MCFM
FAMILY MEDIATION QUARTERLY Vol. 11 No. 4
Fall 2012
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.
PRESIDENT’S PAGE: Jonathan E. Fields On September 13, as most of you know, MCFM marked an important milestone – our 30th anniversary. We honored the occasion with an event at the Endicott House in Dedham. Thanks to the organizers (in alphabetical order – Lynn Cooper, Barbara Kellman, Diane Spears, Laurie Udell, and Fran Whyman), it was a well-attended and unqualified success. Quite a few of us talked briefly to the gathering, and these were my remarks: Albert Einstein was a brilliant man – maybe the smartest to have ever lived. He was the father of modern physics, a Nobel Prize winner who gave us the theory of relativity. But what – if anything – can we learn about his marriage to his first wife? Well, by 1914 – 11 years into the marriage – things weren’t looking so rosy in the Einstein household. Realizing there was no hope for their relationship on a romantic level, Einstein proposed to his wife that they stay together for the children. But only if she agreed to a list of conditions. (This, by the way, is all true, documented in a recent biography.) And, here it is – this is what Albert Einstein wrote. Presumably, without the assistance of counsel. Or – I think you’ll agree – without a mediator. CONDITIONS You will make sure: 1. that my clothes and laundry are kept in good order; 2. that I will receive my three meals regularly in my room; 3. that my bedroom and study are kept neat, and especially that my desk is left for my use only. You will renounce all personal relations with me insofar as they are not completely necessary for social reasons. Specifically, You will forego: 1. my sitting at home with you; 2. my going out or travelling with you. You will obey the following points in your relations with me: 1. you will not expect any intimacy from me, nor will you reproach me in any way; 2. you will stop talking to me if I request it; 3. you will leave my bedroom or study immediately without protest if I request it. 4. You will undertake not to belittle me in front of our children, either through words or behavior. Continued on page 44 Family Mediation Quarterly
CONTENTS
MCFM’S GALA: CELEBRATING 30 YEARS OF FAMILY MEDIATION! All Photgraphs by Debra L. Smith 1&2 Invitation & Menu By Diane Spears, Fran Whyman & Jason Whyman 3-4 Timeline By Laurie Udell, Diane Spears & Kate Fanger 5 Where Were We, and How Far Have We Come? By John A. Fiske 7 Mediation – Here and Now By Lynda J. Robbins 9 The Mediation Quartet: Lyrics by Lynn K. Cooper 10 A Few of My “Unfavorite” Things Lyrics by Laurie S. Udell 11 Ode to MCFM: Thirty Years of MCFM and Then What? By John A. Fiske 13 THE SQUID & THE WHALE: A Relevant Tale MCFM Co-sponsors a Film Showing at Boston’s Museum of Fine Arts By Vicki L. Shemin Photos by Debra L. Smith & Lynn K. Cooper 18 ON THE SHOULDERS OF GIANTS By Steven Nisenbaum
20 MEDIATING INFIDELITY CLAUSES: An Email Exchange
22 THE ROLE OF THE FINANCIAL NEUTRAL IN MEDIATION By Susan Miller
24 THE FAMILY BUSINESS IN DIVORCE: ISSUES FOR MEDIATORS By Jeffrey Fink 29 MASSACHUSETTS FAMILY LAW: A Periodic Review By Jonathan E. Fields
31 WHAT’S NEWS? National & International Family News Chronologically Compiled & Edited By Les Wallerstein
34 Cathartics: Parenting Coordinator Pressure By Ben Garber
35 MCFM News 46 Join Us 39 Announcements 47 Directorate 48 Editor’s Notice COPYRIGHT NOTICE MCFM grants permission to reproduce and disseminate articles & graphics provided that MCFM and the authors are credited, each author consents and distribution is not-for-profit. MCFM © 2012
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MCFM TIMELINE THE FIRST 30 YEARS...
TIMELINE CREATORS: Laurie Udell, Barbara Kellman & Kate Fanger
Steve Nisenbaum
John Fiske, Janet Miller Wiseman & Jerry Weinstein
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4 ALL GALA PHOTOGRAPHS BY DEBRA L. SMITH Some of Deb’s other photographs will be on display at the Watertown Free Public Library at 123 Main Street, in December, 2012.
Fran Whyman, Diane Spears, Lynn Cooper, Laurie Udell & Barbara Kellman
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WHERE WERE WE, AND HOW FAR HAVE WE COME? John Adams Fiske
I just want to remind you all how fortunate we are to have three laws that benefit our mediation practice and process. The first law is no-fault divorce. Before that achievement, divorce was a disgusting and often perjury-promoting undertaking. The plaintiff had to prove the defendant was at fault, specifically was cruel and abusive, or committed adultery, etc., etc. A story from former Judge Edward Ginsburg may give you an idea how horrible was this dark corner of legal practice. His boss sent him as a young lawyer to Salem to get a divorce for their client the plaintiff wife. He prepared her as a witness and had her testify that her husband hit her twice. The judge said, “Twice is not cruel and abusive. Divorce dismissed.” The sobbing wife and her crestfallen lawyer left the courtroom, and Ed Ginsburg was standing in the hall wondering what to do next. A court officer took pity on him and took him to another courtroom where they had another trial that morning before a different judge who heard the same evidence and said, “Hitting your wife twice is cruel and abusive treatment” and granted the divorce. No longer do we have to argue about the past. No longer is the question, who did what to who? Now we can sit down with the parties and smile at them and say, “What would you like to do tomorrow?” The second beneficial law is the joint petition. When I started mediating in 1979, I would help the parties reach a signed agreement and they would ask, “What do we do now to get a divorce?” and my answer was “One of you has to
sue the other” and they always looked like they wanted to vomit. My partners Regina Healy and Diane Lund helped me write a joint petition bill and we got the Mass Bar Association to support it and it passed right away. When you fill out the friendly cooperative joint petition, be sure to cross off the “v” for “versus” at the top. It isn’t “versus” any more. The third beneficial law makes mediation confidential, and requires mediators to have at least 30 hours of mediation training and to belong to organizations such as the MCFM, who wrote the law and helped to get it passed. Before we had confidentiality I was deposed for 12 hours and all my files in the case were subpoenaed and copied on my own copier by the lawyer for the plaintiff in a modification action two years after the divorce. The MCFM submitted an amicus brief in support of a motion to quash the subpoena and the superior court judge denied the motion because there was no mediation privilege without a statute. At midnight on the way home from my deposition I asked my lawyer Diane Lund what I could possibly do to repay her for guiding me through all that torture and she said, “Rewrite your mediation contract to include confidentiality.” I did that the next day, and then the MCFM and the Mass Bar Association got the mediation bill passed right away again. So you and I are now very lucky to practice mediation in the brilliant shadow of these three important laws. When you talk to family mediators in other states you learn lots of them do not have this threesome, so be duly thankful.
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John Fiske
Barbara Kellman
Marion Wasserman, Laura Gibbs, Jon Fields & Mindy Milburg
David Feldman, Justin Kellsey, Tanya Gurevich, Jessie Foster, Les Wallerstein, Mary Johnston & Harry Manasewich
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Mediation – Here and Now Lynda J. Robbins
Massachusetts was an early adapter in the mediation world. We are also somewhat unique amongst family mediation communities in our integration of mediators from different professional backgrounds—mostly attorneys and mental health professionals but, a smattering of others as well. We continue to work together as an organization after 30 years. In my service on the MCFM Board, I was constantly impressed by the value each member brought to our community and the working collaboration that exists. MCFM currently has 245 members. An all-time high. Members are located in 96 cities and towns all over the Commonwealth. MCFM members have a high degree of professionalism as evidenced by our sell-out attendance at Professional Development meetings (it doesn’t hurt, of course, that John and Steve make sure we have outstanding programs!) and, of course, our annual Family Mediation Institute (spear-headed by Laurie and her tireless committee!). MCFM members are active in peer support groups around the Commonwealth—another way to increase their professionalism, skills, education and, the “secret” side benefit--networking with other mediators. We support each other through these groups and informal mentoring within and outside of these meetings. The community is generous with their time and expertise and support of new mediators as well as those of us
who are experienced but have more to learn. We also populate various “sister” organizations such as MA-AFCC, NEACR, MCLC and their national and international partners. We share our expertise and learn from others. This allows us to better serve our clients by assuring that we bring all available resources to the table. Unfortunately, I wasn’t there at the very beginning but, I was at the first conference in April 1983 and have attended every one since. I wouldn’t miss an opportunity to “hang out” with this impressive group. Mediation has come into its own—we are now referenced in popular media and there’s even a television show centered around mediation—loosely defined, of course, but, we take what we can get! The internet has helped many of our clients find us and has brought our services to the attention of clients, referral sources, legal professionals and others. The internet will continue to be a valuable tool as we continue to develop. I remember a story Oran Kauffman told me years ago about opening his own mediation practice and having the sign come back “meditation.” I can happily report that we are no longer confused with meditation! The unfortunate economic conditions of the past few years have perversely helped us. People are looking for a less
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8 expensive way to resolve their divorces. Mediation can usually provide that. Clients have also learned that, for most of them, the “scorched earth” approach isn’t healthy—for themselves, their children or their wallets. Mediation allows them to divorce with dignity and co-parent their children. It honors the good in their marriages and helps put the bad behind them. We are peacemakers in times of conflict and confusion.
it is. Often we have to overcome our own internal and learned instincts in order to sit quietly and listen. While at the same time bringing all that knowledge and nature to bear in order to assist our clients. And, through it all, MCFM is there to support our growing profession. The greatest thing I can say about mediation here and now is that, thanks to MCFM and its dedicated members, mediation is here to stay.
Mediation is not “kumbaya.” Those of us who have sat in the room know how hard
Frank Farley, Rebecca Gagné & Lynda Robbins
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THE MEDIATION QUARTET
IN HONOR OF THE 30TH ANNIVERSARY OF THE MASSACHUSETTS COUNCIL ON FAMILY MEDIATION
Lyrics by Lynn K. Cooper Sung by: Barbara Kellman, Lynn Cooper, Marion Wasserman & Doris Tennant The only people on this side of the earth (aside from the lyricist) that know the tune to these lyrics are Barbara, Doris, and Marion... and those with memories of September 13th!
Come to my table, husbands and wives. If we are able, here you can thrive. Rather than fight over money and things, Let’s help your children play and grow wings. When the Mass Council first came to pass, To get a divorce was a pain in the ass. Fighting and strife, some won and some lost. Families and children would suffer the cost. Mediation stories—of them there is no doubt. When the fire rages, we try to put it out. When we do the child support, the payor’s eyes get wide. Then they have to talk about expenses on the side. When you are married, things can get harried. Honeymoons fade and reality bites. If you want out, be sure there’s no doubt, Just call us and we’ll help avoid a big fight!
Oran Kaufman, Debra Smith & Michael Leshin
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A FEW OF MY “UNFAVORITE” THINGS Lyrics by Laurie S. Udell
Sung by MCFM’s Quartet to the tune of a song with a similar name from the Rogers & Hammerstein Musical: The Sound of Music
Meeting the clients – I know I’ll get headaches Though they seem nice; they’re sure to be loud How do I get them both to agree When I would much rather be up a tree. House under water, no cash, an affair Time with the puppy, I don’t think I care He wants to move to a beach in Palm Springs These are a few of my Unfavorite Things. Want the Couple With some Assets No Debts to divide Who are civil and quiet, want joint custody Oh why can’t they come to me? They’re nearing agreement, Their money all spent; I’ve worked my magic; They will pay the rent Health insurance, life insurance, money for my fees These are a few of my Favorite things. Though I had to; Threaten mayhem, Let the judge decide; I simply remember my favorite things And then make my way outside.
Susan Miller & Bill Levine
Jeff Fink & Karen Van Koos
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AN ODE TO MCFM Thirty Years of MCFM, and Then What? Composed by John A. Fiske on Labor Day, 2012 When we started people called it meditation; We persisted, much to some folks’ irritation, Settling divorces with courage and impunity, And finding strength in our professional unity. In nineteen hundred and eighty two The Council was formed, by Jerry and crew. With help from the Academy we grew and grew Made joint petitions and confidentiality too. Then came support groups and training, Conferences, newsletters and even entertaining. All this energy needed help from Dee Then Ramona took on you and me; We’ve got a website, very orderly And the perfect model of a Mediation Quarterly. All these pearls in thirty years seem To exceed every hope and dream. Our naysayers may even allow: Mediation is the cat’s meow. But we have promises to keep With families trying not to weep And dealing with all kinds of stress: Mediation helps them Get to Yes.
Karen Levitt Les Wallerstein, Diane Spears & Jerry Weinstein
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Aimee Bonacorsi & Maura Sullivan
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Vicki Shemin & Doris Tennant
Lynn Cooper, Rachel Goldman & Eric Schutzbank
E. Choteau Levine, Debbie Danger & Laurie Israel
Chris Chen & Diane Pappas
Boston Playback Company: Improv Troupe Ari Shapiro, Nir Shavit, Carol Feldman, Sarah Burd & Teresa Dinaburg
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THE SQUID & THE WHALE: A RELEVANT TALE By Vicki L. Shemin
Background: On Thursday, April 12, 2012, the MCFM heralded its 30th Anniversary Year celebration with a special screening and discussion of The Squid and the Whale at The Museum of Fine Arts (“MFA”). The film was also part of the Second Annual Hollywood Scriptures Film Series co-sponsored by the MFA and the Massachusetts School of Professional Psychology on the “Psychology of Human Nature in Cinema – Family Matters. ”Based upon his work at the Harvard International Negotiation Program, Dr. Nisenbaum honored the memory of his late wife, Jamie Solomson Robredo Nisenbaum, a social worker, Peace Corps member, artist and his devoted movie companion. The Squid and the Whale viewing was preceded by a MCFM celebratory cocktail hour at the MFA and was followed by a panel discussion featuring Chief Justice Paula Carey, Judge Angela M. Ordoñez, David A. Hoffman and John A. Fiske. I introduced and moderated the panel discussion and made all best efforts to channel Laura Linney for what I described that evening as “Masterpiece Classic Divorce.” In order to give the reader the sense of what it was like to be there, I have reproduced my opening remarks and a portion of Reader’s Guide in the hope that you will have a chance to see the film (or view it again through a new lens) – and acknowledge why The Squid and the Whale remains such a timeless and relevant tale.
Standing: John Fiske, David Hoffman & Steve Nisenbaum Seated: Hon. Angela Ordoñez, Cheif Justice Paula Carey & Vicki Shemin
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14 Opening Remarks: What flames the genius of this film and qualifies it as a Masterpiece? Is it that it’s such a clear-eyed homage to the failed marriage of the director’s parents? Is it because, if each of us is honest with ourselves, we may have uttered some of these same words or behaved in these same ways, and illuminated our own psychological blind spots? Or maybe we have borne witness to hearing or seeing loved ones – (or eavesdropped on others) – talking or acting in similar, regrettable ways? Like a traffic accident in the making, we’re pretty sure we’re not going to like parts of what we’re about to see, but we’re also pretty sure we can’t avert our eyes. What makes it all the more real is that Noah Baumbach literally uses all the visuals of his youth to take us back to a time and place oriented around his junior year in high school in 1986. Bernard (the Father in the film) wears the clothes of the filmmaker’s real-life father – Professor/Novelist Jonathan Baumbach; the talent show is staged at his alma mater – Midwood High (where Woody Allen also graduated); his real-life father, Jonathan Baumbach, returns some of Jon Fields, Amy Martell & Lisa Smith those ace tennis strokes you’ll see in the opening scenes; the filmmaker cast his closest friends as the grad students in Bernard’s creative writing class; and he borrowed his real life mom’s books [ah…the symbolism of those books] to line the shelves of Joan’s Park Slope home. The screen can hardly contain the enormity of emotions that will be thrust upon you in the next 81 minutes as you witness the clash of the titans personified as Bernard and Joan Berkman, but you will witness equally powerful performances by 12-year-old Frank (son of Kevin Kline – who never acted a day in his life before this film) and by 16-year-old Walt, played by Jesse Eisenberg (who, after watching this experience, we can understand how perhaps ended up having a Kafka-esque experience, had a metamorphosis and became Mark Zuckerberg – and also landed somewhere to the right on the DSM-IV Asperger’s Spectrum). I would be remiss if I did not direct your attention to some key aspects of the film: first, the cinematic confection captured in the opening scenes of the tennis game – because it sets up the rest of the film so beautifully; second, a conversation between Bernard and Joan that occurs outside the earshot of the children is such a stand-alone moment notable for its elegance and civility – it really is the “filet” of the movie; and, third, not to be forgotten, there really are TWO ROCK STARS – Continued on next page Fall 2012 • Vol. 11 No. 4
15 one for you to guess. The other is the nameless CAT. And we’ll discuss all this with our panel. Finally, much has been made about the title of the film – so please think about that as Lynn Cooper, Howie Goldstein, John Fiske & Jerry Weinstein well because Baumbach has said that he thought it would mean something very different to the viewer at the end of the movie than it did at the beginning. So, here’s to the genius of Steve Nisenbaum for gathering us here tonight and inviting us to share in his passion, and here’s to the loving memory of Jamie Nisenbaum – Steve’s wife and Jessica’s mother. Jamie – you are in our thoughts and hearts tonight. And to all parents and children – let’s take what is best about our parents and, well, as for the rest, let’s forgive and try to transcend – or at least make up a good story about ourselves and how we got to be the way we are. For Masterpiece Classic Divorce – I am Laura Linney. Enjoy the film. Reader’s Guide: The Squid and the Whale is a semiautobiographical film by screenwriter Noah Baumbach set in the Park Slope section of Brooklyn in 1986. The opening scenes of the tennis game foreshadow the battle lines drawn in the disintegrating family. The father, Bernard (Jeff Daniels), a once-successful novelist cum professor, suffers the indignities of rejection not only on the home front but also at the hands of his publishers. Meanwhile, just as the career of his wife, Joan (Laura Linney), hits a high note with a featured publication in The New Yorker, her extramarital affairs become an untenable source of tension between the couple. The Berkmans decide to separate and devise an ill-advised joint custody arrangement consisting of an every-othernight shuffling of homes for their two sons, 16-year-old Family Mediation Quarterly
Harry Manasewich
16 Walt (Jesse Eisenberg) and 12-year-old Frank (Owen Kline, son of Kevin Kline) – and, oh yes, for the family cat. The boys are deeply affected by the situation and soon end up on opposite sides of their parents’ conflict. Walt holds his mother solely accountable for the divorce and opts not only to stay with his father, but adopts whole cloth his father’s opinions and ideas as if they were his own pseudo-intellectual beliefs. He also begins dating his first girlfriend, but finds himself vying with his father for the attention of the older and provocative Lili (Anna Paquin), one of his father’s grad students who is living with them. Boundaries blur further when Joan begins dating Frank’s tennis coach, Ivan (William Baldwin), and Mary Johnston, Howie Goldstein, Janet Miller Wiseman & Debra Smith Frank acts out in disturbing ways at school and home when he is left abandoned and unsupervised by his parents. The film captures the increasingly fractured emotional states of each resident of the Berkman household; traces how the original battle lines become re-districted; and ultimately provides some poignant lessons about how we all grow up incorporating what is admirable about our parents – and, hopefully, forgiving (and moving past) what is not. Philosophy: Dr. Nisenbaum suggests, “Today’s multiplex theater is a moviegoer’s Holy Sanctuary, insulated from everyday tribulations. Sitting together in reverent silence, the ‘sermons’ come to life as depictions on the Holy Altar silver screen. Each moviegoer dwells in respectful meditative awe (no cell phones, texting or idle chatter) among brethren souls of devotional congregants in the darkened transept row pews. The spectacle of the iconic stories and characters reveals lessons amidst drama, unfolding special effects, marvelous costumes, elaborate sets, with a like power to the fantastic Biblical fables that captivated pre-cinematic cultures. The language of film is universal. Gripped in rapt attention, we suspend disbelief, indulge fantasy, reflect on our deepest hopes and examine our worst fears. The underlying mythologies spring forth. Doubt is momentarily vanquished. We savor renewal and communion in a ritual celebration with popcorn and coca-cola from the refreshment stand. This is a hallowed Temple for renewal of faith in our intrinsic bonds, disciplined pursuit of truth, contemplation together among co-acting others of Meaning in our shared human predicament, Continued on next page Fall 2012 • Vol. 11 No. 4
17 confirming our mutual capacities for the full range of connective Human Emotion. Reality is perceived through a glass darkly.” Judge Ordoñez helps make the lessons learned from The Squid and the Whale become a relevant tale by asking certain recalcitrant parents to sign and date a contract that she has come to call the “Parents’ Promise”: Parents’ Promise
Mary Johnston
We want you to be children and we will act like adults. We promise to get along better. We will listen to each other with respect and dignity. We will work harder to communicate and calmly address issues with each other privately and will not talk to you about those discussions. We will listen to each other and think before reacting. We will keep our disagreements private. We promise not to get you involved in our disagreements. Although dated in many ways, this film has withstood the test of time. It resonates across the generations and across professions and socioeconomic classes. Each time the viewer watches the movie it manages to grow even more powerful and more complex, and still offers lessons applicable to our clients — and our own families. Vicki L. Shemin, J.D., LICSW, ACSW is “of counsel” to Boston Law Collaborative, LLC, a pioneering, multi-disciplinary law firm. In 2011 she was selected to the Bar Register of Preeminent Women Lawyers, and was also named among Boston’s top rated lawyers in the disciplines of Alternative Dispute Resolution, Family Law and Divorce Law. Vicki can be contacted at vshemin@bostonlawcollaborative.com.
“We build too many walls and not enough bridges.” Isaac Newton
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ON THE SHOULDERS OF GIANTS* By Steven Nisenbaum
“If I have seen a little further, it is by standing on the shoulders of Giants.” Sir Isaac Newton’s 1676 letter to Robert Hooke *From the Latin phrase of John of Salisbury in 1159, and also attributed to Bernard of Chartres. It was immortalized in the stained glass panes below the Rose Window of the south transept in the Cathedral at Chartes, depicting the four Evangelists on the shoulders of the four Major Prophets.
In divorce mediation, it is healing for spouses to not just reflect on the hurt and immediate pain, and on the issues urgently challenging them to be resolved. It is also helpful for them to respect themselves and take credit in honoring the feelings, hopes, and the trials and tribulations of the times, good and bad, shared together. A marriage is not simply a tally sheet of success and acquired fortune, but also a matter of who one is coming to be that is worked on and toward along the way, including the dreams, children and family, and so many other experiences along the way. Indeed, if there is a silver lining, like other pivotal life changes, divorce is an occasion to take stock about what wants to be next. The world of professionals who promote negotiation of conflict to promote good and healthy choices also deserves to take stock of its ideals and heed its heroes and exemplars who have led and inspired us to do this work. The recent death of two leaders and the retirement of another is an appropriate occasion for us to pause, reflect, and acknowledge how far we have come.
aggravation with adversarial litigation in his real estate law practice in the early 1960’s prompted him to publish The Art of Negotiating in 1968, a seminal work cautioning against the usual strategy that it is best to try to win at all costs. In an interview in 1983, cited in the Boston Globe, he pointed out the counterproductive consequences of an attitude that “life’s a game” in which you “try to make everyone else lose who plays with you.” At the Negotiation Institute he founded in Manhattan in 1966, he promoted the alternative view that, as he put it, “In a successful negotiation, everybody wins.” With Henry H. Calero he co-authored How to Read a Person Like a Book in 1972, in which he also advised negotiators to pay particular attention to body language and nonverbal communications, as well as underlying motives and interests, rather than simply the overt bargaining positions and demands. Roger Nierenberg is a conductor who uses orchestra as a teaching model for improving group dynamics, and he noted that his father was very interested in language and “how we know what we know,” because he saw how that “locks us into self-limiting the kinds of choices we can make.”
In late September Gerard Nierenberg, Esq., passed away at the age of 89. His Continued on next page Fall 2012 • Vol. 11 No. 4
19 No luminary in our field of ADR has had more influence than Prof. Roger Fisher, who passed away at age 90 in early August. His book Getting to Yes! (coauthored with Bill Ury) in 1981 surely is the Bible for furthering and fashioning the approaches and techniques to operationalize the premise of “interests” instead of “positions” as the basis of negotiated conflict resolution that led to the field of ADR. Prof. Dan Shapiro, Roger’s HLS protegé at Harvard International Negotiation Program and coauthor with Prof. Fisher of Beyond Reason: Using Emotions as You Negotiate, and their followers have ushered in what is a New Age in Jurisprudence, that is conceived not only as law and the courts per se but broadly as the regulation of human affairs, and the settlement of disputes. But this is really an“Un-Jurisprudence” because it emphasizes not “The Rule of Law” per se as centrally sacred, and especially not Anglo-American discerning the common law rules. Instead of looking to a Court’s determination from precedential cases the binding authority as solution, the key is an improvisational choice of mutual consensual agreement. That is, jointly creating solutions as an act of Will to transcend the differences for mutual benefit rather than forcing to choose between sides.
This summer also marked the announced retirement of Stu Webb, founder of the Collaborative Law movement on January 1, 1990. Frustrated with his years of divorce litigation, Webb was determined to train lawyers to agree to use nonadversarial problem-solving as the best way to further the interests of the parent as client and their families. He created an Institute in Minneapolis that gathered likeminded lawyers and other collaborative professionals, and has been spreading across the U.S., Canada, and around the world in just 20 years. With gratitude for their leadership and teachings, and “Thanks for the Memories!” Steven Nisenbaum, J.D., Ph.D. is on the staff at MGH/Harvard Medical School in Psychiatry, and at Tufts Medical School in Pediatrics. Steve is Senior Consultant at the Harvard International Negotiation Program and President of the Hollywood Scriptures Film Academy. His work focuses on helping families and family members find ways to avoid the destructive effects of conflict, including marital, couples and individual therapy, mediation, coaching, parent coordinating and evaluations with divorcing and with never married parents and their children, and with courts. He can be contacted at snisenbaum@partners.org.
“Lost time is never found again.” Benjamin Franklin
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MEDIATING INFIDELITY CLAUSES: AN EMAIL EXCHANGE QUERY: Oran Kaufman is mediating a marital agreement for a couple. The wife wants to include an “infidelity clause” so that if one spouse is unfaithful, there is a financial penalty entitling the faithful spouse to a lump sum if they divorce. Please email your thoughts on this subject to wallerstein@socialaw.com for publication in an upcoming edition of MCFM’s Family Mediation Quarterly.
Les Wallerstein <wallerstein@socialaw.com> I can’t think of any reason why divorcing spouses can’t mediate an infidelity clause, and if neither spouse contested the clause at the time of divorce I think a judge would uphold it. However, if at divorce the unfaithful spouse argued against enforcing the financial penalty as unfair or onerous, I can imagine a judge thinking twice before enforcing it. If the infidelity clause were treated like a liquidated damages clause in contract... the court would have to assess the reasonableness of the financial burden at breach... and I don’t know how anyone could do that... so I suspect the larger the financial burden, the less likely it would be to be enforced if contested. Bill Levine <wmlevine@levinedisputeresolution.com> While I do not have cases to cite, my sense is that this kind of clause would be at risk of being unenforceable as a matter of public policy in a premarital agreement, and even more so perhaps, in a marital agreement. In the latter, where the court is obliged to scrutinize the emotional landscape surrounding the negotiation and execution of the instrument, this provision smacks of the economic over-reaching of a party who has been burned; and the Massachusetts cases that condone indirect penalties such as disproportionate asset splits tend to be limited to financial misbehavior, domestic violence and lack of contribution under M.G.L., chapter 208, section 34. I suspect, but do not know, that there is case law in other jurisdictions that would shed light on this interesting question. I am not in the office today, but if I were, I would look at ALI’s Principles of Family Law and the Uniform Premarital Agreement Act, as they may well weigh in in this subject. Lisa Jacobowitz <lisajacobowitz@gandjlaw.com> I can’t imagine a judge approving an agreement with this type of language. In my experience courts are loathe to be the arbiter of morality and will refrain from doing so. How would one define infidelity (think Pres. Clinton)? What evidence would be needed as proof? Why stop at infidelity and why not attach a financial penalty clause to other behavior that is distasteful? What a Pandora’s Box. Just my musings…. Marcia Tannenbaum <marcia@solutionsthroughmediation.com> Here are some random thoughts: How are they (how is s/he) defining infidelity? Sexual? Emotional? What does each of them think it means? How will they know if one of them has been unfaithful by their definition? Would this kind of clause lead to less honesty and, hence, less intimacy between them? Not a good omen for their marriage. The other problem I am having is that I don’t know how they Continued on next page Fall 2012 • Vol. 11 No. 4
21 will put a number on it, however they define infidelity. Is a 3-month affair with a colleague worth the same $10,000 ($100,000 / $1,000,000) as a one-night mistake at a foreign conference? Why does the client feel this is necessary? Appropriate? Is there a history of infidelity in their relationship? What’s going on between them that infidelity is an issue? Laurie Udell <Lsudellesq@aol.com> Certainly an interesting concept, but one that I’ve never been asked to include in an agreement. The problem I see is proof of infidelity or even who was unfaithful first. John Fiske <jadamsfiske@yahoo.com> What’s wrong with the clause? The Ansin case confirms my theory that our present SJC is a contracts court, upholding bargains freely arrived at between couples absent duress, fraud, etc. and with independent legal advice. One of the Connecticut mediators I was training in a marital mediation class gave me a marital agreement from one of her couples in which each agreed to pay the other $15 for being late to a therapy appointment, or something like that. If couples want to agree to that penalty, they should be able to. The plaintiff suing the spouse for adultery should not be estopped by the argument that “It’s your fault I committed adultery because you are ... (insert your favorite downer here).” Barbara Kellman <barbara@kellmanlegal.com> It seems to me that John is right except I wonder exactly how someone goes about proving infidelity (something I assume the legislature wanted to gets away from by having “no fault” divorce) and enforcing such a clause and, obviously, what it says about the existing trust and ability to build trust in the relationship. But I guess none of those things are exactly legal objections. The one legal question I have and don’t know the answer to is, if it came to court enforcement, whether this gets in to a realm that the courts would rather stay out of ... you can’t make a contract for sexual favors... can you make a contract to refrain from sexual conduct? I was looking at Wilcox v. Trautz which says, among other things: To the extent we have not previously done so, we adopt the view that unmarried cohabitants may lawfully contract concerning property, financial, and other matters relevant to their relationship. [Note 4] Such a contract is subject to the rules of contract law and is valid even if expressly made in contemplation of a common living arrangement, except to the extent that sexual services constitute the only, or dominant, consideration for the agreement, or that enforcement should be denied on some other public policy ground. [Note 5] We shall no longer follow cases in this Commonwealth to the contrary. I don’t know whether this clause crosses over into a subject matter that courts would rather stay out of? Family Mediation Quarterly
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THE ROLE OF THE FINANCIAL NEUTRAL IN THE MEDIATION PROCESS By Susan M. Miller
Mediation often involves a delicate dance as the mediator simultaneously engages in active listening to the clients and processing information central to the issues to be resolved, which frequently include complex financial issues and figures. In this situation it can be difficult for the mediator to manage the divorce mediation process and assist the parties to understand demanding financial issues, particularly when one or both of the parties lack the knowledge needed to make informed financial decisions. This lack of knowledge almost invariably leads to fear by one person that they will agree to a resolution that adversely affects their financial future. The use of a financial neutral can provide significant assistance to the mediator in helping the clients understand and often resolve the financial issues involved in the divorce. The neutral financial expert can help one or both parties digest complex financial issues while the mediator focuses on the process and facilitates the dialogue between the participants. The financial neutral can also generate options for consideration by the parties while being guided by the mediator. Divorcing spouses regularly come to the mediation table with an imbalance of knowledge about the family finances, which can impede the mediation process while one spouse attempts to come up to speed with understanding the overall financial situation. A skilled financial neutral can help reduce the perceived knowledge imbalance by patiently
explaining financial concepts and working with the less knowledgeable spouse to increase their financial understanding and therefore comfort level within the mediation process. Even if one spouse has the financial knowledge and ability to explain the family’s finances, the message is often lost due to anger, hurt, and/or lack of trust. Frequently the same message delivered by a neutral expert can be heard in a constructive manner that allows the mediation process to move forward. A financial neutral can be engaged either in a co-mediation situation or in a type of “serial” mediation in which the clients meet separately with the financial neutral to address financial issues that have been identified with the mediator. This latter approach has the benefit of holding down costs for the clients, as they are not paying for another professional at the same meeting. However, including the financial neutral in a co-mediation session when the topic is family finances can be a powerful tool to help the parties process the information, especially when the messages are difficult to deliver. In either situation, it is preferable that the financial neutral also be a trained mediator, so that they understand and work within the mediation framework. A financial neutral can provide a wide range of assistance, depending on the needs of the parties. I have acted as a financial neutral in numerous mediations and have encountered some interesting financial situations:
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23 • In one case, both spouses were engaging in destructive financial behavior by willfully overspending and ignoring the mounting debt as a way of hurting each other (they were obviously hurting themselves as well). I worked with the couple to develop interim and postdivorce budgets as well as strategies to increase cash flow during the divorce process. • One couple, who were both employed by universities and received numerous perks as part of their jobs, wanted to equalize after-tax incomes and include their respective perks in the calculation of their after-tax incomes. I developed a formula for the parties to use each year to calculate support in order to achieve their goal of equal after-tax incomes until the children were emancipated. • In one instance, the husband was moving out of state and wanted a spreadsheet to calculate the amount of alimony that he needed to pay each year to result in a specific after-tax amount for his wife. I created the spreadsheet but pointed out that this could change depending on future changes to the tax code! • Probably the most unique co-mediation that I have been involved in included a team of 3 mediators (myself, David Hoffman, and Richard Wolman of the Boston Law Collaborative) helping a large family, who were beneficiaries of a significant parcel of land, become disentangled so that the ‘Withdrawing Beneficiaries’ could sell their interest to the ‘Continuing Beneficiaries’ who wanted to continue to own the land. The process involved unraveling “showstopper” tax issues associated with
the transfer, as well as significant emotional and legal issues that were successfully mediated by our mediation team (you can read the entire case study on Boston Law Collaborative’s website: “Restoring Trust to the Beneficiaries”). Including a financial neutral in the mediation process: • Allows for specialized expertise to be introduced to an area that is central to most family disputes – finances. • Reduces the knowledge disparity that often exists between the parties on financial issues. • Deters one or both parties from putting forward self-serving arguments or proposals that serve only to lengthen and possibly derail the mediation process. • Allows the primary mediator the freedom to focus on the remaining family issues in order to achieve a holistic resolution.
Susan M. Miller, MA, CPA, CFP, CDFA is a trained mediator who has been providing financial planning, tax, and investment advice to individuals, small business owners and non-profit organizations for over 20 years. She currently serves on the Civil Committee of International Academy of Collaborative Professionals, and is co-chair of the Family Law Practice Group of the Massachusetts Collaborative Law Council. Susan can be contacted at smiller@aurorafa.com.
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THE FAMILY BUSINESS IN DIVORCE: ISSUES FOR MEDIATORS By Jeffrey Fink
There are millions of family businesses in the US, and even a buzz-word, “copreneurs,” to describe couples who work together. Unfortunately, with up to half of all marriages ending in divorce, a significant number of these businesses will end up as a football to be tossed around between squabbling spouses. To complicate matters, not all “family businesses” are mom and pop affairs. A significant number have children, siblings, aunts, uncles and cousins involved. The dynamics can get complicated. While each situation is different, a handful of issues come up fairly often. No Paper Most lawyers helping to set up a business advise clients to put certain rules of the road in writing. In a corporation, these rules are generally in the certificate of incorporation, bylaws and a shareholders agreement; in a general or limited partnership, in the partnership agreement; and in a limited liability company, in the operating agreement. There may also be employment agreements. If these documents are well prepared, they provide guidance on who owns the business (sometimes surprise relatives end up holding stock certificates), the mechanics of who runs the business, what happens to profits and losses, transferring ownership interests and related matters. If documents do not exist or do not address particular circumstances, the law may fill in the blanks. If worse comes to worse, most of
the governing statutes provide that a receiver can take over and sell the business under certain circumstances, and of course the Probate and Family Court has the power to divide marital assets. Before any serious negotiation can take place, everyone involved should be aware of the legal and contractual landscape. Company lawyers can be helpful in the process, although if they appear to take sides they can contribute to an atmosphere of mistrust. Should I Stay or Should I Go? Both parties are often emotionally as well as financially invested in the business. It may have also been a major part of their social lives. The parties should consider whether it makes more sense for one to buy the other out or for them to try to continue working together. Sometimes, once tension from their personal lives is separated from their professional lives, couples do manage to make the transition to being just co-owners. One of the major factors is whether effective lines of communications between them are still open. Who Does What? Small businesses are notoriously inchoate. At the outset, everyone pitches in to do whatever is required. As time goes on, the roles may become more defined, but in that process there is often conflict around overlapping responsibilities or jobs that do not get done. Divorce adds an extra layer of complexity to a problem that may already exist. Job titles only go so far. Continued on next page
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25 spouse whose ownership is surviving may find that he or she needs a surprising amount of time and effort to revive the business after the dust settles. Business valuators may pick up on it and point it out in a report that the judge sees, should it go to litigation – not a good result for anyone. An advocate Separating a family business can needs to be aware of the possibility. A mediator be a divorce within the divorce. should have the parties may not know what the other is doing and explore it early in the process. attribute negative motive or inactivity. The flip side is that the party who is In a divorce involving children, one of the leaving the business may be tempted to mediator’s jobs is to focus parents on adopt a “scorched earth” approach: which of them is responsible for which destroy everything the remaining partner aspects of childcare at what time. In a has. Self-interest might dictate a different divorce involving a business, the mediator approach, since the business may be an should help the parties demarcate their asset for which the departing party may be responsibilities and who reports to whom, paid, or a source of income to pay which will help whether they continue to alimony or child support. Still, everyone work together or whether they separate. involved should be aware that, human The process should result in better lines of nature being what it is, the temptation is communication, too, which will help on there. both the personal and business sides of the Cash or Carry Often enough, the family divorce. business is the largest asset the divorcing The Goose and Her Golden Egg If one couple has. It will be part of the overall member of the couple will be staying with property division. At the same time, one the business after the divorce, he or she or both spouses may be working in the might be tempted to hold off on making business. It is an income stream. If only some sales or improvements until after the one of the partners will be staying with split is formalized. Otherwise, he or she the business and the other is keeping an will just be increasing the value of the ownership interest, how do they decide asset and, possibly, how much he or she how much of the business income will be will have to pay to buy the other partner coming out as salary and how much as a out. It is a natural response that may not distribution to be split pro rata in even be conscious. However, holding out accordance with ownership? How do they may injure the underlying business. If decide if there is enough cash available customers start to drift away or innovation for one partner to buy out the other, or if is locked down for a year while the it should be done over time, or if it should divorce trickles through the system, the be done with cash flow from the business, Conflict over work responsibilities affects the separation process directly. It is very common for one party to believe the other one is lazy and incompetent for not doing a job that the other does not even think is his or hers to do. Alternatively, as communication breaks down, each party
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26 or with third-party financing, or with security other than the business assets? Toxic Flypaper Sometimes, in a relationship we see one partner with a deeply held view that anything he or she has touched is automatically his or hers. The downpayment for the car came out of my Christmas bonus? It means I should get the car no matter where the monthly payments come from. I need it more than you do anyway. In a business, this viewpoint shows itself as, “I touched it. I did it. I am responsible. I am the real business. You are not.” At some level, the other partner’s contributions are diminished or dismissed. I once encountered a gentleman who referred to his 50-50 partner as a “glorified secretary” because the partner “only” took care of all the day to day business operations. Outside the divorce context, this mindset is very common in technology companies, with each of the inventor and the CEO seeing himself as more important than the other. Sometimes, this sense bleeds from the personal life to the business life and visaversa. It is not an uncommon protective response to conflict. In more difficult cases, the mediator may have noticed unstable and violently defended ego boundaries that affect all aspects of the separation. However, in the business context, the mediator should be slow to assume it is purely a manifestation of individual psychology. There may be more than a grain of truth behind the party’s belief. Sometimes even equal partners do not pull their weight, and as mediators we do not have the data to
evaluate it. We have to pay attention to the parties’ beliefs, though, or else we are not doing our clients any favors: if operating roles are not covered in the postseparation business the business may not survive, and if one of the parties feels violated by an agreement on the family business the rest of their separation discussions will be at best strained. As central as this sense may be to all aspects of the dispute, the mediator should be careful when opening the wounds it may have caused. On the one hand, it may be a stumbling block the parties must get past. On the other, it may be so deeply held a conviction that everyone is better off focusing on specific outcomes rather than how each party got there. In the endless debate among family mediators as to whether and when private caucus sessions are appropriate, you should consider whether this particular dynamic calls out for them. Opening the Books Small business bookkeeping is not always the most accurate. Owners rarely keep their books in strict accordance with Generally Accepted Accounting Principles. If outside parties start to delve into them to do a valuation or to figure out how much cash flow is available to pay child support, there may well be unwelcome surprises such as cash unaccounted for, personal expenses charged to the business (including some that reveal infidelity) or games to make the value seem lower. Sometimes, allegations of fraud, conversion or breach of fiduciary duty come out, especially if any third party partners are tempted to take sides. Fears and suspicions about accounting are very Continued on next page
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27 common weapons in the war between separating spouses. No Guaranty Corporations, limited liability companies and limited partnerships are limited liability entities. As a matter of law, the debts of the business are not the debts of the owners. Sometimes, though, a couple intertwines their personal and business assets, adding an extra layer to the usual debt-splitting discussions. The discussion may get even more complicated. Banks often insist that small business owners personally guaranty loans made to the business, which becomes an issue if one member of the separating couple is not staying with the business. The departing member might reasonably ask, “Why should I be on the hook for what that one is doing when I don’t even own a part of the company any more?” The answer is that the bank may not care. While the loan officer may be personally sympathetic, most institutions are not interested in reducing their security. If a new partner buys out the departing one, then the bank may accept a guaranty by the new partner. If not, there may be a need to refinance, possibly at a higher interest rate. If refinancing is not possible, the departing member may ask for a quid pro quo to balance the risk of the continuing guaranty or just have to accept it. Who is Not In the Room? In every negotiation, the mediator has to deal with the people who are not there. They may be parents, peers, aunts and uncles who assist in childcare or someone who provided a gift. With a more complicated
asset like a business, the cast of absent characters can include employees, other family members who are part-owners, parents or grandparents who founded the business, children who hope to inherit the business, major suppliers or customers, influential advisors or people who provided lifeline financing. The mediator should explore who these people are and decide whether and how it makes sense to bring them into the process. It’s Not Worth That Much vs. It’s Worth Way More Than That If one of the partners will be buying out the other as part of a settlement, there is an inherent conflict over the price. One party may feel an extra sense of entitlement if a gift or inheritance were involved in purchasing or capitalizing the business. The courts would probably expect a business valuation using one of a handful of accepted methodologies. However, many will argue that all a business valuation professional can do is give guidance as to what a third party might pay. Sometimes the people running the business think that number is too high or too low, depending on how they project cash flow and the time period they are looking to for return on their investment. The economic cycle dictates valuation, too. At the time of this writing, valuations are down from what many people would expect. And then there is the emotional factor. People set values in their mind and dig in their heels when a spouse or even a third party tries to convince them otherwise. Sometimes the parties themselves have a hard time distinguishing bluffing from a truly deep belief.
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28 Shutting the Doors Family businesses do close down over divorce issues. There may not be enough cash for a buyout, or not enough talented personnel without both parties staying involved, or not enough income for the spouse who would remain with the business to make support payments. Orderly winding up is an option. So is bankruptcy. Forced judicial sale may be, too, depending on the statutory regime. These options belong on the mediator’s flip chart. They are distasteful and frightening precisely because they may be realistic. PRACTICE TIPS Mediators tend to collect techniques, the way other people collect stamps, or sports memorabilia, or cats. Armed with the foreknowledge of what we might expect when we walk into a family conflict over separating a business, how should we approach it? Beyond the usual normalizing of the confusion that goes along with the situation, the mediator might consider going beyond a purely facilitative process. That kind of process can work, but adding in other elements may make it more helpful. Parties often look to the mediator to be a more active participant in helping them generate options, so some knowledge of common small business practices is useful. Techniques borrowed from commercial mediation have a place to get clients past particularly sticky spots
if their relationship is so damaged they slip into hardball positional negotiating, but the mediator should always be aware of the potential for poison in feelings of unfair compromise. The mediator might even consider drawing on the narrative mediation lexicon, since many of these potential issues can also be parts of a conflict story. The number of possible legal, business and emotional issues means that there is almost always too much to resolve in a single mediation session. The mediator should manage the parties’ impatience and expectations: clients should understand up front that it takes time to gather and evaluate all the facts and then make difficult choices. Parties should also anticipate “homework” between sessions relating to business operations, valuation or third party advisors. Separating a family business can be a divorce within the divorce. The issues are often tied to personal self-worth and interwoven with every other aspect of the parties’ lives, and third parties often play a big role. As a result, the decisions can be some of the most difficult in the whole separation process. These cases call on the effective mediator to be especially patient, persistent and creative. Jeffrey Fink is a mediator and attorney in Wellesley. He can be reached at (781) 237-0338 or jfink@jfinklawadr.com.
“Of all the animals, man is the only one that lies.” Mark Twain
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MASSACHUSETTS FAMILY LAW: A Periodic Review By Jonathan E. Fields
Is Income Equalization Dead? The Probate Court equalized the incomes of two parents with a child support order. On the father’s appeal, the Appeals Court affirmed. On further appellate review, the SJC vacated the support award, holding that “income equalization is inconsistent with principles that inform child support orders in the Commonwealth.” Such orders, said the SJC, should not be used to “equalize living standards in the parental households.” An award must be based on the child's “reasonable support needs.” The award must avoid a “gross disparity” of standard of living, “while eschewing equalization.” (Emphasis supplied.) Moreover, the SJC, citing with approval the ALI Principles of Family Dissolution, noted another rationale against equalization. Equalizing income “between the higher-income and lowerincome parent would invade the higherincome parent's reasonable interest in benefiting from the fruits of his or her labor, because such attempts would impose all the economic costs of family dissolution on the [higher-income] parent, while holding the parent with lower income harmless from such costs.” [Quotation from SJC and ALI condensed into one quote.] Finally, the answer to the caption question — it’s not dead for mediated agreements. If the parties decide that income equalization is fair for them and their family, a judge is likely to approve it. M.C. v. T.K., 463 Mass. 226 (August 15, 2012).
Husband Receives No Part of Wife’s $12,000,000 Inheritance The Appeals Court upheld a Probate judgment in which the judge did not award husband any part of the wife’s $12,000,000 inherited interest in various trusts. The decision does not indicate the precise extent of the marital estate but infers that the wife was left with substantially greater assets than the husband. The parties lived a modest, middle-class lifestyle, not using the inherited assets. Further, since neither party knew the size of the wife’s inheritance, the Probate judge assumed that they did not rely on “the eventual receipt of those monies to support their lifestyle.” Also relevant: the judge found the husband’s contribution to the marital estate limited; that the parties’ maintained separate assets; filed separate tax returns; used their own assets without input from the other. Merrill v. Johnson, 82 Mass.App.Ct. 1113 (September 19, 2012) (Unpublished). Fleshing Out Best Interest Standard A recent SJC opinion made headlines by finding that a California registered domestic partnership was equivalent to a marriage, and that the biological mother and her “partner” were both parents to the child born during their partnership through in vitro fertilization. The case also contains an excellent review of the standards of primary physical custody – which fleshes out somewhat the amorphous “best interests” standard. In assessing best interests, the SJC reminds
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30 us, GL c.208, s.31 requires a court to consider “whether or not the child’s present or past living conditions adversely affect his physical, mental, moral or emotional health.” The judge also must also consider, among other things, the relative stability of the homes; whether one parent seeks to undermine the relationship a child has with another parent; and a parent’s ability to subordinate his/her needs to those of the children. Again, it’s nothing new, but a convenient reminder that there’s more to the standard than “best interests.” Hunter v. Rose, 2012 Mass. LEXIS 889 (September 28, 2012). Appeals Court Overturns Joint Legal Custody Award It’s not often that the Appeals Court overturns a Probate Court judgment of joint legal custody, which is why this case caught my attention. The Probate judge acknowledged that there was great conflict between the parties but found they “were not totally incapable of maintaining a cooperative relationship.” The conflict, according to the judge, was primarily as a result of poor communication “as between husband and wife” and not regarding the upbringing of the children. Elsewhere in the judgment, the judge stated s/he was “hopeful” that once the divorce was final, the parties would “slowly develop
a relationship as responsible parents with a goal toward communication between them and in the best interests of the children.” Upon the mother’s appeal, the appellate court reversed, noting that the judge’s findings did not support the judgment – particularly the finding that the parties disagree about the health treatment of the children. The children, according to the judge’s findings, had “substantial medical issues” and the husband “has a fear of doctors and medical facilities.” Critically, the father continuously disagreed with the recommended medical treatment of the children. Another example: despite his daughter’s severe dog allergies, and over the objection of his daughter’s doctor, he allowed a live-in girlfriend to keep a dog in his home when the children visited. Considering these findings, the Appeals Court found that the Probate Judge’s award of joint legal custody was an “abuse of discretion” and reversed. T.D. v. D.D., 2012 Mass.App.Unpub. LEXIS 1022 (October 1, 2012) (Unpublished). Jonathan E. Fields, Esq. is a partner at Fields and Dennis, LLP in Wellesley. Jon can be contacted at 781-489-6776, or at jfields@fieldsdennis.com
“Marriage is the perfection of what love aimed at, ignorant of what it sought.” Emerson
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WHAT’S NEWS? National & International Family News
Chronologically Compiled & Edited by Les Wallerstein Foreclosures Surge for Elderly Americans An AARP report based on nationwide loan data that covered a fiveyear span found that one and a half million Americans over the age of 50 lost their houses to foreclosure between 2007 and 2011. Of those, the highest foreclosure rate was for homeowners over 75. While people under 50 are the group most likely to face foreclosure, the risk of “serious delinquency” on mortgages has grown fastest for people over 50. Older Americans are losing their homes because of pension cuts, rising medical costs, shrinking stock portfolios and falling property values. Half of households whose head is between 65 and 74 have no money in retirement accounts. (Robbie Brown, N.Y. Times, 7/19/2012) Over 10,000 NY Couples were Given Licenses in the First Year of Gay Marriage More than 10,000 gay and lesbian couples were issued marriage licenses in New York State in the year since same-sex marriage was legalized. The mayor of NYC announced that at least 7,184 same-sex couples had been issued licenses in New York City since July 24, 2011, when the state’s Marriage Equality Act took effect. In the rest of the state, as of July 16, at least 3,424 samesex couples had received licenses, according to the State Health Department. The actual numbers, though, are probably higher, since people are not required to report their sex on marriage
license applications. (Kate Taylor, N.Y. Times, 7/25/2012) Federal Student Debt and Debt Collection Soars As the number of people taking out US government-backed student loans has exploded, so has the number who have fallen at least 12 months behind in making payments — about 5.9 million people nationwide, up about a third in the last five years. The amount of defaulted loans — $76 billion — is greater than the yearly tuition bill for all students at public two- and fouryear colleges and universities, according to a survey of state education officials. To get the money back, the Department of Education last fiscal year paid more than $1.4 billion to collection agencies and other groups to hunt down defaulters. Over all, the government recoups about 80 cents for every dollar that goes into default—an astounding rate, considering most lenders are lucky to recover 20 cents on the dollar on defaulted credit cards. There is no statute of limitations on collecting federally guaranteed student loans, unlike credit cards and mortgages, and Congress has made it difficult for borrowers to wipe out the debt through bankruptcy. (Andrew Martin, New York Times, 9/9/2012) Pakistanis Risk Death to Marry by Choice Though some form of arranged marriage remains the most common way for Pakistanis to find spouses, marriage without the consent of a woman’s
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32 guardian was legalized in 2003, creating “free-will” marriages. The change in the law has created a larger opening for many women to claim their independence. Parents however can press kidnapping charges to regain control of a renegade daughter. Such cases can engulf entire families, as the police will often seize property and detain relatives of the accused man, and can end in so-called “honor-killings.” These killings are a constant threat for women who enter into freewill marriages. The women are considered dishonorable, and become the targets of male relatives looking to restore family prestige. Their husbands can also be targets. Even when such cases are investigated, the killers often escape prison sentences. Under Islamic criminal law, which applies to murder cases in Pakistan, victims’ heirs or family members are entitled to pardon a perpetrator in exchange for monetary compensation. Since most honor-killings are committed by close relatives, there is often pressure to forgive the perpetrator, who then goes free. In its 2011 annual report, the Human Rights Commission of Pakistan, an independent organization, found that according to news and field reports, at least 943 women were victims of so-called honor killings that year, 219 of them because they wanted to choose a spouse. (Meghan Davidson Ladly, New York Times, 9/9/2012) Relationships are The Key to Healthy Aging You die alone, philosophers say. But you could die sooner if you live your life in loneliness. Close connections to friends and family may ward off poor health and premature death, recent
research suggests. Loneliness is a risk factor for functional decline and early death in adults over age 60, according to a University of California. Other studies have found that over time chronic loneliness is associated with high blood pressure, coronary heart disease, a diminished immune response, depression, sleep difficulties, cognitive decline and dementia. So far, researchers do not understand how loneliness harms health and accelerates aging, said Louise C. Hawkley, a psychologist at the University of Chicago. The research comes at a time when one-third of Americans ages 45 to 63 are single, a 50 percent increase since 1980. Divorce among midlife and older couples is also rising, with one in four adults over age 50 splitting up, threatening connections to friends and extended family. Relocation, illness and retirement are common events in later life requiring a conscious effort to rebuild a social network, said Dr. George E. Vaillant, a professor and psychiatrist at Harvard Medical School. (Elizabeth H. Pope, New York Times, 9/12/2012) U.S. Income Gap Widens The income gap between the wealthiest 20 percent of American households and the rest of the country grew sharply in 2011, the Census Bureau reported, as an overwhelming majority of Americans saw no gains from a weak economic recovery in its second full year. Income for the top fifth of American households rose by 1.6 percent last year, driven by even larger increases for the top 5 percent of households, said David Johnson, the Census Bureau official who presented the findings. All households in the middle of the scale saw Continued on next page
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33 declines, while those at the very bottom stagnated. The numbers helped drive an overall decline in income for the typical American family. Median household income after inflation fell to $50,054, a level that was 8 percent lower than in 2007, the year before the recession took hold. (Sabrina Tavernise, New York Times, 9/13/2012) Staggering Number of Children’s Deaths Worldwide Decline in 2011 Fewer than seven million children around the world died before their fifth birthday from disease and birth complications in 2011 — a new low — the World Health Organization, the United Nations Children’s Fund and other agencies announced. About 12 million children that age died in 1990, and the number fell below 10 million for the first time in 2007, so the pace of saving children’s lives is accelerating, experts said. Half of all the deaths occurred in five countries: India, Nigeria, the Democratic Republic of Congo, Pakistan and China. The leading causes, in descending order, were pneumonia, premature birth, diarrhea, birth complications and malaria. Most of those deaths were preventable with relatively cheap interventions, the United
Nations agencies said. (Donald G. McNeil Jr., New York Times, 9/13/2012) New York City Votes to Regulate Jewish, Ritual Circumcision The New York City Board of Health has passed a regulation that will require consent from parents before an infant can have a form of Jewish ritual circumcision, prevalent in parts of the ultra-Orthodox community, in which the circumciser uses his mouth to remove blood from the incision. Infectious disease experts widely agree that the oral contact creates a risk of transmission of herpes that can be deadly to infants, because of their underdeveloped immune systems. Between 2004 and 2011, the city learned of 11 herpes infections it said were most likely caused by the practice. Two of those babies died; at least two others suffered brain damage. (Sharon Otterman, New York Times, 9/14/2012)
Les Wallerstein is a family mediator and collaborative lawyer in Lexington. He can be contacted at (781) 862-1099, or at wallerstein@socialaw.com
“Anyone who has never made a mistake has never tried anything new.” Albert Einstein
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Benjamin D. Garber, Ph.D. is a New Hampshire licensed psychologist, certified Guardian ad Litem and Parent Coordinator. He is a nationally renowned speaker, researcher and an award winning freelance journalist, writing in the areas of child and family development, as well as an accomplished cartoonist. Ben can be contacted at papaben@healthyparent.com Fall 2012 â&#x20AC;˘ Vol. 11 No. 4
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MCFM NEWS MCFM’S NEXT FREE PROFESSIONAL DEVELOPMENT WORKSHOP SHARING THE PIE ESTATE PLANNING CONFLICTS & RECIPES FOR RESOLUTION Presented by Jeffrey A. Bloom, Esq. and Crystal Thorpe, MSW, MBA Wednesday, December 12, 2012 WELLESLEY PUBLIC LIBRARY 530 Washington Street, Wellesley, MA Wakelin Room, 2PM – 4PM Come learn to help your clients prevent and resolve adult family conflicts regarding estates and estate planning. Jeffrey A. Bloom, Esq., will provide an update on the Massachusetts Uniform Probate Code and will share an estate planning attorney’s perspective. Crystal Thorpe, MSW, MBA, will share Mediation case examples, along with tips and tools for working with multiple parties and building consensus. Jeffrey A. Bloom, Esq. is a partner at Margolis & Bloom, LLP. His practice focuses exclusively on counseling and advocating for clients regarding asset protection, estate planning, elder and disability law, guardianship, probate administration and litigation, and planning for those with special needs. Since 2008 he has been named a Super Lawyer by Boston Magazine each year. He is author of West Publishing's first professional treatise on elder law for its widely utilized Massachusetts Practice Series, titled “Elder Law”, and has authored numerous articles on elder and disability law. Crystal Thorpe is a mediator and founding partner of Elder Decisions®, a division of Agreement Resources, LLC. She mediates disputes among family members about eldercare, communication, caregiving, and trust and estate issues; and she facilitates retreats for families eager to have successful proactive conversations. Crystal trains mediators from around the world in the growing field of Elder (Adult Family) Mediation. She and her colleagues co-authored the book Mom Always Liked You Best: A Guide for Resolving Family Feuds, Inheritance Battles & Eldercare Crises. PLEASE REGISTER IN ADVANCE AT WWW.MCFM.ORG
ATTENDANCE AT MCFM PROFESSIONAL DEVELOPMENT WORKSHOPS QUALIFIES FOR CREDIT EARNED TOWARDS BECOMING AN MCFM CERTIFIED MEDIATOR CONTACT TRACY FISCHER FOR CERTIFICATION DETAILS tracy@tracyfischermediation.com Family Mediation Quarterly
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MEDIATION PEER GROUP MEETINGS Central Massachusetts Mediators Group: We serve mediators in Central Mass and towns along Rt. 2 West of Rt. 128. We meet to discuss topics and/or cases, sometimes with guest speakers, in the offices of Interpeople Inc. in Littleton. Interpeople is located about 1/2 a mile off Rt. 495, at Exit 31. Meetings begin at 8:30 AM on the last Thursday of every month, except December, July and August. If you are a family and divorce mediator — attorney or non-attorney — you are welcome to join us. New members are asked to please call ahead of time: 978-486-3338, or email Shuneet at drthomson@interpeople-inc.com. North Suburban Mediators Group: Join fellow mediators meeting to learn and share and network. Meetings are held at 8:30 a.m. on the second Tuesday of the month from January to June and from September to November at the offices of Lynda Robbins and Susan DeMatteo, 34 Salem Street, Suite 202, Reading. Please call Lynda at 781-9440156 for information and directions. All MCFM members are welcome. Pioneer-Valley Mediators Group: This Western Mass group will be meeting monthly in December on the first Wednesday of every month at the end of the day, from 4 to 6 pm or 6 to 8 pm (depending on the interest) in Northampton at a location to be announced. Please email Kathy Townsend for further information at Kathleen@divmedgroup.com. Mediators in Search of a Group? As mediators we almost always work alone with our clients. Peer supervision offers mediators an opportunity to share their experiences of that process, and to learn from each other in a relaxed, safe setting. Most MCFM directors are members of peer supervision groups. All it takes to start a new group is the interest of a few, like-minded mediators and a willingness to get together on a semiregular, informal basis. In the hope of promoting peer supervision groups a board member will volunteer to help facilitate your initial meetings. Please contact Kathy Townsend <Kathleen@divmedgroup.com> who will coordinate this outreach, and put mediators in touch with like-minded mediators.
OFFER MCFM BROCHURES IN YOUR WAITING ROOM Copies of MCFM’s NEW brochure are available for members only. Brochure costs are: [1-20 @ 50¢ each, 21-50 @ 40¢ each & 51+ @ 30¢ each] plus shipping, (unless you pre-arrange to pick them up at a professional development meeting or other MCFM event). A blank area on the back is provided for members to personalize their brochures, or to address for mailing. Remember: when you buy 21 or more brochures the “per copy” price is less than the cost to print!
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Fall 2012 • Vol. 11 No. 4
37 TO OBTAIN COPIES MEMBERS MAY call Ramona Goutiere: 781-449-4430 or email: masscouncil@mcfm.org
AN INVITATION FOR MCFM MEMBERS ONLY All MCFM members are invited to fill out the Member Profile Questionnaire posted on the MEMBERS ONLY page of mcfm.org and submit it for publication in the FMQ. Please email your questionnaire with a personal photo (head shot) and an optional photo of your primary mediation space (or office) to wallerstein@socialaw.com. Since the questionnaire is intended to help others learn about you, feel free to customize it by omitting questions listed, or adding questions you prefer. Only questions answered will be published, and all submissions may be edited for clarity and length. Please help us get to know you.
CLASSIC MCFM “T” SHIRTS Equal blends of cotton & polyester Choose black or cream CAN’T DECIDE? ORDER ONE OF EACH! All lettering & graphics are green SIZES AVAILABLE: S, M, L, & XL SUPPLIES ARE LIMITED Cost $10 each plus S&H* *S&H: $3 for 1 shirt, $4 for 2, $5 for 3, etc… Make checks payable to MCFM, Inc. SEND YOUR CHECK & ORDER TO: Ramona Goutiere P.O. Box 59 Ashland, NH 03217-0059 QUESTIONS? CALL: 781-449-4430 Continued on next page Family Mediation Quarterly
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HELP BUILD AN ARCHIVE! In the spring of 2006, MCFM entered into an agreement with the Department of Dispute Resolution at the University of Massachusetts to create an archive of Massachusetts family-related mediation materials. The two key goals are to preserve our history and make it available for research purposes. We're looking for anything and everything related to family mediation in Massachusetts — both originals and copies — including: meeting agendas and minutes, budgets, treasurer's reports, committee reports, correspondence, publications, fliers, posters, photographs, advertisements and announcements. We need your help to maximize this opportunity to preserve the history of mediation in Massachusetts. Please rummage through your office files, attics, basements and garages. If you discover materials that you are willing to donate please contact Les Wallerstein at wallerstein@socialaw.com.
“Strike an average between what a woman thinks of her husband a month before she marries him and what she thinks of him a year afterward, and you will have the truth about him.” H. L. Mencken Fall 2012 • Vol. 11 No. 4
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ANNOUNCEMENTS All mediators and friends of mediation are invited to submit announcements of interest to the mediation community to wallerstein@socialaw.com, for free publication.
THE DIVORCE CENTER PRESENTS THE NEW ALIMONY LAW: A PRIMER FOR THE PUBLIC ON THE ALIMONY REFORM ACT OF 2011 November 7, 2012 from 7:00 to 9:00 p.m. Weston Public Library, Community Room
David L. Rubin, Esq., and Theresa B. Ramos, Esq., attorneys practicing divorce and family law, will speak on the numerous changes made to the Massachusetts Alimony Law with the Massachusetts Alimony Reform Act of 2011. Cost: Free, but a $20 donation is welcome Please register in advance at www.thedivorcecenter.org
COMMUNITY DISPUTE SETTLEMENT CENTER FALL 2012 BASIC MEDIATION TRAINING This 33-hour training is for you if you are interested in making a shift in your professional role or incorporating new skills into your current work. This 33-hour training provides hands-on skill development, combining roleplays, exercises and presentations. It meets the statutory requirements for mediator confidentiality related to the Massachusetts General Laws, Chapter 233, Section 23C and can be the first step toward certification under Rule 8: SJC Rules on Dispute Resolution. Thursday, November 1st @ 9:30am–5pm Friday, November 2nd @ 9:30am–5pm
Family Mediation Quarterly
40 Monday, November 5th @ 4:30pm–7:30pm Thursday, November 8th @ 9:00am–4:30pm* Friday, November 9th @ 9:30am–5pm * note earlier start/finish Where: CDSC, 60 Gore Street, East Cambridge, Massachusetts (near Lechmere T, Galleria, courthouses). Cost: $695) ENROLL EARLY! Limited to 24. On-site training available for groups of 10 or more. For more info, contact CDSC: Tel. 617-876-5376 • Fax: 617-876-6663 E-mail: cdscinfo@communitydispute.org
CHILDREN’S OPTIMAL POST-SEPARATION ADJUSTMENT Jane Appell, Ph.D.
Donna Feinberg, LICSW Peggie Ward, Ph.D.
Program Description Children’s Optimal Post-Separation Adjustment is a program for families embroiled in high conflict post-separation dynamics in which children’s loyalties are polarized. The program spans 10 weeks. Parents will participate in 9 weekly psychoeducational parent group sessions. Children will participate in 5 child group sessions to occur every other week. Each family will participate in 1 family meeting (composition to be determined by program leaders). Group information: Each parent group will be composed of up to 8 participants, each of whom is one half of a co-parent pair. Co-parents will participate in different groups of 2 ? hours for 9 weeks. Parent groups will be led by either Dr. Peggie Ward or Dr. Jane Appell and will occur on Monday or Tuesday evening beginning at either 6 PM or 7:00 PM (depending on specific group). Children’s groups will be led by Donna Feinberg, LICSW. These groups will occur on Saturdays, with the youngest age participants ranging from 7 to 9 depending on group composition. Groups will run tentatively 8:30–10 AM (younger) and 10:30–noon (older). All groups will take place in Natick, Massachusetts. Group curricula are based on a psycho-educational approach that incorporates multimedia input, didactic and experiential lessons (role plays, demonstrations, scenarios from family situations), use of pictures and/or photographs of family experiences (e.g., holiday celebrations, birthdays), and the use of crafts for children. Continued on next page Fall 2012 • Vol. 11 No. 4
41 The cost is $2,450 per family. Program to begin in mid to late October, 2012 For further information contact Dr. Peggie Ward at 508-655-1775, #1 or Dr. Jane Appell at 978-358-7550, #307
Elder Decisions - A Division of Agreement Resources, LLC Presents ADVANCED ELDER /ADULT FAMILY MEDIATION TRAINING February 12-14, 2013 The Walker Center, 171 Grove Street, Newton
Lead Trainers: Arline Kardasis, Rikk Larsen, Crystal Thorpe and Blair Trippe â&#x20AC;&#x153;This training was an unmitigated success for the organisers and I could not praise their work enough, from choosing their topics to their choice of presenters, this was indeed a formidable and professional effort that they can rightly be very proud of. I will certainly be looking to attend another of their events.â&#x20AC;? David Bogan, International Mediation Services, Auckland, New Zealand For detailed information and registration: http://www.elderdecisions.com/pg19.cfm or call: 617-621-7009, or email: training@ElderDecisions.com $100 DISCOUNT FOR MCFM MEMBERS
THE DIVORCE RECOVERY SERIES Led by Mary Vanderveer, M. Ed., LCSW
The Divorce Recovery Series is an outreach program of The First Congregational Church in Norwood, offered as a community service. Groups are ongoing and continue throughout the year. All participants are welcome, regardless of religious affiliation. Divorce Recovery is a support group for those who are separated, considering divorce, or divorced. It offers support and healing to people experiencing the pain of separation and divorce. Group members gain knowledge regarding the emotional stages of divorce and how to cope with lifestyle changes. Each session includes discussion and presentation of topics such as denial and bargaining, anger, depression, acceptance, Family Mediation Quarterly
42 forgiveness, alone without loneliness, letting go, spirituality in one’s life, and creating a new lifestyle. The cost is $90 for eight consecutive weekly sessions. Moving Ahead is a support group for those who have completed Divorce Recovery that addresses the needs of people who are rebuilding their lives after divorce. As a person’s self-esteem takes a toll when experiencing divorce, the focus is to support people in creating a new and positive lifestyle. Topics include affirming and validating ourselves, self-acceptance, taking responsibility, changing negative thinking, reconnecting and developing spirituality, developing support systems, setting limits and boundaries. The cost is $90 for eight consecutive weekly sessions. FOR MORE INFORMATION VISIT: http://firstcongregational-norwood.com TO REGISTER: call 781-762-3320, or email: firstcongo.norwood@verizon.net
NEW BEGINNINGS An interfaith support group for separated, divorced, widowed and single adults in the Greater Boston Area. Meets year-round, every Thursday, from 7:00 to 9:00 PM, at Wellesley Hills Congregational Church, 207 Washington Street. For more information call 781-235-8612. Annual Dues $50. For program details & schedule visit www.newbeginnings.org
THE CHILD & FAMILY WEBGUIDE ONLINE ACCESS TO CHILD DEVELOPMENT INFORMATION The Child & Family WebGuide was created in April 2001 by Professor Fred Rothbaum and Dr. Nancy Martland of the Tufts University Eliot-Pearson Department of Child Development. The WebGuide describes trustworthy websites on topics of interest to parents and professionals that have been systematically evaluated by graduate students and faculty in child development. The WebGuide is easily searched by subject, including many of constant concern to family mediators, e.g., divorce, separation and stepparents. It also offers several features requested by parents, e.g., ‘ask an expert’ sites and ‘research news’ sites. The goal of the WebGuide is to give the public easy access to the best child development information on the Web. www.cfw.tufts.edu Continued on next page Fall 2012 • Vol. 11 No. 4
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THE FMQ WANTS YOU! The Family Mediation Quarterly is always open to submissions, especially from new authors. Every mediator has stories to tell and skills to share. To submit articles or discuss proposed article call Les Wallerstein (781) 862-1099 or email wallerstein@socialaw.com NOW’S THE TIME TO SHARE YOUR STORY!
“Marriage is an alliance entered into by a man who can’t sleep with the window shut, and a woman who can’t sleep with the window open.” George Bernard Shaw
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44 Presidents page continued from inside cover
Mrs. Einstein agreed. A sort of post-nuptial agreement. Two months later, she moved with the children to Zurich – leaving Albert in Berlin. They were separated 5 years – before they finally divorced in 1919. Maybe Mrs. Einstein would have left anyway – but the agreement (unless it reads better in German) certainly didn’t help. This all left me to wonder, would a mediator – would John Fiske – have been able to help this couple? I’d like to think so. John would have made sure that both voices were heard and reflected in the agreement. John’s agreement would have been more sensitively written and, presumably, not quite as tone-deaf. John would have reframed some of Albert’s harsher complaints. Maybe John might have even gotten the Einsteins to start listening better to each other and communicating better with each other. Reflecting on this, it seems to me that Einstein, dealing with marital problems 100 years ago in Berlin, isn’t that different from some of our clients today. And his behavior underscored for me some universal human truths that we see all the time as mediators: Intelligence doesn’t correlate with emotional intelligence. People in crisis don’t always act rationally. We’ve all seen emails clients write to their spouses. I’m not sure Einstein’s list is any worse than some of those. The natural human response to marital conflict 100 years ago, today, and the future – may be fundamentally the same – within a broad range. I don’t know. What I do know is that family mediation has evolved as a way to manage the emotions and the conflict in a constructive and positive way. It will continue to do so in the future for at least one important reason – it works. Studies over the last several years are conclusive about the positive effects on children when their parents have mediated. And with each success, mediation becomes more and more popular. Soon enough, I’m sure, more people will be mediating than litigating. And – though we weren’t there for the Einsteins – if they need us, I’d like to think that we’ll be there for their great-great-great grandchildren. Continued on next page Fall 2012 • Vol. 11 No. 4
45 HAPPY BIRTHDAY MCFM! May the next 30 years be as fruitful as the first 30. I look forward to seeing many of you at the upcoming MCFM Institute on November 16.
jfields@fieldsdennis.com
â&#x20AC;&#x153;When two people are under the influence of the most violent, most insane, most delusive, and most transient of passions, they are required to swear that they will remain in that excited, abnormal, and exhausting condition continuously until death do them part.â&#x20AC;? George Bernard Shaw Family Mediation Quarterly
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JOIN US MEMBERSHIP
MCFM membership is open to all practitioners and friends of family mediation. MCFM invites guest speakers to present topics of interest at four, free, professional development meetings annually. These educational meetings often satisfy certification requirements. Members are encouraged to bring guests. MCFM members also receive the Family Mediation Quarterly and are welcome to serve on any MCFM Committee. Annual membership dues are $90, or $50 for fulltime students. Please direct all membership inquiries to Ramona Goutiere at masscouncil@mcfm.org.
REFERRAL DIRECTORY
Every MCFM member with an active mediation practice who adheres to the Practice Standards for mediators in Massachusetts is eligible to be listed in MCFM’s 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 most current directory is always available online at www.mcfm.org. The annual Referral Directory listing fee is $60. Please direct all referral directory inquiries to Rebecca J. Gagné at rebecca@gagneatlaw.com.
PRACTICE STANDARDS
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. MCFM’s Practice Standards are available online at www.mcfm.org.
CERTIFICATION & RECERTIFICATION
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. MCFM’s certification & recertification requirements are available online at www.mcfm.org. Every MCFM certified mediator is designated as such in the Referral Directory. Certified mediators must have malpractice insurance, and certification must be renewed every two years. Only certified mediators are eligible to receive referrals from the Massachusetts Probate & Family Court through MCFM. Certification applications cost $150 and re-certification applications cost $50. For more information contact S. Tracy Fischer at tracy@tracyfischermediation.com. For certification or re-certification applications contact Ramona Goutiere at masscouncil@mcfm.org. Fall 2012 • Vol. 11 No. 4
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DIRECTORATE MASSACHUSETTS COUNCIL ON FAMILY MEDIATION, INC. P.O. Box 59, Ashland, NH 03217-0059 Local Telephone & Fax: 781-449-4430 email: masscouncil@mcfm.org
www.mcfm.org OFFICERS President
Vice-President Vice-President Vice-President Clerk Treasurer Past President DIRECTORS
DIRECTORS EMERITUS
Jonathan E. Fields, Fields & Dennis, LLP, 20 William Street, Suite 165, Wellesley, MA 02481, 781-489-6776, jfields@fieldsdennis.com Laurie S. Udell, 399 Chestnut Street, 2nd Floor Needham, MA 02492, 781-449-3355, lsudellesq@aol.com Kate Fanger, Kate Fanger Mediation, 21 Properzi Way, Suite G, Somerville, MA 02143, 617-599-6412, KF@katefangermediation.com Barbara Kellman, 1244 Boylston Street, Suite 200, Chestnut Hill, MA 02467, 617-232-8080, barbara@kellmanlegal.com Tanya Gurevich, Ginsburg & Leshin, LLP, One Hollis Street, Wellesley, MA 02482, 781-235-3332, gurevich@glmediation.com Kathleen A. Townsend, Divorce Mediation Group, Inc., 1441 Main Street, Springfield, MA 01103, 413-733-4444, kathleen@divmedgroup.com Lynn K. Cooper, 262 Kenrick Street, Newton, MA 02458 617-527-3152, lynn@lynnkcooper.com S. Tracy Fisher, Rebecca J. GagnĂŠ, David Kellem, William C. Leonard, Steven Nisenbaum, Vicki Shemin, Diane W. Spears, Crystal Thorpe, Les Wallerstein, Marion Lee Wasserman & Fran L. Whyman John A. Fiske, Janet B. Weinberger, Jerome Weinstein & Barbara N. White
ADMINISTRATOR Ramona Goutiere, Goutiere Professional Business Services, P.O. Box 59, Ashland, NH 03217-0059, 781-449-4430, masscouncil@mcfm.org Family Mediation Quarterly
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EDITORâ&#x20AC;&#x2122;S NOTICE MCFM
Family Mediation Quarterly Les Wallerstein, Editor 1620 Massachusetts Avenue Lexington, MA 02420 (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 affect 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 and emailed to all MCFM members. The FMQ is mailed 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 online 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 2012 â&#x20AC;˘ Vol. 11 No. 4
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