MCFM
FAMILY MEDIATION QUARTERLY Vol. 4 No. 4
Fall 2005
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: Laurie S. Udell Real estate attorneys may be familiar with the issue, but as a divorce practitioner and mediator, I was surprised to hear about the controversy arising out of deed preparation for former or about-tobe former spouses. I know not all mediators prepare deeds for their clients when there is a buyout of the real estate involved, but I routinely do just that, and according to a long-ago MCFM members’ survey questioning what practices were performed, there were a significant number of others who do likewise. Although there is generally an amount of money that is being transferred for one spouse’s interest in the real estate, I had learned long ago to write as consideration paid the seemingly innocuous “for One Dollar ($1.00) and other good and valuable consideration.” I became aware of the controversy when a real estate attorney told me I would have to list the consideration that the husband (who was ending up with the real estate) was paying to the wife to remove her name from the deed. Nothing is quite so simple, however. In fact, there are often other tradeoffs involved, including assumption of marital debt and, in many cases, a transfer of retirement assets or even personal property. The real estate attorney I spoke with felt obligated to list the dollars to be given to the wife and felt that it was unethical, or perhaps even illegal, to do otherwise. Why? Because the Commonwealth of Massachusetts charges an excise stamp tax based on the consideration listed on a deed, which (other than in Barnstable County) is based on a rate of $2.28 per $4,500. So, if the consideration recited is $100,000, the Commonwealth would be owed $456 Is recitation of the formulaic One Dollar et cetera a proper way to save a divorcing couple money, or should the stamp tax due the Commonwealth simply be taken into account in how much money would trade hands? I would very much like to hear from others who have thought about this issue.
Family Mediation Quarterly
Contents 1
Mediating the Origins of Family Conflict: Part II of II By Kenneth Cloke
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Family Team Decision Making By Hugh F. Ferguson & Jonathan E. Fields
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The Uniform Mediation Act: Upgrading Confidentiality in Mediation By David A. Hoffman and Vicki L. Shemin
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The Urge to Merge vs. The Drive to Survive By Howard I. Goldstein
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The First Annual John Adams Fiske Award Presented By Jerome H. Weinstein
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MCFM's 4th Annual Family Mediation Institute A Photo Array By Lynn K. Cooper
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Copartnership Agreements ≠ Marriage in Massachusetts William F. Peck v. Sarah G. Peck, 155 Mass. 479 (1892)
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A Modest Proposal By Steven Nisenbaum 27 28 29 31
What’s News? Editorial MCFM News Email
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Announcements Join Us Directorate Editor’s Notice
MCFM © 2005 All Rights Reserved Fall 2005 • Vol. 4 No. 4
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MEDIATING THE ORIGINS OF FAMILY CONFLICT Part II of II By Kenneth Cloke [Some passages are drawn from Kenneth Cloke and Joan Goldsmith, The Art of Waking People Up, Jossey Bass/Wiley, 2003] Editor’s Note: Kenneth Cloke’s two-part article “Mediating the Origins of Family Conflict” continues the exploration of how our earliest experiences of conflict are learned in our families of origin. In Part I (Family Mediation Quarterly, Vol. 4, No. 3, Summer, 2005), the author described families as generators of conflict, some options for responding to family dysfunctions, and ways to mediate in the context of ancient family patterns. He suggests that exploring these issues will broaden a mediator’s appreciation of what our clients bring to the process. Separation as a Systemic Crisis Because we all emerge from our families of origin half-formed, we are prone to enter relationships with those who represent — sometimes in a milder and more manageable form — the parent with whom we have not yet resolved our conflicts. At the moment we are ready to transcend and outgrow these familial ties, part of the energy and self-delusion that was holding our relationship together begins to dissipate. As the dysfunctional reasons for staying together dissolve, an intense need to grow and change increasingly requires us to release ourselves from the old relationship, in order to become more balanced, mature, and whole than we were before. For this reason, separating parties
sometimes state that they “would have died” if they had stayed in the old relationship — and on an emotional and spiritual level, their assessment is correct. In these cases, physical separation is only the final culmination of a deeper separation that was already present in miniature from the beginning, a separation that was tolerated in small ways for years by both parties and that, until the end, was denied, suppressed, ignored, or seen as a temporary aberration. When people realize that the relationship they have been holding onto began as an effort to compensate for unresolved childhood conflict or helped them overcome a dysfunctional pattern from their family of origin and has no other reason for existence, accommodation becomes impossible, denial and suppression no longer work, aberration and dysfunction are resisted as abnormal, and the person with the greatest need, clarity and courage subconsciously decides to disengage, or the other person decides to do something that will end it. If neither party has the need, clarity or courage to initiate a separation, the relationship deteriorates into a succession of arguments from which it takes longer to apologize, forgive, recover, and seek forgiveness and reconciliation. The parties begin to drift apart and grow in different directions. They can no longer suppress their need for growth or tolerate their systemic dysfunctions, and find the people
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they become when they are with each other increasingly intolerable.
denied, suppressed, ignored, and accommodated systemic dysfunctions carried from their families of origin into their present relationship materialize as conflicts, reflecting their separate disappointments, grief, and false
The separation or divorce that follows, while initiated by one party, is a product of their mutual inability to sustain a relationship based on the conflict patterns If neither party has the need, clarity or they brought with them courage to initiate a separation, the from their families of relationship deteriorates into a origin. It materializes at the moment one of them succession of arguments from which becomes ready to it takes longer to apologize, forgive, evolve and move on, but this rarely happens recover, and seek forgiveness and without the other person reconciliation. becoming ready also. Their separation therefore transcends fault. expectations, but also their desire to return The decision to disengage is mutual. Their to the safely dysfunctional system of final parting, regardless of blame and marital arguments that defined them and incrimination, transpires as consensually as held them together. it began. The first phase of separation is denial and Mediating the Phases of Acceptance of avoidance, because along with the separation Separation Before mediating a separation comes the loss of a consistent source of selfor divorce, it is wise to ask the parties what definition, an anticipatable future, and a they want, and if they disagree about ending belief that better, happier self-definitions and their relationship, whether they have relationships might replace it. considered marital counseling, or would like to. I frequently ask the person most intent When the parties are in denial or on separation whether there is anything the avoidance, the mediator may try to gently other person might do that could cause them encourage them to accept the fact of their to change their mind. If the answer is “yes,” separation, or recognize that they cannot they may not be ready for separation, and it unilaterally make it succeed, or that they may be possible to mediate an agreement to may even benefit by ending it. Or the visit a marital counselor, or transition into mediator may ask whether there were not “marital” or “relational” mediation, to parts of the relationship that did not work determine whether the conflicts they are for them as well, or what they need in order experiencing can be resolved without a need to let go and move on, or whether they are for separation. holding on out of fear of change rather than genuine love for the other person. Or the Once they have decided to separate, all the Continued on next page Fall 2005 • Vol. 4 No. 4
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mediator may simply ask how denial and avoidance are likely to affect their relationship in the future. Following denial and avoidance comes anger, which is sometimes directed against the mediator who has now become an agent of dissolution of the most important relationship in their lives. The mediator should be willing to accept full responsibility for whatever did not work in the session for either party and use it as an opportunity to model a more constructive attitude toward anger and loss.
By probing these levels of feeling, mediators can deepen the parties’ conversations and help them transition to different phases of separation. They can ask, for example, when someone expresses persistent anger, “Are you afraid of what will happen to you after you separate? Or “Is this very painful for you?” Or “It sounds like you still care deeply for each other. Is that right?”
The parties’ subsequent surrender of depression and grief and slow movement toward indifference marks the real beginning of acceptance. Their indifference emerges as At the same time, the mediator should assist they increasingly understand that anger is the parties in experiencing the full range of simply a negative form of intimacy, that depression and grief will The mediator should be willing to not preserve their accept full responsibility for whatever relationship, and that no longer need to did not work in the session for either they hold on to a relationship party and use it as an opportunity to that is unsatisfying.
model a more constructive attitude toward anger and loss. emotions appropriate to their separation, and finding ways to transform suffering into learning and growth. Indeed, the expression of anger may paradoxically facilitate transition to the next phase of processing their separation, and improve their ability to collaboratively negotiate agreements. The next phase of separation consists of processing depression and grief, which often form the underlying basis for anger. It is quite common in conflict for parties to discover that beneath their anger lies fear, beneath fear lies pain, and beneath pain lies caring, and to realize that these are four entirely different kinds of conversation.
The object of each phase is to assist them in reaching an emotional state in which they can negotiate for themselves without having their positions determined by denial, anger, fear, jealousy, grief, or other intense emotions. Having done that, they can then find a way of expressing their caring for each other by being generous to the other party and ending the relationship with an expression of positive regard. This suggests there is also a phase of celebration, in which the parties affirm their separation as an act of liberation and release from a relationship that, regardless of caring or blame, could not have succeeded without constricting their lives.
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Mediators can then assist them in designing rituals of release, completion and closure that express their fondness for what they had, sadness over what they lost, and best wishes for their future, and celebrate their mutual transition into new lives.
separation often show up in the small, subtle ways parties participate in the mediation process. Small details often reveal deeper truths. Here are some examples:
Ways of Entering Mediation: The Releasing the full-range of pent-up complex, even Byzantine negotiations grieving emotions is essential for healing to which parties engage in to enter the occur. It is a purge, a confession of sins mediation process often symbolize their preceding redemption, a fast before role in the relationship and perception of atonement. Mediation should allow each how they are valued by the other person. person to express the emotions appropriate Frequently, their attitudes toward each to each phase Family patterns, systems, and incrementally and evolve without unevenness in experiencing the phases compromising the process or of acceptance of separation often show detracting from the up in the small, subtle ways parties result. It should participate in the mediation process. also invite each person to shift instantaneously to a more other are self-descriptive, revealing profound realization regarding their wounded self-esteem, frustrated desires, and unrealistic expectations. They may separation. say: “She’ll never agree to anything I say.” The phases leading to acceptance are “He won’t listen.” “She’s totally neither linear nor automatic. People may irresponsible about money.” “If he agrees move back and forth between denial, to pay for the whole thing, then I’ll come.” avoidance, anger, shame, fear, guilt, depression, grief, indifference and Cancellations: As one phase gives way to celebration in the space of a single another, the parties often cancel sentence. These emotions nonetheless appointments, sometimes as a ritual way of express four fundamental relational truths: rejecting the future and clinging to the past, that life continues even if relationships do sometimes because they need to process their not; that no one is alone in their suffering; emotions, and sometimes in order to prepare that there is a logic to grief and an end to to move on to the next phase of the process. suffering; and that new relationships are Promptness: A frequent indicator of born as old ones die. denial and phase transition in separation HOW LOSS AFFECTS MEDIATION and divorce is tardiness. Rage is more Family patterns, systems, and unevenness often on time. in experiencing the phases of acceptance of Continued on next page Fall 2005 • Vol. 4 No. 4
5 Blaming: Commonly, there is a need to represent the other as an incarnation of evil. The abandonment and betrayal of trust experienced in separation seem to require public humiliation, in payment for the humiliating act of separation. The mediator may empathize, as a friend might, with each party’s emotional experience regarding the separation without being judgmental. A party who needs to blame may have a strong desire for loyalty, or negative self-judgments, or denial, or perceive the mediator’s empathy with the other party as rejection.
encouraged to do so or they will feel taken advantage of later and betrayed by the mediator. This is a kind of “victim” behavior that may hope to return to the marriage or avoid responsibility for outcomes. Wherever a firm line is drawn, wherever expected behaviors no longer take place, the marriage system breaks apart and the parties become free to create separate lives.
Interruptions: Linking interruptions to the ideas being expressed can reveal underlying emotional concerns that may need to be surfaced, acknowledged or Procedures: If one party speaks first the resolved before moving on. Asking an other may have difficulty “listening to all interrupter to hold their comments can the lies.” Confidential caucuses with one establish a boundary and be gratefully by someone who has A frequent indicator of denial and accepted difficulty recognizing their phase transition in separation boundaries or those of others, and divorce is tardiness. Rage while allowing the interruption to occur can reveal underlying is more often on time. dynamics that may need to be may become a focus of suspicion by the surfaced or broken. other. Any procedure can become a focus Rituals: There are rich ceremonies for for their refusal to participate. marriage, and none (unless we count Language: There may be an increased litigation) for divorce. Mediation can sensitivity to nuance in the use of language, provide opportunities for the parties to placing heavy meanings on otherwise ritualize and mark to their transition to neutral terms. These are gateways to autonomy, mourn what has been lost, and deeper, more authentic emotional and celebrate what is genuinely new. heartfelt communications, as when the mediator reframes an exaggerated Creating Friendships: Once the phases of acceptance of separation have been declaration as a request. successfully completed, mediation permits Drawing Lines: Wherever a party puts the parties to reach forgiveness, or their foot down and says “no,” reveals to consciously negotiate the elements of a the mediator what is really at stake. Some future friendship. At the conclusion of the people cannot say “no” and need to be mediation, the mediator may ask what they
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6 need to say to each other before moving on, or what kind of relationship they would like to have going forward, and help them engage in these conversations.
designing a better future. Each is an excuse for not accepting responsibility for making their relationship work.
The first genuine act of relationship consists Many people in dysfunctional families lug of being aware of what each person brings around stacks of ancient, fetid, rotting, useless to it. The second consists of committing to ledgers citing all the wrongs that have been transforming their behaviors in order to done to them and cataloging all the reasons make the relationship more successful. The they were not at fault. Doing so predisposes third consists of transcending their old them to unresolved conflict, and makes their Many people in dysfunctional families relational separations lug around stacks of ancient, fetid, more arduous and painful.
rotting, useless ledgers citing all the wrongs that have been done to them and cataloging all the reasons they were not at fault.
Allowing painful experiences from the parties’ families of origin to dominate and preoccupy their interactions in the present will deplete their energy and subvert whatever is positive in their relationship. These patterns will continue until the parties self-critically examine their family experiences and release or transcend them. People in conflict are often afraid to let go of the past because they don’t know how to live in the present, or have accepted an image of themselves as inadequate or unlovable, or because doing so means they have no one to blame or focus anger on other than themselves, or because they are frightened of being alone and dying. While the thought of jettisoning family patterns is frightening, mediation can help the parties realize that these pointless histories weigh them down, keep them stuck, prevent them from being fully awake in the present, and cheat them out of
conflict patterns by being open, honest and authentic in examining them, and inviting others to do the same. Ultimately, the reason for transcending our family experiences is to give birth to ourselves by developing a unique sense of identity, balance, and perspective that make genuine partnership possible. As we do so, we magnify our capacity to achieve the results we want, graduate from our families of origin, and become who we want to be. In other words, we finally grow up. 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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FAMILY TEAM DECISION MAKING By Hugh F. Ferguson and Jonathan E. Fields Family Team Decision Making is a recent and innovative method for families to retain control over the future direction of their family during or following a catastrophic event in the family. This process was started in New Zealand when the Maori’s discovered that children from their tribe were being placed out of their home and their culture as a consequence of parental incapacity. Since its beginnings in New Zealand, it has shown great promise in the social services agencies of many states in America. The Maori’s wisely understood that the family itself is the best “expert” of its functioning, ability to adapt to change and planner for the future of the family. This did not mean that the child would necessarily remain with either or both of his birth parents. It did mean that the extended family was better than a state agency at determining the best placement for a child whose parents were presently unfit. In Massachusetts, Family Team Decision Making, also known as Family Group Conferencing, is being used by the Department of Social Services to assist families in planning for safe and appropriate placement of children removed from parental care. The use of this process allows reduction in out of family foster placements and keeps children with relatives. The Family Team Decision Meeting provides an opportunity for the family to
take control of the process and to insure a better outcome. A typical case might include a mother whose child has been removed as a consequence of her substance abuse and the family members want to insure the child stays with family rather than going into foster care. Gathering the Family Before a Family Team Decision Meeting is attempted, a coordinator will speak with a representative of the family, typically a parent, to determine the extended family members and outside resource people who should be invited. If the child or children are school-aged, teachers, counselors, mentors and coaches are frequently invited. If an outside resource or extended family member is not available to attend they are free to forward their perspective to the facilitator to be presented at the meeting. Depending on the age and maturity of the child or children, they may be invited for all or part of the meeting. The coordinator will make contact with the identified family members and other resource people and begin to set up the meeting. Preparation is often the most difficult and time-consuming aspects of the entire conference. Important issues to be addressed in the planning process include coordinating the time and location of the meeting, transportation to and from, arrangements for feeding the participants (this meeting is not short) and other logistical needs such as poster paper, markers and masking tape.
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Introductions On the day of the meeting, the coordinator or one of the trained facilitators will open the meeting with introductions. This may be the first time that many of these extended family members from both sides of the family have met. This may also be the first time some family members become aware of a crisis in their family. The facilitator will then ask a family representative to explain the current situation and how the meeting came to be scheduled. The facilitator will then discuss the purpose, format and process of the meeting.
“on the table,” the facilitator will introduce the next phase of the meeting. Meal Break At this time some facilitators offer the “meal break.” We know anecdotally that families do some of their best family work at meals. The meal is a staple in most cultures and brings families together more than almost anything else. After the meal break the facilitator gives the family information on how to devise a plan for the child or children. The
Family Team Decision Making is a recent and innovative method for families to retain control over the future direction of their family during or following a catastrophic event in the family.
Family members and invited guests will then be offered the opportunity to provide their perspective on the situation and give some of their thoughts. This is a time that is often very difficult and emotional. Aside from the parents whose parenting is in question, family members who may have been trying to help for many years are presented with the opportunity to vent their frustration. Facilitators need to be able to tightly control this phase of the meeting to insure that everyone has the opportunity to be heard but balance the opportunity to be heard with maintaining the ability to continue the meeting.
All Options Open After introductions, overview and the perspectives of family members and others, the facilitator will assist participants in formulating possible solutions. Solutions can run the gamut from impossible to very simplistic. No possible solution should be discounted at this time. When all possible solutions are
facilitator then allows the family to discuss their possible solutions on their own and gives a time for the entire group to reconvene. Adopting a Plan When the facilitator returns to the group, the family generally has a plan in place. The facilitator will then help the family to troubleshoot each part of the plan to insure it meets the needs of the child and is achievable by the family. The family will then settle on a comprehensive plan for the care of the child. A decision will then be made on when to implement their plan. When Family Group Conferences are conducted by the state child welfare agency a social worker is assigned to the case and Continued on next page
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The Family Team Decision Meeting offers an excellent model for assisting families to arrive at solutions when their family is affected by substance abuse, mental illness or problems of old age. will supervise implementation of the plan. In a private case the family will determine who and how to supervise the planâ&#x20AC;&#x2122;s implementation.
the same time their parents need as much or more care than the children.
The Family Team Decision Meeting offers an excellent model for assisting families to arrive at solutions when their family is affected by substance abuse, mental illness or problems of old age.
The Family Team Decision Meeting is an appropriate venue for adult children trying to determine how to best care for an aging parent when the adult children are in disagreement. It provides a method for deciding what is best for the family now that mom or dad is no longer able to live on their own. Experience is showing that as the nation ages, more and more adult children are having to raise their children at
Hugh F. Ferguson, Ph.D., Esq., is of counsel to Fields and Dennis, LLP and a principal in the Center for Problem Resolution, Inc. Jonathan E. Fields, Esq., is a partner at Fields and Dennis, LLP and a principal for the Center for Problem Resolution, Inc.
"Marriage is a friendship recognized by the police." Ambrose Bierce
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THE UNIFORM MEDIATION ACT: Upgrading Confidentiality in Mediation By David A. Hoffman and Vicki L. Shemin Twenty years ago, Massachusetts enacted a mediation confidentiality statute, G.L. c. 233, Sect. 23C — one of the first such laws in the United States. This year the Massachusetts Legislature will consider a new law, the Uniform Mediation Act, or UMA, which addresses the same topic. Is it time for a change? In our view, the answer to that question is an emphatic “yes.” During the past two decades, a complex patchwork quilt of state laws has developed in the field of mediation. Legislatures in the U.S. have enacted nearly 2,500 statutes concerning mediation. A uniform statute will enhance the usefulness of mediation, which is, to an increasing extent, practiced in multi-state settings. To date, the UMA has been enacted in six states, introduced in six other state legislatures (pending in Massachusetts as HB-19 in 2004-2005), and endorsed by the American Bar Association. Time for a change Although Section 23C has served lawyers, mediators and the public well, it leaves unanswered a number of important questions about the confidentiality of the process, such as:
* Who can assert or waive the privilege against disclosure? (For example, what if both parties want the mediator to testify, but she does not wish to testify? Can the mediator alone assert the privilege? Section 1 23C does not answer this question.) * What exceptions are there to the privilege? (If a mediator learns of child abuse or neglect but is not a mandated reporter, is she permitted to contact DSS? What if a mediator who is an attorney learns of ethical misconduct by one of the lawyers. Does the duty to report such violations trump Section 23C?) The UMA does a better job of answering these basic questions than our present statute. This article outlines the main contours of the UMA and seeks to assess its value for Massachusetts. Why confidentiality? Confidentiality is, for many users of mediation, the sine qua non of the process. The success of mediation often depends on the parties’ candor about their interests and their frank assessment of the strengths and weaknesses of their case.
Confidentiality is, for many
* What communications are covered by confidentiality protection? (Section 23C users of mediation, the sine qua non of the process. covers communications “made in the presence of [the] mediator.” But what about pre-mediation memos or e-mail correspondence with the mediator?) Continued on next page Fall 2005 • Vol. 4 No. 4
11 Confidentiality promotes trust, which in turns allows the mediator to explore with the parties the full scope of settlement possibilities. Without statutory protection, the confidentiality of mediation can be assured only by contract, and such contracts do not bind third parties.
agency, except for labor-management mediations. (This same exception appears in Section 23C.)
As essential as confidentiality is to the mediation process, it is fundamentally at odds with an adjudicatory system that, by definition, favors consideration of all possible evidence.
For example, any of the parties can insist on confidentiality, but if all of the parties waive the privilege, it is waived only as to their own statements, not those of the mediator or non-parties.
The challenge, then, is how to balance the value of confidentiality in the mediation process with other concerns — such as preventing harm to vulnerable third-parties and rectifying situations in which a party has engaged in misrepresentation in the mediation process. The UMA seeks to achieve such a balance.
Exceptions to Confidentiality The UMA also specifies certain exceptions from the privilege, such as (a) a written settlement agreement; (b) information that must be disclosed because of state open records or public meetings laws; (c) a threat of harm to an individual; (d) the planned commission of a crime; (e) evidence of abuse or neglect; or (f) evidence of professional misconduct by the mediator, one of the parties, or an attorney occurring during a mediation.
The UMA’s biggest contribution, and what can be described as its focus, is to codify confidentiality in mediation. The UMA As essential as confidentiality is to the offers a tiered system of privilege that mediation process, it is fundamentally appropriately treats the parties, the at odds with an adjudicatory system mediator and that, by definition, favors consideration nonparty participants differently. of all possible evidence.
The UMA: A Thumbnail Sketch The UMA defines mediation as “a process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute.” The statute covers all mediations, regardless of whether the parties have signed an agreement to mediate or have been referred to mediation by a court or
There is also what might be described as a catch-all provision that permits a court to consider, in camera, evidence that might be needed in a criminal case or in an action involving enforcement of a mediated settlement agreement; in such cases, the court must find that “the evidence is not otherwise available [and] there is a need for
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12 the evidence that substantially outweighs the interest in protecting confidentiality.”
bar out-of-court statements, they may do so contractually in an agreement to mediate.
The UMA usefully clarifies the role of the mediator with regard to confidentiality. If asked by a court or agency about what has transpired in a mediation, a mediator may disclose only the fact that a mediation occurred, who attended and whether there was a settlement.
The most glaring omission in Section 23C is its lack of explicit exceptions to its mediation confidentiality provisions. This is not surprising, given the fact that Section 23C was adopted 20 years ago, when there was far less day-to-day experience with mediation.
In addition, mediators cannot be compelled to testify about issues relating to the enforcement of the mediated agreement or the alleged professional misconduct of the lawyers or parties in the mediation.
However, as many mediators intuitively understand, the interest of justice demands that certain mediation communications not be protected by the veil of confidentiality.
UMA as a Boon to Massachusetts The UMA was the product of several years of drafting by the ABA and the National Conference of Commissioners on Uniform States Laws.
Evidence of abuse of a minor, a risk of physical harm to self or others, the planned commission of a crime, or mediator malpractice are examples of areas where disclosure is warranted.
The UMA usefully clarifies the
Hearings were conducted throughout the United States and role of the mediator with regard revisions were made based on to confidentiality. input from commercial mediators, community mediators, scholars and Some mediators in Massachusetts, practicing lawyers who use mediation. The particularly those who are mental health final product is an improvement on existing professionals, operate under the law in Massachusetts and most other states. assumption that they are obligated by G.L. c. 119, Sect. 51A to report instances of Section 23C is vague in several respects. child abuse or neglect. For example, it states that mediation communications are “confidential and shall However, Section 23C appears to directly not be disclosed” but does not explicitly conflict with this assumption, given its say whether this protection applies to out- failure to exempt any type of mediation of-court statements as well as court communication from its confidentiality testimony. protections, let alone require disclosure. The UMA resolves this question by creating a privilege — if the parties want to
The UMA directly addresses this question
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The UMA is dauntingly complex, because it seeks to address the full range of situations in which some but not all participants in the mediation may wish to disclose what occurred in the mediation. and gives mediators the right, but not the obligation, to disclose such matters. The UMA properly leaves to state legislatures, or Congress, the question of whether to require reporting of abuse or neglect and, if so, under what circumstances. Clarity about these specifics will enhance the publicâ&#x20AC;&#x2122;s confidence in mediation as a much-needed alternative to litigation in appropriate cases. In addition, the UMA better protects the public with regard to mediation ethics. Unlike Section 23C, the UMA requires mediators to disclose conflicts of interest and, upon request, their qualifications to serve as a mediator. Although there are court rules requiring such disclosures, those rules apply only to court-connected mediation programs. A far greater number of mediations occur outside the ambit of such programs. The UMA will give the force of law to basic ethical requirements that are well accepted by professional and community-based mediators. A uniform law will also increase the confidence of lawyers and their clients about the confidentiality of mediation in cases involving multiple states. For example, the parties may be located in more than one state, the law governing
their dispute may be that of Massachusetts or another state, and the underlying conduct that gave rise to the mediation may have occurred outside of Massachusetts.
UMA is Not a Panacea The UMA is not without its shortfalls. For example, it does not answer (nor could it) the question of whether federal law can override the UMAâ&#x20AC;&#x2122;s protection of confidentiality. Thus, it is up to the courts to decide whether, under the Supremacy Clause of the U.S. Constitution, the UMA can shield from disclosure information sought by federal enforcement authorities or evidence sought by individuals seeking to assert rights protected by the Constitution or federal law. In addition, the UMA is dauntingly complex, because it seeks to address the full range of situations in which some but not all participants in the mediation may wish to disclose what occurred in the mediation. Another disadvantage of the UMA is that it does not specify a minimum amount of mediation training that a mediator must have in order to serve in that capacity. Section 23C requires 30 hours of training in mediation, although it is non-specific as to what such training should include. The drafters of the UMA decided that the statute should leave to the individual states a determination of such qualification issues.
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14 Massachusetts could, therefore, adopt the UMA and add to it the 30-hour training requirement. On balance, however, these concerns do not outweigh the value of the UMA as an improvement over Section 23C. Conclusion Because the wide variety of existing laws in Massachusetts and other states regarding confidentiality in mediation leaves many questions unanswered, the time for a uniform law appears to be at hand. The UMA will significantly improve the climate for mediating in Massachusetts as it codifies critical issues and concerns related to mediation confidentiality. It will thus benefit the people and businesses that utilize mediation by giving them greater certainty about what to expect from mediators and from the laws that protect the mediation process.
Endnote 1. In 2002, Appeals Court Judge Cynthia J. Cohen ruled in favor of upholding mediator confidentiality in Leary v. Geoghan, determining that Section 23C does not permit a party to compel a mediator to testify regarding mediation communications. The court acknowledged that the statute is silent as to whether confidentiality ever may be waived, and if so, by whom. David A. Hoffman is a mediator, arbitrator and attorney at Boston Law Collaborative, and currently serves as chair of the ABA Section of Dispute Resolution. Vicki L. Shemin is of counsel at Boston Law Collaborative and currently serves on the boards of the Massachusetts Council on Family Mediation and the Massachusetts Association of Guardians Ad Litem. Š 2005 Lawyers Weekly Inc., All Rights Reserved.
"Always forgive your enemies. Nothing infuriates them so." Oscar Wilde
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THE URGE TO MERGE vs. THE DRIVE TO SURVIVE By Howard I. Goldstein Editor’s Note: This article was distributed at the September MCFM member’s meeting. The author gratefully credits Lynn Cooper for the title. Separation Agreements either “merge” or “survive” a Judgment of Divorce. When a separation agreement is merged into a Judgment of Divorce, its terms are incorporated into the judgment and are modifiable by the court, because the court always has the power, in the proper situation to revise or modify it’s own Judgment. A “merged separation agreement” has no independent legal significance. It is simply a substitute for a judgment of the court, that is entered by stipulation and has no greater or lesser power than a judgment of the court entered after trial. If a separation agreement “survives” a Judgment of Divorce, its terms are also incorporated in the Judgment of divorce, but because it does not “ merge” into the judgment, the separation agreement stands as a contract with independent legal significance. Like any contract, it can be
Probate Court, where, because it has also been incorporated in the judgment of divorce, the violation of the agreement is enforceable under the contempt power of the Court. By this definition, it would seem impossible for a court to modify a contract with independent significance, against the wishes of either party, because the essence of contract law is that it is a voluntary agreement. When Can a “survived” Agreement be modified? Our courts have held that a judgment incorporating a surviving agreement CAN be modified, but something more than a “material change of circumstances”(the standard for merged agreements) must be shown before a probate judge may refuse specific performance of the separation agreement. A probate court can modify a judgment containing a surviving agreement if there are “countervailing equities” such as where a spouse is in danger of becoming a public charge. Knox v. Remick, 371 Mass. 433 (1976); Stansel v. Stansel, 385 Mass. 510 (1982); DeCristofaro v. DeCristofaro, 24 Mass.App.Ct. 231 (1987). In Stansel, the parties were granted a 1A divorce on December 15, 1978. The marital property was divided and the husband was to pay the wife alimony for (two) 2 years. The Agreement also stated “it was intended to survive the entry of any divorce
Our courts have held that a judgment incorporating a surviving agreement CAN be modified, but something more than a “material change of circumstances” must be shown.... enforced in a civil proceeding in Superior Court, or enforcement can be had in
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16 decree and to be Even if the parties” separation binding on the parties thereafter.” Stansel v. agreement was intended to survive the Stansel, 385 Mass. judgment of divorce, a modification 510, 511 (1982). On January 31, 1980, the seeking a change in the child support wife filed a provision can be modified by the court. modification seeking In Knox v. Remick, 371 Mass 433(1976) to extend her alimony payments, and the the court in dicta, indicates that one such husband claimed that the terms of the situation might be where the party relying agreement were a bar to the modification. on the term of the contract has not, in other The probate court found a change in respects, fully complied with the circumstance and ordered the husband to agreement (at page 437) but our case law is pay the wife three (3) more years of otherwise silent on what other support, increased the support order, countervailing equities might be. provide health/dental until the wife remarried and to pay the wife’s attorney’s A “survived” agreement does not fees. The SJC reversed the modification prevent modification of child support judgment and reinstated the parties” Even if the parties” separation agreement separation agreement because there were was intended to survive the judgment of no findings made by the probate judge that divorce, a modification seeking a change in the wife would become a public charge or the child support provision can be modified any other existing countervailing equities. by the court. Ryan v. Ryan, 371 Mass. 430 Stansel v. Stansel, 385 Mass. 510, 516 (1976). In Ryan, the husband filed an (1982). action in superior court seeking specific performance of the separation agreement. See also, Broome v. Broome, 43 The superior court ruled in the wife’s favor, Mass.App.Ct. 539 (1997). Where the court modified the child support order and the held there was insufficient evidence to husband’s complaint was dismissed. The support the judge’s finding that the former SJC affirmed the lower court’s ruling. Id. wife was destitute and would become a Although the parties” separation agreement public charge if the separation agreement survived the Judgment of Divorce, “the were specifically enforced. There was power of the probate courts to modify its insufficient evidence of other support orders may not be restricted by an countervailing equities to warrant the agreement between a husband and wife judge’s order that the former husband which purports to fix for all time the continue to pay support. It is not clear from amount of the husband’s support the court’s opinion what other obligation.” Id. Furthermore, child countervailing equities there might be that support orders are different because would justify a court in refusing to enforce “[p]arents may not bargain away the rights a separation agreement that survived the divorce judgment. Continued on next page Fall 2005 • Vol. 4 No. 4
17 whether or not the agreement survives, the parties” intent controls. Moore v. Moore, 389 Mass. 21 (1983). In Moore, the issue was whether the language in the divorce decree dissolved the agreement or whether the parties” separation agreement stated that it shall survive the divorce decree controlled. Id. The Court held that as stated in the parties” separation agreement, it was their intent that their separation agreement survive as an independent contract from the divorce decree.
In order to avoid confusion... we should be very specific about which provisions of an agreement survive and which provisions merge. of their children to support from either one of them.” Knox v. Remick, 371 Mass. 433, 437 (1976); DeCristofaro v. DeCristofaro, 24 Mass.App.Ct. 231 (1987). See also MGL Ch. 208 Section 28. Property Division can not be modified: i.e. these provisions always survive Absent fraud, there is no basis for further division of property once it has been divided by agreement, pursuant to 208 section 34. see Kirtz v. Kirtz, 12 Mass. App. Ct. 141, citing, Maze v. Mihalovich, 7 Mass. App. Ct. 323, Belsky v. Belsky, 9 Mass. App. Ct. 852 and others. Additional Relevant Caselaw A probate judge does not have authority to prevent the survival of an agreement when there are no findings that “the agreement was illegal, unfair, unreasonable, entered into through fraud or coercion.” Id. The parties” intent is determined by the terms of the entire agreement. Further, it is the Commonwealth’s “established public policy” that the parties” separation agreement shall survive a divorce decree, unless their agreement expressly states otherwise. Here, in this case, based on the parties” agreement, it was their intention that it survive the divorce decree as an independent judgment. DeCristofaro v. DeCristofaro, 24 Mass.App.Ct. 231 (1987). When the separation agreement and the divorce decree are inconsistent as to
The parties” separation agreement that survives the judgment of divorce cannot later be found unfair and unreasonable, and thus, unenforceable on a Complaint for Modification for increased alimony and child support. Randall v. Randall, 17 Mass.App.Ct. 24 (1983). In Randall, the parties had signed the agreement voluntarily; had been apprised of all relevant facts, and advised by independent counsel. The record lacks any evidence of fraud, coercion or that the provisions in the agreement are contrary to public policy. As such, “the probate judge erred in refusing specific enforcement of the separation agreement with respect to interspousal support and child support” without a finding that the parties” financial circumstances presented “countervailing equities.” Id. at 32. It should be noted that a separation agreement is a contract and a party may seek specific enforcement of its terms even though a probate judge has altered a party’s contractual commitment. A probate judge
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18 may reduce an obligor’s support payments, despite the terms of the agreement, to avoid contempt proceedings; however, the probate court does not have the authority to modify the agreement, and altering the obligor’s contractual commitment as stated in the agreement. As such, even though the obligor’s support obligation has been reduced, the obligee may then seek a contract action to recover the full amount owed under the parties” agreement.) Knox v. Remick, 371 Mass. 433 (1976); Hills v. Shearer, 355 Mass. 405, 408 (1969). Freeman v. Sieve, 323 Mass. 652, 656-657 (1949). Welch v. Chapman, 296 Mass. 487, 488 (1937); see Whitney v. Whitney, 316 Mass. 367, 370 (1944). A separation agreement can survive as an independent contract as to some aspects of the agreement, and merge as to others. Gottsegen v. Gottsegen, 397 Mass. 617, 619 (1986). It is advisable, in order to avoid confusion, that when drafting agreements we should
be very specific about which provisions of an agreement survive and which provisions merge. For example, to say “the agreement merges as to child related issues, and survives as to everything else” leaves many open questions: Is a provision relating to health insurance, child related or not? Is a provision for uninsured medical expenses, life insurance, college education, child related or not? Certainly these points can be argued either way by creative counsel. As mediators, we need to make sure that our clients understand what they have agreed to for each aspect of the agreement, and the only way we can be sure of that is to make our agreements as specific as possible.
Howard I. Goldstein is a mediator who has practiced family law since 1973. He is a longstanding member and current Director of MCFM. Howie’s office is in Newton, and he can be contacted at 617964-7000, or <hgoldstein@rfglawyers.com>
"The law is that which can be forcefully asserted and rationally maintained." Aaron Burr
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THE FIRST ANNUAL JOHN ADAMS FISKE AWARD Presented by Jerome H. Weinstein Editor's Note: As tribute to John Fiske's lifelong contributions to family mediation, the Directors of MCFM established an annual award for excellence in mediation in his name. For obvious reasons, John was the only one qualified to be the first honoree. Below are Jerry's remarks at its th surprise presentation at MCFM’s 4 Family Mediation Institute.
Hello!!! May I Have your attention!! For those of you who don’t know me, my name is Jerry Weinstein and I have been asked, and I am greatly honored to make a special presentation today. It is not on your program because it is a very well kept secret. First a short diversion — I’m sure that many of you know that I was probably (as far as we know) the first divorce mediator in Massachusetts. In 1976 six of us, one lawyer and the rest mental health professionals started the Divorce Resource and Mediation Center. We struggled to develop the concept based on information from O.J. Coogler and our own ideas. And we struggled to publicize what we were attempting to do — to the public and to the bar and to the courts. Our biggest problem was that few attorneys or judges saw any merit in the idea. In fact I was twice reported to be practicing law without a license, which led to several meetings with personnel from the attorney general’s office. A handful of professionals picked up the idea. They were mostly from the mental health area. Then in 1978 (or `79) a lawyer named John Fiske called me, and came to a meeting at my house where a small group was getting together to talk about mediation. John had recently returned from a year of traveling with his family and was interested in a new way to use his legal training and experience. He had heard about the new field of family mediation and was interested. The rest is history — and exciting history. John, more than any other practitioner of mediation in our Commonwealth has been responsible for the growth and development of our profession. He joined Regie Healey and Diane Lund. He attended training workshops and spoke to many people in the legal system about his plans to mediate. Because he knew many in the establishment, and because of his directness and sincerity, he established a credibility and dialogue with the legal community which none of us had been able to achieve. His practice prospered and the rest of us were encouraged and gained visibility. In the spring of 1982 John and I and Joanne Forbes met at a meeting of the Massachusetts Psychological Association at Wellesley College. At John’s suggestion we sat down to talk about establishing an organization for family mediators. The idea came from John and we ran with it. By November of 1982 we had a non-profit organization with 22 directors and officers, and we sent out a press release announcing the formation of the MCFM. That was our beginning. John continued to lead and open doors for us with the legal Family Mediation Quarterly
20 community. He served as our second president and gave generously of his time. But more important was the spirit of creativity and optimism that he brought to the organization. He seems low key but is tremendously energetic, and a born leader. He has a great reputation with clients and colleagues and continually comes up with new ideas. With his associates, Phil Woodbury and Diane Neumann he has probably trained more mediators than anyone else in Massachusetts. It was his idea to have the Council sponsor a conference which became the first "Gathering of Family Mediators in New England," and he chaired the committee that ran the conference. Whenever there was a difficult job to be done the first person to be called upon was John, and he rarely said no. I could probably continue for some time but I think I need to get on with the work at hand. Last summer the board of MCFM decided to create an annual John Adams Fiske Award for excellence in mediation in his honor â&#x20AC;&#x201D; and we could think of no one more deserving of being the first recipient of the award than John. Therefore I am honored and privileged to present to you the first recipient of the John Adams Fiske Award for Excellence in Mediation. Jerome H. Weinstein, MSW, was a founding member of MCFM and the first divorce mediator in Massachusetts. He is the founder and principal of the Divorce Resource & Mediation Center in Newtonville. Jerry can be contacted at (617) 965-2315, or (Photo by Lynn Cooper) <JWeinsteinDivorce@comcast.net> Fall 2005 â&#x20AC;˘ Vol. 4 No. 4
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2005 FIRST ANNUAL
JOHN ADAMS FISKE AWARD FOR
EXCELLENCE IN MEDIATION PRESENTED TO
JOHN ADAMS FISKE, ESQ.
MASSACHUSETTS COUNCIL ON FAMILY MEDIATION, INC. EST. 1982
FIRST THEY IGNORE YOU THEN THEY LAUGH AT YOU THEN THEY FIGHT YOU THEN YOU WIN GANDHI
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MCFM's 4th ANNUAL FAMILY MEDIATION INSTITUTE A Photo Array By Lynn K. Cooper
Debra Smith
John & Martie Fiske
Oliver Fowlkes
Diane Neumann
Jerry Weinstein
Fall 2005 â&#x20AC;˘ Vol. 4 No. 4
John Fiske
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Eileen Shaevel Ken Cloke
Jerry Weinstein Marion Wasserman Family Mediation Quarterly
Mark Zarrow
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Mary Johnston
Oran Kaufman
John Dugan Michael Leshin
Ken Cloke
Kathy Townsend
Jane Appell
Oran Kaufman Fall 2005 â&#x20AC;˘ Vol. 4 No. 4
25 Lynn Cooper & Les Wallerstein
John Fiske & Ron Zagaja
Lynn K. Cooper, Ed.D., is a clinical psychologist and mediator who practices in Newton, and serves as co-chair of the MCFM Certification Committee. Lynn can be reached at (617) 527-3152, or at lynnkcooper@aol.com
Copartnership Agreements ≠ Marriage in Massachusetts William F. Peck v. Sarah G. Peck, 155 Mass. 479 (1892) A man and a woman, whose domicile was in California, agreed in Oregon to live together “so long as mutual affection shall exist....” They then cohabited and held themselves out to be husband and wife in those states, and in Iowa, New York and finally Massachusetts. “We, the undersigned, hereby enter into a copartnership on the basis of the true marriage relation. Recognizing love as the only law which should govern the sexual relationship, we agree to continue this copartnership so long as mutual affection shall exist, and to dissolve it when the union becomes disagreeable or undesirable to either party. We also agree that all property that shall be acquired by mutual effort shall be equally divided on the dissolution of said copartnership. Should
any children result from this union, we pledge ourselves to be mutually held and bound to provide them support, whether the union continues or is dissolved.” On February 2, 1891 William filed for divorce on the grounds of desertion. The Superior Court dismissed the case finding no valid marriage existed. On appeal the Supreme Judicial Court affirmed the finding of the Superior Court. Justice Lathrop wrote: “There being no marriage, their subsequent cohabitation points only to the illegal contract under which it began. There is no room for any presumptions. We find nothing in the laws of the States where they lived together which recognizes such a cohabitation as a marriage.”
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A MODEST PROPOSAL By Steven Nisenbaum Editor’s Note: This article is excerpted from an email exchange between John Fiske and the author. Mass-AFCC (Massachusetts Association of Family & Conciliation Courts) has decided to engage in a two year program theme on Unmarried Parents in Family Court. Reportedly, 34.6% of children live with an unmarried parent now across the country, and in Massachusetts that number was 22,262 (up from 6,720 in 1970). In 2002, some 1,365,966 children were born to unmarried parents. In 2004, there were 16,441 paternity cases in Massachusetts, and in Hampden and Suffolk Counties these outnumbered the divorces. (Note: Massachusetts has the lowest divorce rate of any State). Of course, because a higher proportion tend to be parents who are impoverished, less educated, younger, with less parenting experience skill (or parental communication skill), these children also face formidable problems and limited familial supports. Since the average length of co-habitation is about 2 years, these children also face successive attachments to multiple parental figures. Of course, the majority of these parents may not need full divorce agreements to divide certain common assets, etc.. And most are Pro Se and don’t have (can’t afford) hired Attorneys or Mediators, and we don’t constitutionally require or routinely provide free Counsel in non-criminal cases. Some are certainly helped enormously by DOR Attorneys, dedicated Family Service Officers, MultiDoor courthouse and volunteer mediation programs, other Legal Assistance folks, your own Senior Attorneys Volunteer project, etc. But a tremendous challenge remains. They still face kids-associated problems, extended families issues, planning In 2004, there were 16,441 and parental decision paternity cases in Massachusetts. making coordination. Does MCFM have anything to contribute to this issue? Perhaps some simplified forms and procedure packets or other educational or time-limited assistance by neutrals, or online webbased or CD-ROM or DVD preparation packages to prepare for one-stop drive-through mediations, at least for some low conflict level disputes or issues around specific focal issues. (Note: I know, I know, el cheapo product and practicing law without a license, etc.) In any event, as far as planning educational programs, this might be an interesting topic, especially for joint presentations at Courthouse venues with Mass-AFCC, or MAGAL, or some Bar Association Sections. Steven Nisenbaum, Ph.D., J.D., is a clinical psychologist and a member of the MCFM Board of Directors. He can be contacted at (978) 851-7321 X 2869, or <snisenbaum@partners.org>
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WHATâ&#x20AC;&#x2122;S NEWS? Compiled By Les Wallerstein California Expands Same-Sex Parental Rights The California Supreme court ruled that both members of a lesbian couple who plan for and raise a child born to either of them should be considered the childâ&#x20AC;&#x2122;s mothers even after their relationship ends. The court, stepping into largely uncharted legal territory concerning same-sex couples and parenting, issued decisions in three cases, ruling that women whose partners gave birth had parental rights or obligations in all three. (Adam Liptak, New York Times, 8/23/2005) Massachusetts Rejects Bill to Eliminate Gay Marriage In a sign that the legalization of same-sex marriage has changed the political landscape in Massachusetts, the legislature soundly defeated a proposed constitutional amendment to ban gay marriage and create civil unions, an amendment that lawmakers gave preliminary approval to in a raucous constitutional convention last year. The vote in a joint session of the House and the Senate this year was 157 to 39. (Pam Belluck, New York Times, 9/15/2005) California Governor Vetoes Legislation to Legaliaze Same-Sex Marriage After California lawmakers became the first in the country to legalize same-sex marriage, Arnold Schwarzenegger vetoed a bill that defined marriage as between two persons. He said the bill was unconstitutional because in 2000 California voters approved a ballot measure (Proposition 22) that defined marriage as only between a man and a woman. (New York Times, 9/30/2005) Connecticut Enacts Civil Unions Connecticut became the second state (after Vermont) to legalize civil unions. But the new law, which grants gay couples every state right and benefit that married couples receive, does not resolve many questions, including how gay couples will be treated in other states, what their status is under the federal law, and whether its financially wise to legally unite. (William Yardley, New York Times, 10/1/2005) The Sad State of Domestic Violence in Massachusetts In the fiscal year 2003 (7/1/02 - 6/30/03), there was an almost 50% increase in the number of domestic violence homicides. Over 3,900 women and children sought safety at a domestic violence shelter or safe home. More than 40,000 restraining orders were issued, and every domestic hotline in the state answered an increased number of emergency calls. Massachusetts Statistics. Jane Doe, Inc. Retrieved 8/9/05 from www.janedoe.org/know.htm
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EDITORIAL: Neutrality Can Cause Harm It is axiomatic that family mediators must be neutral, unbiased facilitators of change. As catalysts of conflict resolution, our primary goal is to help family partners reach fair and reasonable settlements. While virtually all mediation standards of practice compel this commitment to our clients, what about their children? Very often our clients are parents. Children whose parents are separating or divorcing are always caught in a web of contradictions beyond their control. While they can neither preserve their family nor prevent its break-up, children frequently blame themselves — feeling that somehow its their fault. While its true that the younger Children whose parents are the child the less power they wield, it separating or divorcing are always isn’t necessarily true caught in a web of contradictions that older children beyond their control. either are, or feel, more in control. All children of families in transition suffer some loss — and hopefully experience some relief. To the extent that separation or divorce reduces the anxiety and stress that motivated their family break-up, the children become third-party beneficiaries. To the extent that separation or divorce exacerbates the tension among their network of family caregivers, the children become thirdparty victims. Any way you look at it, children in divorce and separation are integrally involved in a process over which they are overwhelmingly powerless. So what is our responsibility to these children? It is the obligation of mediators to redress that power imbalance. Ideally, this will happen in a conscious alliance with their parents. The interests of our clients’ children deserve zealous representation in our mediations. Although they are almost always absent, these children should be treated as omnipresent, thirdparty clients. We should openly advocate for their interests. This is especially true when their parents are unable to recognize or defend their well being. We can never afford to be neutral about our client’s children, nor to take them for granted. When it comes to the best interests of children, neutrality can cause harm.
The opinions expressed in this editorial are those of Les Wallerstein. He can be contacted at (781) 862-1099, or at <wallerstein@socialaw.com>.
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MCFM NEWS A RELATED PROFESSIONALS DIRECTORY All MCFM members will soon receive a letter from the Board of Directors requesting recommendations for the first edition of MCFMâ&#x20AC;&#x2122;s Related Professionals Directory. All MCFM members may nominate as many professionals in related fields as they wish for inclusion in the Directory. Recommended nominees should be knowledgeable about the divorce process and committed to creatively helping clients reach non-adversarial settlements. Among the professionals eligible to be included are therapists, parenting specialists, accountants, financial planners and attorneys. All professionals who will be included must be nominated by at least two MCFM members. Please share your recommendations with your colleagues by submitting the names of related professionals on the referral form â&#x20AC;&#x201D; which will accompany the letter. Your anticipated, prompt participation will be greatly appreciated. WATCH FOR YOUR LETTER & REFERRAL FORM . . .
MEDIATION PEER GROUP MEETINGS Merrimack Valley Mediators Group: We are a group of family law mediators who have been meeting (almost) monthly since before the turn of the century! The criterion for membership is a desire to learn and share. Meetings are held at 8:15 AM on the last Tuesday of the month from January to June, and from September to November, at the office of Lynda Robbins, 11 Summer Street, Chelmsford. Please call Lynda at (978) 256-8178 or Karen Levitt at (978)4585550 for information and directions. All MCFM members are welcome. Metro-West Mediators Group: The Metro-West group (usually) meets on the first Friday of the month at the home of S. Tracy Fischer, located at 120 Cynthia Road, in Newton. Monthly meetings begin at 9:15 AM and are open to all MCFM members. Please call (617) 964-4742 or email <tracyfischer@rcn.com> for confirmed dates and directions.
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30 NEXT EXECUTIVE COMMITTEE & BOARD OF DIRECTORS MEETING Monday, November 21, 2005 5 PM: Executive Committee 6 PM: Directors In the Office of Debra L. Smith 134 Main Street Watertown, MA 02472 Phone: (617) 924-6728 Email: lawdeb@aol.com Directions to Deb’s office are available online at www.lawdebsmith.com PLEASE EMAIL ANY AGENDA ITEMS FOR CONSIDERATION TO: President Laurie Udell at <lsudellesq@aol.com>, or to any officer, all of whom are listed in the DIRECTORATE on page 35.
“It is so far from being natural for a man and a woman to live in a state of marriage that we find all the motives which they have for remaining in that connection, and the restraints which civilized society imposes to prevent separation, are hardly sufficient to keep them together.” Samuel Johnson Fall 2005 • Vol. 4 No. 4
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EMAIL: Parent Education Online? To: Christine Yurgelun From: Les Wallerstein A client found this web site online. Can you attend parenting classes online and get a valid certificate of attendance for Massachusetts? <http://www.positiveparentingthroughdivorce.com/> From: Christine Yurgelun To: Les Wallerstein Iâ&#x20AC;&#x2122;m forwarding your inquiry to Mark Quigley, the attorney in this office who oversees the parent ed requirements. Sounds interesting.... From: Mark Quigley To: Les Wallerstein Christine forwarded your inquiry to me. Online parent education classes are NOT accepted in Massachusetts. There are a few programs that I have contacted about removing language stating that the courses are accepted in all courts in the US. Please see text from letter below. June 28, 2005 Mr. Paul Maione Positive Parenting Through Divorce 4801 University Drive Suite 2040 Davie, FL 33328 Dear Mr. Maione: It has come to our attention that your organization is offering a parent education program to the residents of Massachusetts that has not been approved by the Probate and Family Court Administrative Office. Persons who took your program attempted to submit their certificate of attendance with the Probate and Family Court of Massachusetts. The certificates were rejected. Please be advised that persons may not take this class to satisfy the parent education program attendance requirement and certificates of attendance from your program will not be accepted by the Probate and Family Court of Massachusetts. The language that is contained on your website states, in part, â&#x20AC;&#x153;In addition, this course is guaranteed to be accepted in all circuit courts across Family Mediation Quarterly
32 the USA or your money will be refunded to you.” This language will only lead to delay and frustration for persons in Massachusetts attempting to take an approved parent education program. This office demands that you include language on your website that your program is not approved in Massachusetts. If you do not take these steps, I will be left with no other option than to refer this matter to our Attorney General’s office. Please be advised that we have notified all court personnel that your organization is not an approved provider of the parent education program in Massachusetts. Thank you for your prompt attention to this matter. Sincerely, Mark R. Quigley Administrative Attorney cc: Hon. Sean M. Dunphy, Chief Justice John E. McNichols, Court Administrator
"Some weep because they part, And languish broken-hearted, And others — O my heart! — Because they never parted." Thomas Bailey Aldrich
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ANNOUNCEMENTS COMMUNITY DISPUTE SETTLEMENT CENTER INVITES YOU TO THE SPIRIT OF MEDIATION Reception & Dinner PRESENTING COMMUNITY PEACEMAKER AWARDS TO
Jeanne E. Cleary David A. Hoffman & Robert H. Smith Wednesday, November 9th 5:30 - 9:30 PM Royal Sonesta Hotel 5 Cambridge Parkway, Cambridge, MA FOR INFORMATION & RESERVATIONS CALL 617-876-5376, OR EMAIL cdscinfo@communitydispute.org
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, visit MCLC on-line at www.massclc.org.
STILL HUNGRY? If your mouth is still watering from the sumptuous buffet served at the Institute and you're looking to import some fine food for an occasion of your own, MCFM's (no longer secret) caterer is "Jason." Email for details at <Isadore 1214@aol.com>
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JOIN US 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 DeLaurice Fraylick at masscouncil@mcfm.org. 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 JWeinsteinDivorce@comcast.net. 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 2005 • Vol. 4 No. 4
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DIRECTORATE MASSACHUSETTS COUNCIL ON FAMILY MEDIATION, INC. 23 Parker Road, Needham Heights, MA 02494-2001 Local Telephone & Fax: (781) 449-4430 masscouncil@mcfm.org www.mcfm.org
TOLL FREE: 1-877-777-4430 OFFICERS President
Laurie S. Udell, 399 Chestnut Street, Needham, MA 02492-2426, (781) 449-3355, lsudellesq@aol.com
Vice-President
Kathleen A. Townsend, Divorce Mediation Group, Inc., 1441 Main Street, Springfield, MA 01103, (413) 733-4444, kathleen@divmedgroup.com
Vice-President
Marion Lee Wasserman, 199 Wells Avenue, Suite 201, Newton, MA 02459(781) 449-4815, mlw@reachaccord.com
Secretary
Jonathan E. Fields, Fields & Dennis, LLP, 20 Pickering Street, Needham, MA 02492, (781) 433-0330, jfields@fieldsdennis.com
Treasurer
Mark I. Zarrow, Lian, Zarrow, Eynon & Shea, 34 Mechanic Street, Worcester, MA 01608, (508) 799-4461, mzarrow@lzes.com
DIRECTORS
Lynn K. Cooper, Robert V. Deiana, Howard I. Goldstein, Mary T. Johnston, Michael L. Leshin, Harry E. Manasewich, Steven Nisenbaum, Lynda J. Robbins, Patricia A. Shea, Vicki L. Shemin, Debra L. Smith & Les Wallerstein
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, masscouncil@mcfm.org
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EDITORâ&#x20AC;&#x2122;S NOTICE MCFM
Family Mediation Quarterly Les Wallerstein, Editor 1620 Massachusetts Avenue Lexington, MA 02420-3802 (781) 862-1099
wallerstein@socialaw.com 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 all previous editions of the FMQ are available on-line in PDF at <www.mcfm.org>, accompanied by a cumulative index of articles to facilitate data retrieval. 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 Fall- October 15th Winter-January 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 2005 â&#x20AC;˘ Vol. 4 No. 4
Family Mediation Quarterly
INSPIRING SETTLEMENTS SINCE 1982
MASSACHUSETTS COUNCIL ON FAMILY MEDIATION 23 Parker Road Needham Heights, MA 02494-2001
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