice with Regard to Survivor before drafting a Separation Agreement or Benefits One of the best ways you can QDRO. Family Mediation Quarterly

Lisa M. Ehrmann is an attorney practicing in Sudbury. Her practice focuses on drafting Domestic Relations Orders. She can be contacted at (978) 443-6006, or by email at <qdrolisa@aol.com>.

Franklin E. Peters, F.S.A., is a consulting actuary who assists family lawyers and mediators with matters relating retirement benefits. He is a Fellow of the Society of Actuaries, a member of the American Academy of Actuaries, and an Enrolled Actuary under the Employee Retirement Income Security Act of 1974 (ERISA). He can be contacted at (781) 891-7140 or by email at <frankpeters@att.net>.

“What they do in heaven we are ignorant of; what they do not we are told expressly, that they neither marry, nor are given in marriage.” Jonathan Swift

Fall 2003 • Vol. 2 No. 4

MCFM News NEXT MEMBERS MEETING A FINANCIAL PLANNING FORUM Meet and learn from some of the area’s most knowledgeable financial planners in the divorce arena. Jim McCusker, Paulette Speight, Barbara Shapiro, and Susan Dickie will answer your questions, discuss hot topics, and point out common financial mistakes that clients should avoid during divorce. MEMBERS ARE INVITED TO BRING A GUEST DECEMBER 3RD 9:00 - 11:00 AM Follen Church 755 Massachusetts Avenue Lexington, MA 02420-3916 Phone: 781-862-3805 See www.mcfm.org for details and driving directions SAVE THE DATE!

The meetings are held at 8:15 AM at the office of Lynda Robbins, 11 Summer Street, Chelmsford. Please call Lynda at (978) 256-8178 or Karen Levitt at (978) 458-5550 for information or directions. Metro-West Area Open to all MCFM members. Monthly meetings are (usually) held at 9:30 AM at Janet Weinberger’s home- located at 206 Windsor Road, Waban. Please call (617) 965-4432 for dates and driving directions.

EXTRA COPIES The cost of additional FMQs is $5.00 each for members, and $7.50 each for nonmembers. Please mail requests for additional copies to DeLaurice Fraylick, 23 Parker Road, Needham Heights MA 02494-2001, and enclose a check made payable to MCFM. GIVE THE FMQ TO CLIENTS & COLLEAGUES

BOUND FOR PERMANENT COLLECTIONS The law libraries of Harvard Law School and The Massachusetts School of Law are binding copies of the FMQ for their permanent collections.

AS OF OCTOBER 20, 2003 PAT SHEA IS PLEASED TO ANNOUNCE THE OPENING OF HER SECOND MEDIATION OFFICE 1022 Point Road Marion, MA 02738 (508) 748-2689 <sheamdtr@ziplink.net>

MEDIATION PEER GROUP MEETINGS Merrimack Valley Area Please join us for our (almost) monthly mediator peer support group. We are a group of family law mediators who have been meeting for approximately three years. At some meetings we invite guest speakers to address a topic that helps us improve our mediation skills. Sometimes the topics relate to substantive issues, and sometimes to mediation techniques. At most meetings, we address questions from the members about problems they may be having in their own mediation cases. Our discussions are lively and informative. The criterion for membership is a desire to learn and share. We invite interested mediators to come to our next meeting.

NEXT EXECUTIVE COMMITTEE & BOARD OF DIRECTORS MEETINGS Monday, November 17, 2003 Please email any agenda items for consideration either to President Mary Johnston at <maryt.johnston@erols.com>, or to any officer, all of whom are listed in the DIRECTORATE on page 31.

Family Mediation Quarterly

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Announcements

Editorial

DIVORCE MEDIATION TRAINING A six meeting, 26 hour course designed for mediators who are interested in the practice of divorce mediation, offered by the Community Dispute Settlement Center. The training integrates substantive information with practice through interactive role playing experience. Topics include Non-Traditional Families, Agreements and Endings, and Ethical and Practice Issues. Prerequisite: Basic mediation training. Distinguished Faculty: Cynthia Bauman, Jeanne Cleary, David Hoffman, Brad Honoroff, Jane Honoroff, Michael Leshin, Maureen Monks, and Gail Packer.

Role Playing Reflections Role playing has evolved as an essential tool in teaching mediation. Its intended purpose is to provide a “hands-on” opportunity to learn while doing. Under the rationale that no student should be denied the benefits of this experience, role playing has become a mandatory part of the educational process.

strangers can never create conditions akin to the real practice of mediation. Like all professionals, mediators ultimately learn their craft by doing, not acting. Despite its intrinsic limitations, role playing can add a positive dimension to the learning process. In order to maximize its strengths however, role playing must be truly voluntary.

As reported in ACResolution, (summer 2003), the Uniform Mediation Act (UMA) was signed into law in Nebraska, on May 13, 2003. The UMA was also passed by both houses of the state legislature in Illinois.

Required role playing raises serious When an aspiring mediator asks an problems. First of all, most people are instructor what to do in a difficult situation, naturally uncomfortable on stage. There is a teacher is invited to explore a studenta characteristic dead silence that follows a posed problem. When a teacher asks a call for “volunteers.” Most students wish student if s/he would like to assume the for invisibility, hoping not to be picked. part of a resistant client, s/he offers to Since stress generally inhibits learning, demonstrate techniques to handle such compelled role plays are There is no benefit in compulsory more often recalled for the anxiety they induced than performances – either for the victimthe lessons they were volunteers or the captive audience. designed to impart. situations. When an instructor role-plays Second, acting is inherently contrived. the client, students can be asked if they Even when teachers use role playing want to experiment with different scenarios drawn from actual mediations, interventions. The key to successful role their scripted scenes simply can’t compare playing is that students must always be as with the human drama that their students free to participate as they are to decline will face. There is no amount of acting out participation. roles that prepares prospective mediators for the intensely personal struggle involved We have a wealth of constructive ways to in figuring out how best to help clients use role playing to teach mediation without forcing students into roles. Examples range resolve wrenching, real-life problems. from live role plays between instructors to Third, virtually all mediations take place in videotapes enacted by “master” mediators. private settings, with intimately related, Another creative alternative to obligatory willing participants. Compulsory “fish- role playing is the use of professional bowl” performances among relative

Family Mediation Quarterly

Fall 2003 • Vol. 2 No. 3

Enrollment: Limited to 24 Dates: From November 8th to December 6th Cost: $695, or $550 for Volunteers with other Community Mediation Centers, or $250 for CDSC Volunteers Location: 60 Gore St., East Cambridge, MA (near LechmereT) Registration Information: (617) 876-5376

MASSACHUSETTS COLLABORATIVE LAW COUNCIL, INC. The MCLC offers legal representation to people in conflicts who share a commitment to resolving disputes without litigation. To find out more, or to locate a collaborative lawyer near you, go on-line at <www.massclc.org>

UNIFORM MEDIATION ACT UPDATE

Continued on next page

Join Us actors, as offered by the Maine Association of Dispute Resolution Professionals at their 2003 fall conference. This option will be the centerpiece of a half-day “on-your-feet workshop” for mediators, led by an improv training and performance troupe sponsored by the Boston Law Collaborative in December, 2003. Mandatory role plays are antithetical to the essence of mediation, a voluntary process defined by the power of the parties to choose – or refuse – to participate. There is

no benefit in compulsory performances – either for the victim-volunteers or the captive audience. Let’s renounce coercion in teaching mediation, and replace it with methods that comport with the basic principles of the process itself.

The opinions expressed in this editorial are those of Les Wallerstein. He can be contacted at <wallerstein@socialaw.com>, or (781) 862-1099.

ETHICAL QUANDARIES Ethical questions are part of every family mediators daily work. Since ethics are inherently subjective, each of us navigates these slippery slopes with an internal compass. When they exist at all, right and wrong answers lie only at ethical extremes. Most of the time we function in the great, gray area in-between, where there are many points of view and no correct answers. In the midst of so many unknowns, most mediators shy away from engaging in a public discussion of their personal, decision-making processes. Unfortunately, this leaves all of us unaware of how each of us privately deals with these dilemmas. The next FMQ will debut a new column designed to address this issue. The hallmark of "Ethical Quandaries" will be strict anonymity. Ethical questions will be emailed to MCFM members. All possible identifying data will be removed before emailing, and all replies will also be redacted. For MCFM members seeking a level of confidentiality that cannot be achieved by email, replies may be snail mailed to me, omitting absolutely all identifying data. The first two ethical questions launching this column were emailed to MCFM members. They will be re-emailed before the next FMQ deadline. Replies to either or both are welcome, as are proposed questions of common concern for future columns. Please join our conversation by joining MCFM. Email the editor: wallerstein@socialaw.com Family Mediation Quarterly

MCFM membership is open to all practitioners and friends of family mediation. MCFM invites guest speakers to present topics of interest at four, free, member education meetings annually. Educational meetings often satisfy certification requirements. Members are encouraged to bring guests at no cost. MCFM members also receive the Family Mediation Quarterly and are welcome to participate on any MCFM Committee. All members are listed on-line at MCFM’s web site, and all listings may be “linked” to a member’s email and web site. Annual membership dues are $90. Please direct all membership inquiries to Dee Fraylick at <mcfm23@aol.com>. REFFERAL DIRECTORY: Every MCFM member is eligible to be listed in the MCFM Referral Directory. Each listing in the Referral Directory allows a member to share detailed information explaining her/his mediation practice and philosophy with prospective clients. The Referral Directory is printed and mailed to all Massachusetts judges, and to each listed member. The referral directory is also available on-line at the MCFM web site. MCFM was the first organization to issue Practice Standards for mediators in Massachusetts. To be listed in the MCFM Referral Directory each member must agree to uphold the MCFM Standards of Practice. Copies of the MCFM Standards of Practice are available on-line at the MCFM web site. The annual Referral Directory fee is $60. Please direct all referral directory inquiries to Jerry Weinstein at (617) 965-2315. CERTIFICATION: MCFM was the first organization to certify family mediators in Massachusetts. Certification is reserved for mediators with significant mediation experience, advanced training and education. Extensive mediation experience may be substituted for an advanced academic degree. A copy of the MCFM certification requirements is available on-line at the MCFM web site. Every MCFM certified mediator is designated as such in both the electronic and the printed Referral Directory. Only certified mediators are eligible to provide mediation services to the Massachusetts Probate & Family Court through MCFM. Certification must be renewed every two years. Certification applications cost $100, and re-certification applications cost $50. Certification and re-certification applications are available on request from Lynn Cooper at <lynnkcooper@aol.com>. MCFM’s web site: www.mcfm.org Fall 2003 • Vol. 2 No. 4

Directorate

Editorâ&#x20AC;&#x2122;s Notice

MASSACHUSETTS COUNCIL ON FAMILY MEDIATION, INC.

MCFM

23 Parker Road, Needham Heights, MA 02494-2001 Local Telephone & Fax: (781) 449-4430 email: mcfm23@rcn.com web site: www.mcfm.org

Family Mediation Quarterly

TOLL FREE: 1-877-777-4430

Editor: Les Wallerstein 1620 Massachusetts Avenue Lexington, MA 02420-3802 Telephone: (781) 862-1099 Fax: (781) 861-8797

email: wallerstein@socialaw.com President

Vice-President

Mary T. Johnston, 47 Church Street, Wellesley, MA 02482-6326, (781) 431-8552, email: maryt.johnston@erols.com Fern L. Frolin, Grindle, Robinson, Goodhue & Frolin, 40 Grove Street, Wellesley, MA 02482, (781) 235-3300, email: ffrolin@grcattys.com Kathleen A. Townsend, Divorce Mediation Group, Inc., 1441 Main Street, Springfield, MA 01103, (413) 733-4444, email: kathleen@divmedgroup.com

Secretary

Laurie S. Udell, 399 Chestnut Street, Needham, MA 02492-2426, (781) 449-3355, email: lsudellesq@aol.com

Treasurer

Frank W. Benson, COMMON GROUND, 20 Park Plaza, Room 530, Boston, MA 02116, (617) 482-8660, email: FDBenson@ix.netcom.com

DIRECTORS

Lynn K. Cooper, Michael L. Leshin, Karen J. Levitt, Harry E. Manasewich, David River, Lynda J. Robbins, Barry L. Shelton, Debra L. Smith, Marion Lee Wasserman, Les Wallerstein, & Mark I. Zarrow

DIRECTORS EMERITUS

John A. Fiske, Janet B. Weinberger, Jerome Weinstein & Barbara N. White

ADMINISTRATOR

DeLaurice Fraylick, 23 Parker Road, Needham Heights, MA 02494-2001, (781) 449-4430, email: mcfm23@rcn.com

Family Mediation Quarterly

The FMQ is dedicated to family mediators working with traditional and non-traditional families. All family mediators share common interests and concerns. The FMQ will provide a forum to explore that common ground. The FMQ intends to be a journal of practical use to family mediators. As mediation is designed to resolve conflicts, the FMQ will not shy away from controversy. The FMQ welcomes the broadest spectrum of diverse opinions that effect the practice of family mediation. The contents of the FMQ are published at the discretion of the editor, in consultation with the MCFM Board of Directors. The FMQ does not necessarily express the views of the MCFM unless specifically stated. The FMQ is mailed to all MCFM members. Copies are provided to all Probate & Family Court Judges, all local Dispute Resolution Coordinators, all Family Service Officers and all law school libraries in Massachusetts. An archive of previous editions of the FMQ are now available on the MCFM web site <www.mcfm.org>. MCFM members may submit notices of mediation-related events for free publication. Complimentary publication of notices from mediation-related organizations is available on a reciprocal basis. Commercial advertising is also available. Please submit all contributions for the FMQ to the editor, either by email or computer disk. Submissions may be edited for clarity and length, and must scrupulously safeguard client confidentiality. The following deadlines for all submissions will be observed: Summer- July 15th Winter- January 15th

Fall-October 15th Spring- April 15th

All MCFM members and friends of family mediation are encouraged to contribute to the FMQ. Every mediator has stories to tell and skills to teach. Please share yours.

Fall 2003 â&#x20AC;˘ Vol. 2 No. 4