MCFM
FAMILY MEDIATION QUARTERLY Vol. 11 No. 3
Summer 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 Dear Mediators: I am so honored that you, my peers, have elected me President and hope that, over the next two years, I prove worthy of the choice. For those of you who don’t know me, I have been practicing law for 21 years and the last 16 have been in the family law area. Mediation represents about 40% of my practice and the rest is traditional representation and Collaborative Law. I still go to court and, for the most part, actually enjoy it. I also do a lot of prenuptial work and, because the subject is particularly compelling to me, I have researched and written about it extensively. Additionally, I have worked as a neutral for many years in different capacities: as a Board of Bar Overseers Hearing Panel member, as a Massachusetts Bar Association Fee Arbitration Panel member, and a conciliator with the Middlesex County Bar Association. Mediation compliments my practice and has made my professional life much more satisfying. The epiphany is familiar to many of you, I’m sure. The last seven years have been particularly rewarding for me – that’s when I came on MCFM’s Board as the Clerk. During this time, I have come to know many of you quite well and hope to meet more of you in the near future. The year ahead should be a particularly exciting one for MCFM: Our 30th birthday is coming up and we are celebrating it on September 13 at the Endicott House in Dedham. Tickets will be $50.00 for members. We are considering hiring a strategic planning advisor who may assist us with developing a mission statement and/or helping us identify some long and shortterm organizational goals. An added bonus for MCFM – the services will be pro bono. John Fiske and Steve Nisenbaum are already hard at work on their successful and engaging Professional Development workshops. So watch your inboxes for further information on that. These meetings have been at capacity for the last few years and we hope to see even more of you there in the next year. Please feel free to contact me should you have any questions, comments, or concerns. I look forward to a promising year. Yours,
jfields@fieldsdennis.com Family Mediation Quarterly
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PREGLIMONY By Shari Motro
CONTENTS
JOHN AND MARY: Sharing Parenting After Divorce By John M. Haynes JOHN MICHAEL HAYNES: An Obituary By Thelma Fisher
A QUESTION OF PRIVILEGE: An Email Exchange
AN IMPROMPTU POEM By John Fiske
WHEN A SPOUSE DIES DURING THE NISI PERIOD By Shuneet Thomson NATIONAL MEDIATORS SOCIETY By Dave Coverly
AN ADR CONSUMERS’ BILL OF RIGHTS By William M. Levine & E. Chouteau Levine
THE BOTT CASE: Mediation, Public Perception & The Unauthorized Practice of Law By Jonathan E. Fields
WHAT’S NEWS? National & International Family News Chronologically Compiled & Edited By Les Wallerstein MCFM MEDIATOR PROFILE: Helena S. Friedman 31 MCFM News 42 Join Us 35 Announcements 43 Directorate 44 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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PREGLIMONY By Shari Motro
We have alimony. We have palimony. Why don’t we have preglimony? Why don’t we recognize that when a woman gets pregnant with a man to whom she is not married, the pregnancy should be both parties’ responsibility? I’m not talking about what happens if the pregnancy ultimately produces a child. I’m talking about the pregnancy itself. Under current law, if the woman terminates, the man owes her nothing. If she takes the pregnancy to term, then only after he’s deemed the father will the man be required to reimburse her for prenatal and birthing expenses — and then only because it is considered part of his child support obligations. He’ll have no responsibility to share in other costs of pregnancy deemed “personal” to the woman — things like maternity clothes, birthing classes, or lost wages. Some men already treat the costs of pregnancy as a shared responsibility; others do not, and the law gives them a free pass. In short, until and unless paternity has been established, a pregnant woman and the man with whom she conceives are legal strangers. Preglimony is my dream for a different world, a world that recognizes that unmarried lovers who conceive are not complete strangers. They’re not spouses either. They’re something in between. Ideally the law should recognize them as such by replacing the current lovers-as-strangers paradigm with a relational default. This new default would impose certain baseline responsibilities on unmarried lovers who conceive regardless of the outcome of the pregnancy, including “preglimony” — a legal framework defining a man’s duty to help support his pregnant lover. Developing and implementing this new framework will take time and further study, but there is something simpler we can do more quickly. As a first step towards recognizing and integrating the relational paradigm we can reward and encourage preglimony through the tax code. Current law is silent on the proper tax treatment of pregnancy-related payments, but under prevailing principles they are likely to be treated as gifts and thus be neither deductible to the payor nor includible by the recipient. In other words, preglimony is a tax nothing. By contrast, alimony payments between former spouses are deductible to the payor and includible to the recipient. This means that former spouses whose incomes diverge can shift high-bracket income to a lower bracket, producing a tax benefit. Preglimony is more like alimony than a transfer between strangers, and it should be treated accordingly. Not only does extending tax benefits to pregnancy-related transfers make sense under current principles, doing so will also reward and encourage men who are prepared to support their pregnant lovers. Preglimony is a new word; it is not a new practice. It’s time the law noticed. Family Mediation Quarterly
2 To visualize the proposal, consider a man whose taxable income is $100,000 and who transfers $20,000 to his pregnant lover, whose taxable income is $60,000. Assume also, for simplicity, a rate schedule with only two brackets. Taxable income that does not exceed $80,000 is taxed at a ten percent rate, while taxable income above $80,000 is taxed at a thirty-five percent rate.
In general, transfers can be treated in one of four ways. They might: (a) be neither includible by the recipient nor deductible to the payor (as when an individual gives a gift to another individual); (b) result in taxable income to the recipient and a deduction to the payor (as when an employer compensates an employee or when a former spouse pays alimony); (c) result in taxable income to the recipient without a corresponding deduction allowance to the payor (as when an individual compensates a housekeeper, gardener, or other purveyor of personal services); or (d) produce no taxable income to the recipient and be deductible to the payor (as when an individual makes a charitable contribution). Continued on next page Summer 2012 • Vol. 11 No. 3
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Currently, preglimony is likely to be nondeductible to the payor, and excludible to the recipient as in scenario (a). My proposal would bring the treatment of preglimony in line with the current treatment of alimony, producing an income-shifting benefit.
Family Mediation Quarterly
4 The most frequent objection I hear to this idea is that it will give men a say over abortion. A woman’s right to choose is sometimes eclipsed by an abusive partner who pressures her into terminating or continuing a pregnancy against her will, and preglimony could exacerbate this dynamic. But the existence of bullies shouldn’t dictate the rules that govern all of society. In the name of protecting the most vulnerable, it sets the bar too low for the mainstream, casting lovers as strangers and pregnancy as only a woman’s problem. It’s also possible that preglimony could deter a different form of abuse by making men who pressure their partners into unprotected sex, on the assumption that the woman will terminate an unwanted pregnancy, financially liable for the potential result. At the end of the day, preglimony stands to benefit men too, especially those who want to help but are turned away. How many well-intentioned men have been dismissed with “I don’t want your money” or “You’ve done enough damage; now stay away from my daughter”? Preglimony names and in that way honors the man’s role in caring for his pregnant lover. A man and a woman who conceive are intimately connected. They are not spouses, and they may not even continue to be lovers, but they are not strangers either. We’ve known this for a long time. Preglimony provides an opportunity for the law to catch up. Shari Motro is a Professor of Law at the University of Richmond. This article is based on her Stanford Law Review article [Preglimony, 63 STAN. L. REV. 647 (2011)], available online at http://legalworkshop.org/?s=shari+motro&x=0&y=0. Shari can be contacted at smotro@richmond.edu
“When it’s a question of money, everybody is of the same religion.” Voltaire Summer 2012 • Vol. 11 No. 3
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JOHN AND MARY Sharing Parenting After Divorce By John M. Haynes
John and Mary had lived together during the late sixties, and, when she became pregnant, they married. Neither had a regular job, and both spent equal time caring for their preschool-age son, Mark. The marriage was not going well, partly because of economic stress and partly because of other relationship issues, when John’s parents called from Seattle with news or a job as all expediter on the docks. John and Mary talked it over and decided to make the move from Long Island to Seattle. John thought it was the opportunity he had been looking for, and Mary saw it as a chance to change the marriage in a new setting. John’s job on the docks meant that he worked a fifteen- to eighteen- hour shift for four days in a row. Then he had three days off. Therefore, he maintained his close relationship with Mark and continued to share equally in his nurturing. He was enjoying his new life. Mary, however, was not. She was isolated from her support network, she had no interests outside the home, and she felt increasingly oppressed in the relationship. After a year in the Northwest, she decided to return to the East. She told John that she would like to visit her folks on Long Island and take Mark with her. At the end of the first week in New York, she called John and told him she was not returning to Seattle and that she was keeping Mark with her. John was devastated. When he could not
persuade her to return, he began divorce proceedings in Washington. Mary filed similar papers in New York, and each, waited for something to happen. John called regularly and spoke to Mark on the telephone. The first legal action took place in New York, and John flew east to consult with an attorney. The case was postponed, and, at the end of one week in New York, he saw Mark each day and spent lots of time with him. On the final day of his visit, he went to say good-bye to his son. Mary was working as a waitress, and there was a mix-up with the babysitter, who thought that John was slaying in New York a few days longer. When John arrived at Mary’s house to say farewell to Mark, he discovered his son asleep with no babysitter in sight. He wrapped Mark in a blanket, took him to the car, drove to the airport, and flew back to Seattle. Once home, he left Mark with his parents while he worked and settled back into a routine of nurturing father. When Mary discovered what had happened, she was devastated but just as helpless as John had been to do anything about it. Three months later, the Seattle court set a date for a hearing, and Mary flew to Seattle to appear. While there, she visited Mark at John’s parents’ home and took him for a walk to the park. They walked through the park to her car, got into the car, drove to the airport, and flew back to New York.
Family Mediation Quarterly
6 The Seattle court held that part of the case would be held in Kings County, Washington, and part in New York. The New York court held that part of the case would be heard in Nassau County, New York, and part in Washington. Each parent felt stymied in the legal process, and each worried that he or she would lose in the other’s court. THE MEDIATION PROCESS Establishing Mediation as the Arena for Settlement Both parents, who were in New York for the court hearing, telephoned me together and gave me the background information. I listened to their story and noted that each corroborated the other’s information. They asked for an appointment, and l told them, “I will be able to see you twice for a total of four hours. The first meeting will be tomorrow, Friday afternoon, and then again on Monday afternoon. We will reach an agreement by then, or an agreement will not be possible.” I gave this schedule because I sensed that they had engaged in this conflict for more than a year, and I wanted them to understand that mediation was an arena in which to settle the case, not continue fighting. I find that conflict-habituated couples need a tight time frame and that such a schedule emphasizes that mediation is a different arena from any they might have used in the past. John and Mary agreed to the schedule. Eliminating Worst Fears I then told them, “I want you to each to think about something before you come to see me:
What would be the worst possible outcome in working with me? Don’t answer the question now, just think about it until tomorrow, and when we meet I will ask you again.” We set the time, and they arrived at the office the next day fifteen minutes early. In asking the question about the worst possible outcome, I wanted to find out what it was they feared the most. My experience in cases such as this is that couples are driven to mediation by fear: fear of the alternatives and fear that the worst possible outcome will materialize in alternative arenas (Haynes, 1984). I believe that if these fears can surface and be negotiated early in the process, then the parties can concentrate not on defending against their fears but on, solving the immediate problem.
Each parent felt stymied in the legal process, and each worried that he or she would lose in the other’s court.
Confusion Between Parenting and Spousal Roles I opened the first session by collecting the essential data and confirming the information they had provided on the telephone. As the session continued, it became clear that the couple had not separated their parenting and spousal roles. John complained that Mary did not take good care of Mark; she did not mother him enough, and he recounted the story about finding the child unattended at the house while Mary was Continued on next page
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7 at work. As I listened, I mentally substituted the name Mark for the name John and realized that John was really complaining about the lack of mothering that he received from Mary during the marriage. Mary complained about John’s overpowering character. She said that during the marriage John felt that any problem could be solved by talking about it, “as long as he does all the ‘talking.” Mary complained that Mark was beginning to grow more like his father, dominating women and thinking that, as long as he did the talking, everything
marital fights, and any movement on the parenting issue would require their becoming unstuck. Surfacing the WATNAS I then turned to the question I had raised on the telephone and asked each of them to answer the question, “What would be the worst possible outcome in working with me?” John spoke first: “I think the worst outcome is that I would lose Mark. He is my only child, and I don’t know what I would do if I lost him. The thought is unbearable.” I responded, “that would be an awful’ outcome, and one you have every right to fear. Mary, how about you?”
They asked for an appointment, and l told them, “I will be able to see you twice Mary replied. “I’ve thought about for a total of four hours. The this a lot and I think the worst possible outcome would be that I first meeting will be tomorrow, lost Mark.” Friday afternoon, and then Again, I responded, “That would again on Monday afternoon. indeed be an, awful outcome and We will reach an agreement by one you have every right to fear. then, or an agreement will not Since you both fear the same outcome, could we agree at the be possible. outset that one outcome that is not would be all right. As I listened, I realized that Mary was complaining about John’s spousal behavior, not his parenting behavior. Given that fact, I decided to see whether each could acknowledge the other’s parenting ability. No matter what I did, I was unable to get either to do so. They were stuck in the spousal roles and
acceptable is that either of you lose Mark? John, could you agree that Mary must not lose Mark as a result of these negotiations? Mary, could you agree that John must not lose Mark as result of these negotiations?” They both replied positively, and we had a major agreement. This was their third: They had agreed to mediate, they had agreed to use me as the mediator, and now
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8 they had agreed that ‘neither of them could or should Jose Mark. I felt comfortable returning to the issue of the confused parenting and spousal roles. Although the atmosphere was lighter in the room as a result of the agreement, which released them both, from their worst fear, neither parent was ready to acknowledge the other’s parenting ability. Each seemed to sense that doing so would mean losing the argument about Mark.
also to think about the question, What could you offer the other in order to get him or her to agree to your position? Don’t answer the questions now. Think about them, and we will talk about them during our meeting on Monday.”
I pointed out that we were no longer negotiating about whether one or the other parent might lose Mark but about how to share the time with him, since we recognized that he would have to live with one parent during the school year so that he could attend school on a regular basis. However, with time running put for the first session, I was unable to gain any significant movement from either of them toward acknowledging the other’s parenting. I then turned to the subject of the forthcoming weekend. They told me that Mark was to spend Saturday with his father and Sunday with his mother.
The purpose of asking these two questions was to get them to “ walk a mile in the other’s moccasins.” In order to get beyond the confusion between their spousal and parenting roles, each would have to stop ascribing motives to the other and understand what the other really wanted. At the moment, the motives that each ascribed to the other were spousal motives—that is, “she didn’t take care of me” and “he overpowered me”— and each believed that the other wanted to maintain that position. However, a solution would emerge when each could see that what they both wanted was a meaningful, nurturing parent role with Mark. They would also need to understand the other’s position more clearly in order to reach an agreement on Mark’s future parenting.
Using Dissonance Theory. As I brought the session to a close, I gave them each a new task, I said, “I would like each of you to think about ways we could move toward an acceptable agreement. I would like you both to think about the following: John, what would you want from Mary in order to agree to her position that Mark should live primarily with her? Mary, what would you want from John in order to agree with his position that Mark should live primarily with him? And, while each of you is thinking about this question, I want you
Thus, if I could gel them to think about what the other wanted and needed as a parent, what they saw would probably not be as threatening as what they saw in each other as a spouse. The purpose of the first question—“What would you want from the other in order to agree to his or her position?”—was designed to make them think carefully about what each wanted and what the other was capable of giving. To answer this question they would have to think about the issue from the other’s point of view. If they accomplished this task, they would have to change their own Continued on next page
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9 positions because they would have to admit to themselves the true, rather than the implied, motives of the other, and they would have to understand the other’s point of view. Understanding the other’s point of view is the first step in moving toward an agreement. It involves using dissonance theory to create change. Dissonance theory holds that it is not possible to hold one position and argue another; the two are in dissonance, and people will modify one or the other position in order to lessen the dissonance (Cohen, 1984). Modifying the original positions makes a negotiated agreement possible. However, not all people will try to answer the first question seriously. Thus, I ask the second question, which emphasizes one’s self-interest and which is a variation on the first question. The question, “What can you offer John to get him to agree to your position?” requires Mary to think about what John wants and accomplishes the same purpose as the first question. To know what John wants, she must understand his position, and, as each spouse comes to understand the other’s position, the implied motive disappears. While many clients simply do not deal with the first question (possibly because it asks them to think about losing), almost all clients answer the second question (probably because it asks them to think about winning). In either case, once each parent begins to think about what the other parent wants, dissonance theory begins to apply.
Acknowledging Parenting Abilities. When they returned on Monday, each looked tired and drawn. I began the session by asking what each had done over the weekend. John began: “Mark’ and I went to Jones Beach. It was secluded—not many people there—and we flew a kite, built sand castles, and bought hot dogs. There were just the two of us, and we had a great time together,” As John talked about ‘his day with Mark. I encouraged him to keep talking and provide every detail of the day. As he did this, a picture emerged of a lot of one-onone lime between father and son. At the same time, the emotional climate of the room warmed up. When John had finished, I turned to Mary and asked her about the events of Sunday. “Oh, we had a great time with a bunch of my friends,” she replied. “We went to Sunken Meadow State Park and had a picnic. There were about a dozen of us, and we spent the day playing volleyball and throwing frisbees. Then we had a great sing-song; my friend Sally brought her guitar. We barbecued hamburgers and hot dogs, and Mark had a great time with all my friends.” As Mary talked about her day with Mark, I encouraged her to keep talking and provide every detail of the day. As she did, a picture emerged of a gregarious, social day between mother and son. The emotional climate of the room grew even warmer. When both had finished, leaned forward and said, “You know, Mark is a lucky guy. He gets the best of both worlds from each of you. From you, John, he gets one-onone attention, lots of special time, and
Family Mediation Quarterly
10 gets to do those things best done by just lot.” He then continued at great speed, as the two of you. And, when he is with you, if he were afraid that the words would get Mary, he gets the opportunity to socialize away from us all. “If you will let me take and be gregarious, lots of special lime, Mark back to Seattle until the first of and gets to do things best “I want you to each to think done in a crowd. So, just as you about something before you two are different as spouses, so Mark gets different things come to see me: What would be from each of you as parents. the worst possible outcome in Each of the things he gets working with me?” from you is important, and he needs both if he is to grow up to be the January, I’ll bring him back to New York, young man you both want him to be. In and he can live with you during the school that way he is very lucky.” I then had a year and then spend the summer and choice of trying to weave this same- Christmas holidays with me each year.” different idea in a way that would get them to acknowledge each other’s We were meeting at the end of May, and parenting abilities or to proceed to my Mark was due to enter nursery school in questions of the previous week. I felt that the fall. John’s proposal meant that Mark I had acknowledged each of them would miss the first semester of nursery sufficiently so that they both could be school. I looked at Mary, who stared back non-defensive about their parenting roles, at me blankly. I stood and wrote the so it did not matter at this point if they did proposal on the flipchart. “Is that correct” not acknowledge each other. I turned to I asked John. “Yes,” he replied. “What do the assignment questions. you think about that, Mary?” “Tell me what your thinking has been about the two questions I asked you on Mary studied the words and slowly Friday. I assume you have both thought nodded assent. “So you could agree With about them.” Mary replied first, “Oh, yes, John’s proposal?” I said. “Yes,” said I thought about them a lot. It was very Mary. difficult to keep my mind focused on the questions. My mind kept wandering off With the basic agreement in place, I them, but I did stick with them.” “You, pointed out that Mary could not let John too?” said John. “I had a terrible time. In take Mark back to Washington without a fact, I was awake most of last night written agreement. I offered to draft a thinking about them. But, I finally came memorandum for them that afternoon so up with an answer, and I’d like to share it they could each take a copy to their with you now.” I replied, “Okay, John, respective attorneys for review and why don’t you begin?” drafting of the legal agreement. They then “Well,” John said, “I thought about it a turned to each other and began talking Continued on next page Summer 2012 • Vol. 11 No. 3
11 about support and some other financial arrangements and quickly came to a fair support arrangement. We agreed to add a clause requiring mediation and arbitration of any violation of the agreement and brought the session to ‘a dose. The parents have called me twice since the agreement to report that it is working well. I have warned them both that the agreement may require rethinking as Mark gets older and his peer groups become more important to him. Conclusion In this case study, I have demonstrated the usefulness of identifying the couple’s WATNA (worst alternative to a negotiated agreement) and then eliminating it from the talks to free up creative energy for solutions. I helped the couple to separate their parenting and spousal roles in the belief that it is acceptable to dislike someone as all exspouse but not as the mother or father of one’s son. I helped them to accomplish this through the use of dissonance theory and by helping them to understand what each really wanted. Finally, I validated their parenting abilities and pointed out the unique attributes that each gave to Mark. This combination of strategies helped the couple to get over the kidnappings and begin again to share the parenting of their only child.
John M. Haynes was a pioneer in the field of family mediation. He was President of Haynes Mediation Training Institute, Founding President of the Academy of Family Mediators, and served as a consultant to court systems throughout the world. He appeared on numerous national television shows and authored several books, including The Fundamentals of Family Mediation. This article first appeared in Mediation Quarterly, Journal of the Academy of Family Mediators, Number 21, Fall, 1988, Published by Jossey-Bass, Inc., a division of John Wiley & Sons, Inc. Reprinted with permission.
References Cohen, A. Attitude Change and Social Influence. New York: Basic Books, 1984. Haynes, J. M. “Mediated Negotiations: The Function of the Intake.” In J.A. Lemmon (ed.), Procedures for Guiding the Divorce Mediation Process. Mediation Quarterly, No. 6. San Francisco: Jossey-Bass, 1984.
“Grief is the price we pay for love.” Queen Elizabeth II Family Mediation Quarterly
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JOHN MICHAEL HAYNES: October 28 1932 - December 22 1999 Obituary by Thelma Fisher The Guardian, Wednesday 8 March 2000
Until 1978, there was no publicly available way in the United Kingdom of resolving divorce issues other than by separate legal representation. For a third person to help the divorcing partners work out, co-operatively, the consequences of their parting was revolutionary. The Finer Committee in 1973 recommended such a scheme, and the voluntary sector began to provide it in the late 1970s. John Haynes, who has died aged 67, was the inspirational mediator who taught the new profession how to do it. A skilful teacher, he was passionate that mediation should be a professional activity in its own right, not subsumed into legal practice, social work or counselling. The formation of the UK College of Family Mediators in 1995 reflects that determination. Haynes played a major, though indirect, part in achieving the inclusion of mediation into the family law act 1996, which led to its availability through legal aid. Born in Isleworth, Middlesex, he was educated at Ealing’s Drayton Manor grammar school. After Royal Air Force national service he moved to the United States in 1957 and from 1964-72 was assistant to the president of the International Union of Electrical, Radio and Machine Workers. Because of his skills in conflict management he was invited to teach at the State University of New York, Stony Brook, from 1972-85, gaining his doctorate at the Union Institute, Ohio. He then moved into family mediation, and became the founding president of the Academy of Family Mediators. In 1984, he gave the inaugural lecture in London of the National Family Conciliation Council (later to become National Family Mediation), and began global travels which led to the training of 20,000 mediators — usually lawyers and social science professionals. He worked in North and South America, Europe, Australasia, South Africa, and the Soviet Union. He also continued to practise. His books formed the core of this new discipline and included Divorce Mediation: A Practical Guide For Therapists And Counsellors (1981) and, with his wife Gretchen, Mediating Divorce: A Casebook Of Strategies For Successful Family Negotiations. He was a founding member of the World Mediation Forum, whose conference in September he had been due to chair. Haynes’s readiness to express his Quaker faith in finding goodness in people could be surprising. “If you can’t see good in your client,” he observed, “then dig for it”. He possessed humility, clarity, a zest for life, a mischievous sense of humour and generosity in sharing his ideas. He leaves Gretchen and his two daughters. A scholarship in his name has been established at the Union Institute. Summer 2012 • Vol. 11 No. 3
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A QUESTION OF PRIVILEGE: An Email Exchange Editor’s Note: Attorney Fran Giordano framed the questions below in an email to John Fiske, which I circulated in the hope of gathering the views of other mediators... Feel free to share your thoughts in an email to wallerstein@socialaw.com. Frances M. Giordano <FGiordano@rubinrudman.com> I have been retained by the wife in a divorce case. She and the husband had previously been in mediation (and may return after some discovery is conducted). At my client’s request, I asked the mediator to send me copies of any financial information provided to her, and draft agreements. The mediator’s response was that the information is privileged, and she would not provide it to me. Doesn’t my client have a right to those documents and this information, and isn’t it her right to give me the authority to get it from the mediator? John Fiske <jadamsfiske@yahoo.com> My answer is that of course the mediator should give you whatever information was produced during the mediation, including communications. You are the lawyer for one of the clients in the mediation. The public policy which requires the documents and information in mediation to remain privileged is the same public policy creating the lawyer-client privilege. So that’s the first reason why I think the mediator should provide you whatever you feel you need to represent your client. You’ll be interested: it’s not the first time I’ve heard mediators express concern about providing documents or information to the lawyer for a party in mediation, and I’ve always wondered about this reluctance. The second reason is that your client should already have the information and documents from his or her mediator, and can do with it whatever he or she wants. For this reason I as mediator have provided confidential information to the mother of one of my clients, at the client’s request, even though there is no mother-child privilege. Les Wallerstein <wallerstein@socialaw.com> At first blush, this seems more a question of contract than privilege. Was there is a mediation contract, and if so... what did it say on the subject of the mediator sharing documents and information with either or both clients’ counsel? Even if there was no mediation contract... or the mediation contract was silent on this subject, copies of all relevant documents should have been routinely shared with both mediation clients. Furthermore, if the wife doesn’t have copies of the relevant documents, the mediator has an obvious obligation to provide duplicate copies to her. Transparent disclosure is at the heart of mediation. On the other hand, even if a mediation contract specifically authorizes the mediator to share relevant documents and information with each party’s counsel, that authorization Family Mediation Quarterly
14 is revocable... potentially affording the husband the right to prior notice that his wife wants copies of his financial records provided to her lawyer. Thus, without knowing more facts I am of two minds: (i) a mediator may have an obligation to provide the husband with prior notice of disclosure to wife’s counsel even if there is specific authorization in the mediation contract, and (ii) a mediator has a clear obligation to provide the husband with prior notice of disclosure to wife’s counsel if there is no mediation contract... or the contract is silent on this subject. In the midst of this elegant ambiguity I believe that a signed contract that clearly permits the mediator to talk with and share documents with each client’s counsel is the best practice... and had such a contract existed in Fran’s case, the mediator could not have hidden behind the cloak of privilege. Lynn K. Cooper <lynnkarencooper@gmail.com> Wouldn’t the answer be affected by what iswritten in the mediation contract?”What I tend to do is to require both clients to sign off on returning any documents to either one of them. A letter or fax with signatures would be enough. Barbara Kellman <barbara@kellmanlegal.com> 1. My first thought is the mediator is correct about the draft agreements, absent some specific agreement of the parties. 2. The financials, it would seem to me, depend upon what they are and what the source of them is. Are they, for example, tax returns which would be available to both parties anyway or are they materials specifically prepared for the mediation? Tax returns (or similarly mutually, readily available documents) could potentially be shared but not documents prepared for mediation. 3. Does the other party agree to sharing with the lawyer? In that case, it would seem both lawyers should have equal access. Marion Lee Wasserman <mlw@reachaccord.com> Setting aside the issue of the draft agreement, since the financial documents have already been shared by the parties in a fully transparent process, and since the parties were always able (indeed, encouraged) to consult with independent counsel, what is the legal theory by which the mediator now turns down a request from one party’s attorney for copies of the documents? If one of the parties was better than the other at maintaining a set of the documents shared during the mediation process, should the less organized party be penalized for not having a full set of documents to provide to his or her lawyer? Also, is the answer different for financial documents (bank statements, etc.) provided by the clients, as compared to documents prepared by the clients (for example, a child support worksheet)? Does the answer depend on whether the mediation process has been Continued on next page Summer 2012 • Vol. 11 No. 3
15 terminated or is still ongoing? Should the documents be provided directly to the parties (both parties) rather than to either attorney? Lynda J. Robbins <lynda@familydisputesolutions.com> I always make sure that both clients have copies of all documents provided at the mediation, by the clients themselves or prepared by the mediator—such as the guidelines worksheet. If one party has lost documents, I would replace them, although my clients know that most of what I keep is in electronic format so, that might be what they get from me. I would not provide anything directly to an attorney without the client requesting it and the other client being informed and, possibly, consenting. Kathleen Townsend <kathleen@divmedgroup> My policy is to have nothing in my file (except for my notes) that hasn’t been copied and given to each client as documents are brought in or worked on in mediation sessions. I have a copier in my mediation room and make copies right then and there if it’s not many pages. When there are a lot of pages, I ask that the doc be left. We copy it within 24 hours for my file, return the original to the client and a copy to the other client. Usually, I do this as a courtesy and do not charge for it. When a lawyer makes a request or a client asks me to send something to an attorney, my response is that due to confidentiality, I don’t do that, but I will send copies out to the client who can then get them to the attorney if they choose. Then I immediately make more copies and send (email, fax) them out to each client with a quick cover letter that merely says: Dear John and Mary, Per Mary’s request, enclosed please find duplicate copies of your …… I usually do this as a courtesy and do not charge for it. A couple of tips – encouraging the clients to keep a mediation notebook or giving them a sturdy folder in which to keep their papers and to transport them to sessions helps somewhat with their organization. Also telling clients as you deal with docs that there will be nothing in your file that they don’t also have may cut down on requests for your file. Also, I tell clients that if they are planning on consulting with an attorney, the attorney is going to be looking for all the financial docs, so they should make sure they keep them safe. We all know that folks in crisis can’t always keep it all together, so there is some clean up that I just expect to do as part of the job. Jon Fields <jfields@fieldsdennis.com> I’m not sure why the mediator can’t provide all her materials to the requesting party (not the lawyer) provided both parties consent. Even with the consent of just one party, it seems that GL c 233 s 23c only governs disclosure in “a judicial proceeding.” That means to me that it can’t go into evidence, and it would not be a proper inquiry of discovery. If both (or even one) client(s) say, Family Mediation Quarterly
16 thanks for your help Jon, I want the file, I’d give it to them. Drafts, work product, everything. How or whether they could be used in court is a separate matter. Frances M. Giordano <FGiordano@rubinrudman.com> Thank you all so much for your input. I am waiting to hear from my client whether the parties signed a mediation agreement/contract. My client had previously made the request directly to the mediator for her to provide information to me, and the opposing party was informed and consented. I look forward to continued responses and appreciate your help.
AN IMPROMPTU POEM To satisfy mediating clients May take more luck than science; If there’s a rule, Always stay cool, And don’t treat them with defiance. Extemporaneously Composed By John A Fiske on 6/15/2012
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WHEN A SPOUSE DIES DURING THE NISI PERIOD Shuneet Thomson
“In the unlikely event that one of you dies during the ‘waiting period’ — after the court hearing, but before your divorce is final — what should happen with the estate of the person who died?” The divorcing parties look perplexed. “Technically you are still married for 120 days after the court hearing, your divorce is not yet final, do you wish to retain the spousal right to inherit each other, or would you like to waive it?” We ask this question of our divorcing clients. They pause, seem surprised – the thought had not occurred to them. They look at one another and make a decision based on what kind of an estate they think they have, or on their feelings about each other or their children or their feelings about their own estates. Neither expects to actually face this situation. Nor do we expect one of them to die within a few months. Someone has said “the only sure things in life are death and taxes,” yet we rise every morning believing we will live to see the light of yet another day and so will all other people we know. The possibility that one of our clients will die during the short nisi period seems merely hypothetical. I have mediated over 650 divorce cases and had not come across this situation. So I was shocked when a 59-year old former client sent me an email telling me her older retired husband had passed away suddenly in his apartment. She asked me what should she do. Her
message expressed feelings of grief and guilt and fear and shame, exacerbated by the fact that she was being pushed out by the kids of his first marriage…. Ultimately she was asking for help, how does she get a death certificate, whom should she turn to, what does this event mean for her? It seemed to me a person cannot divorce a dead spouse and this must impact her divorce, which was not yet absolute. I thought it meant she was now a widow, and could not become a divorcee. I also knew there could be Social Security consequences for her. Having never encountered this situation, I was merely guessing. I gave her the names of three attorney colleagues in her area and the name of Dennis O’Leary who had just spoken with our mediator support group about Social Security and divorce. I then sent out an email asking a bunch of attorney friends about the implications of such a situation. As a non-attorney mediator I sought to be educated about it. • Someone was concerned that I was being asked for legal advice and might tender legal advice, to which Bill Driscoll sent a thoughtful comment on the question “what level of advice can be transferred by a [non-attorney] mediator?” This topic being tangential to the subject matter of this writing, I do not quote his comments here, although the question he raised is interesting – non-
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18 attorney mediators often “transfer” information and maybe advice (?) by quoting attorneys. The distinction between straight advice and “transferred advice” is interesting and new to me. • Conveying information is typically what non-attorney mediators do. It is not the same as giving “advice.” • Lynda Robbins added an important point: “The probate rules have recently changed and I honestly don’t know how that might affect any of the divorce procedure. Hence the need to have someone who knows current law.” • Another colleague stated that as a “neutral mediator” she would not be comfortable answering the client’s questions. I wasn’t sure how to respond to this concern. Wouldn’t death make my role as mediator moot? Am I to act impartially between a living and a dead former client? What risk to impartiality does this situation pose? Can I be unfair or not-impartial to the dead husband? Maybe the concern was that in this situation I was by definition no longer acting as a mediator, so what was my role? I do not struggle too much in these situations, I see myself as being helpful and supportive as any person might be towards someone in need. • A surprising number of attorneys indicated they had never come across a party’s death during nisi, as we can see for example in this response: “I have had no actual experience with this having happened — I don’t think. Most divorce agreements have language designed to
deal with the situation where one of the parties dies before the divorce is final. That language says that notwithstanding the death, the divorcing and now surviving party will be treated as though the divorce were final. A specific answer to the question would require resort to their specific separation agreement in order to determine whether that language was there or not. If not, I kind of think the effect of the death is to negate the divorce, though I am not sure.” • Most responses emphasized the new widow’s need for urgent action in court, to get the divorce vacated ahead of the date of the Divorce Absolute. I sent her another email (here is an example of “transferred advice”): “…I hope you have contacted an attorney. I am told you need to act fast to vacate the divorce before the waiting period is over. If it passes it will be tougher to do. I am told the town can provide a death certificate for a fee of about $10.” Turns out she had hired an “attorney friend of a friend” (not one of my referrals, no surprise there) and he filed to vacate her divorce about 20 days before the date of the Divorce Absolute, so she beat the deadline. I also got two detailed and informative responses – one from attorney Mike Tremblay and the other about Social Security from Dennis O’Leary, CPA, CFP. I quote them here in their entirety for readers’ enlightenment. Mike Tremblay’s Response This is a vexatious issue that arises frequently, and not an easy one to answer. First of all, there is the issue of whether Continued on next page
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19 the Judgment Nisi becomes Absolute. But second, and more importantly, is whether the Separation Agreement continues to be a binding agreement on the parties even after death. The first question is answered apparently plainly:
pro tunc to an earlier date, etc. However, I have seen and heard other lawyers file these motions and they can be allowed without fanfare if there is no opposition. So, once again, she should hire a lawyer and move fast.
“First, the death of the wife abated the divorce proceedings. Diggs v. Diggs, 291 Mass. 399, 401- 402 (1935). Pine v. Pine, 323 Mass. 524, 525 (1948). Ross v. Ross, 385 Mass. 30, 35 (1982).”
Third, there is the issue of the separation agreement. There is strong precedent that, if the agreement was comprehensive as to all marital issues, they intended it to be permanent. A case from 1988 sums it up:
So it appears she can prevent the entry of the Judgment of Divorce Absolute by simply filing a “Suggestion of Death on the Record” accompanied by his death certificate. The Divorce action is then stopped dead in its tracks. She can get a death certificate by paying $10 at the City or Town clerk, as they are public records. However, time is of the essence here, if she lets the 90 days run and the judgment absolute enters, there will be more work to get that vacated.
“The issue before us, whether the separation agreement was contingent upon the entry of a judgment of divorce nisi or whether it had full force and effect from the date it was executed, is governed by the intent of the parties. See Moore v. Moore, 389 Mass. 21, 23-25 (1983). We determine that intent by an analysis of the entire agreement and its context, and we conclude that the parties intended the agreement to have full force and effect as of at least the date of the order approving it, which happened in this case also to be the date the parties signed it. The agreement was a comprehensive and final settlement of the financial relationship of the parties, not only covering matters affecting their immediate situations, but also dividing their assets and resolving their inheritance rights and their responsibilities for each other’s indebtedness. Such complete and permanent separation agreements, freely entered into by parties contemplating a divorce, are favored by the public policy of Massachusetts and generally are enforceable, absent “countervailing equities.” Pavluvcik v. Sullivan, 22 Mass. App. Ct. 581, 584 (1986).
Next, can she vacate the Judgment of Divorce Nisi? It would appear so, but there has been contentious litigation on this issue, as it is frequently opposed by family members. When you think it through, it makes sense. The kids now stand to inherit her half of everything, maybe the family house too, so they have a big incentive to see the divorce become final. In every case I read, the court seems to find a way to deny vacating the judgment nisi — i.e., there was an appeal, there was a statement of objections, the post-judgment pleadings did not stay the running of the nisi period, the judge intended the judgment nisi to enter nunc
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20 So even if she can stop the entry of judgment absolute and vacate the judgment nisi, she may still be bound by the agreement, and the Husband’s estate can enforce it as a contract. And, of course, the husband’s estate will be driven by the children who stand to inherit his half of everything. Not a nice predicament to be in. A lot of her outcome appears to depend on how much money the other side is willing to spend to fight her. She could very well sail through it smoothly, but will never know unless she tries. On the other hand, her Social Security benefits do not appear to be affected. So long as they were married 10 years, she gets full spousal and survivor benefits, if I remember correctly from last month’s presentation. Dennis O’Leary’s Response FACTS: Couple is married for 8 years and in the process of obtaining a divorce. Husband is age 65 and receiving a pension plus social security. Wife is age 59. Before the divorce is finalized the husband dies. Is the wife entitled to a spousal or survivor benefit? ANSWER: The good news from a financial standpoint is the husband died before the divorce was finalized, which makes her a widow. If the divorce had been finalized, the wife would not have been entitled to any spousal benefits from social security. She would be entitled only to her own benefits (unless she remarried and her new husband retires, which
creates other options). You must be married at least 10 years to qualify for divorced-spouse social security benefits, which she was not. What she does qualify for as a widow is survivor benefit. The wife can begin collecting her survivor benefit at age 60 (unless disabled or if she has children age 16 or under). If the wife files at age 60, her benefit would be 71.5% of what the husband was collecting at the time of death. If the wife waits to her full retirement age of 66, she would be entitled to the husband’s full benefit (adjusted for inflation). Note: the survivor benefit is higher than the (divorced) spousal benefit therefore you would always select the survivor over spousal benefit. Of course, the wife is entitled to her own benefit as well. This benefit can be structured with her survivor benefit to maximize benefits to suit her needs. OTHER CONSIDERATIONS: The analysis seems simple enough but you would need to know a few more facts to make an informed decision. • What type of pension does the husband have? If it is a government pension, the wife might need to consider pension offset issues. • What type of social security benefits is the wife entitled to? You want to structure payments to maximize the overall benefits based on all factors. You can’t determine this unless you run the numbers on different scenarios.
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21 • What are the tax implications of each decision? If the wife draws her survivor benefit at age 60 and is working and paying into social security, her benefit will be reduced by $1 for every $2 she earns over $14,640 in earned income. Once the wife reaches full retirement age, this penalty terminates. • What are the financial and health considerations to be factored into the decision? Social security is similar to a lifetime annuity with inflation adjustments (in most cases there are no inflation adjustments for pensions or annuities). Therefore, you should try to maximize the social security benefit if you plan on living a long life. In most cases, when you schedule an appointment with the social security office, they are helpful. However, their focus is on maximizing your benefit at the time you visit, not analyzing different scenarios and recommending the best option for the long run. You should have a plan in advance of setting up an appointment (try to setup at least 3 months in advance of filing date).
Shuneet Thomson, Ph.D., is the founder and president of Interpeople Inc. since 1996. She has offices in Littleton and Arlington and does mostly divorce and workplace mediation. Contact: drthomson@interpeople-inc.com; 978486-3338. Michael J. Tremblay, Esq. is an attorney mediator. His practice is located in Marlborough, where he concentrates in divorce mediation and bankruptcy. Contact: Attorney@tremblay.com; 508-485-4500. Dennis O’Leary, C.P.A., C.F.P. is an associate with Jim McCusker Associates in Chelmsford and Boston. He specializes in maximizing clients’ social security benefits and consults on financial planning, portfolio management and tax preparation. Contact info: d-oleary@comcast.net; 781-413-6235.
“Death is a very dull, dreary affair, and my advice to you is to have nothing whatever to do with it.” William Somerset Maugham Family Mediation Quarterly
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AN ADR CONSUMERS’ BILL OF RIGHTS By William M. Levine, Esq., & Hon. E. Chouteau Levine (Ret.)
Since mid-January of this year, we have operated a stand-alone practice of mediation, arbitration and associated neutral services only, as Levine Dispute Resolution Center LLC. In trying to crystallize what we are about and what we can offer for an increasingly web-affected marketplace, we have tried to convey our respect and enthusiasm for facilitated negotiations, and out-of-court resolution of differences, more broadly. In that effort, we have come to realize that we can summarize the processes that we offer as effective, comprehensive and humane; and to help us do so in a few words, we have developed: THE LDRC CONSUMERS’ BILL OF RIGHTS YOU have the right to have an attorney (with you or outside sessions). YOU have the right to receive accurate financial disclosure (comprehensive or targeted). YOU have the right to file a complaint for divorce or modification, and not be judged negatively for it (for financial protection, to incent disclosure, to begin “waiting” periods, to “stop the clock” on general term alimony and to preserve retroactivity). YOU have the right to dignified, honest and fair treatment (from us and from your negotiating partner). YOU have the right to leave (you are here voluntarily, always). YOU have the right to our impartiality (we can’t say that we are unaffected by our interactions with you, but we work every day, in every session, to maintain our objectivity and balance). YOU have the right to the best information that we give you and your negotiating partner (our knowledge and our judgment are two important things that you are buying from us). YOU have the right to transparent billing (we will account for all of our activities in a timely way). YOU have the right to privacy (in our locations, in our communications and with contractual confidentiality). YOU have the right to our very best efforts (always – that’s why we are here). Please tell us what you would add, delete or change in this list. The authors are the principals of Levine Dispute Resolution Center LLC, of Westwood and Northampton, MA. Bill may be reached at wmlevine@levinedisputeresolution.com; and Chouteau may be reached at eclevine@levinedisputereolution.com. Family Mediation Quarterly
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THE BOTT CASE: Mediation, Public Perception & The Unauthorized Practice of Law By Jonathan E. Fields
This quarter, rather than a case review, I want to focus on the recent Supreme Judicial Court opinion, Matter of Bott, 462 Mass. 430 (2012) which has attracted wide attention in the local mediation community. Because of its potential ramifications, many of us have been anticipating this case with great interest and even a certain anxiety. The good news: while the Court could have used this case to find that mediation is the practice of law, it did not do so. Of course, such a decision would have been a serious blow to non-lawyer mediators, many of whom are members of MCFM. But what did the Court hold? And what can we learn from the case? The facts are simple. Mr. Bott, an attorney, agreed to resign from the practice of law in the context of a legal disciplinary proceeding and the Board of Bar Overseers accepted his resignation as a disciplinary sanction. Following his resignation, Mr. Bott filed a petition to the Single Justice requesting permission to serve as a mediator. The Single Justice sent it to the SJC for its decision. The narrow issue before the SJC was whether Mr. Bott, an attorney whose resignation was accepted as a disciplinary sanction, was permitted to perform services as a mediator. The Court held, essentially, that Mr. Bott may be barred from acting as a mediator “when to do so would be perceived by the public as an
extension of the attorney’s practice of law.” To the SJC, public perception (how the public views the work sought to be performed by the sanctioned lawyer) is critical. Thus, the Court went on: “it is relevant whether a disbarred or suspended lawyer draws on his or her legal education and experience and exercises judgment in applying legal principles to address the individual needs of the client.” Further, whether a sanctioned attorney engaged in the practice of law depends on whether the person’s post-sanction work was performed by the lawyer prior to the sanction, whether the work is customarily performed by lawyers, and whether the lawyer seeks to perform work in the same community or for other lawyers. Bott’s focus is narrow. It doesn’t mean that a non-attorney mediator is engaged in the unauthorized practice of law. It’s about whether a sanctioned attorney can engage in mediation; when that attorney performs certain professional activities, there is a heightened risk that the public may perceive such activity as the practice of law. In fact, Bott points out that some services performed by non-lawyers become legal activity when performed by a sanctioned lawyer. For example, in one case, a sanctioned attorney was barred from working as a title abstractor even though Continued on next page
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25 title abstractors are not necessarily lawyers. In another example, the disciplinary rules themselves explicitly provide that sanctioned attorneys cannot work as paralegals – although paralegals are clearly not engaged in the practice of law. What does the decision teach to mediators generally? The public’s perception about whether an individual is practicing law is at the heart of the matter – and the perception applies, without distinction, to attorneys and nonattorneys. This triggers for me questions that mediators have been wrestling with for a long time. If a mediator has the clients sign an agreement that explicitly sets forth that he/she is not acting as their attorney, is that a sufficient defense to a “practicing law” claim? It still matters what the mediator does after they sign, it seems. For example, the mediator couldn’t go represent one of them in court on the same matter. But what about
drafting financial statements or preparing separation agreements? Might that alter the client’s perception about what role the mediator is actually performing? And what if, despite the mediator’s recommendation, the parties do not have attorneys review the draft? Clearly, a review by other attorneys would, among other things, emphasize that the mediator is not acting as an attorney. Or: is the signed acknowledgement that most of us use enough? Unfortunately, I have questions but no clear answers. I know that mediators will be dissecting this case further in the year ahead and I hope to learn some of your thoughts on this case. 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
“Intellectuals solve problems; geniuses prevent them.” Albert Einstein
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WHAT’S NEWS? National & International Family News
Chronologically Compiled & Edited by Les Wallerstein Cohabiting in America Cohabitation in the United States has increased by more than 1,500 percent in the past half century. In 1960, about 450,000 unmarried couples lived together. Now the number is more than 7.5 million. The majority of young adults in their 20s will live with a romantic partner at least once, and more than half of all marriages will be preceded by cohabitation. (Meg Jay, New York Times, 4/15/2012) Economists Document Acute Wealth Concentration in America Emmanuel Saez and Thomas Piketty have spent the last decade tracking the incomes of the poor, the middle class and the rich. Their work shows that the top earners in the United States have taken a bigger and bigger share of overall income over the last three decades, with inequality nearly as acute as it was before the Great Depression. Research at the Internal Revenue Service allowed them to stretch the data all the way back to 1913. They figured out the benchmark for various income levels — the top 10 percent, top 1 percent and top 0.1 percent of earners, for instance — and calculated what share of income each group took each year. From 2000 to 2007, incomes for the bottom 90 percent of earners rose only about 4 percent, once adjusted for inflation. For the top 0.1 percent, incomes climbed about 94 percent.
Data that the two economists released in March showed that the top 1 percent of earners got nearly every dollar of the income gains eked out in the first full year of the recovery. In 2010, the top 10 percent of earners took about half of overall income. (Annie Lowrey, New York Times, 4/17/2012) U.N. Report Forecasts 10.1 Billion People by Century’s End The population of the world, long expected to stabilize just above 9 billion in the middle of the century, will instead keep growing and may hit 10.1 billion by the year 2100. The new report comes just ahead of a demographic milestone, with the world population expected to pass 7 billion in late October, only a dozen years after it surpassed 6 billion. The United States is growing faster than many rich countries, largely because of high immigration and higher fertility among Hispanic immigrants. The new report projects that the United States population will rise from today’s 311 million to 478 million by 2100. (Justin Gillis & Celia W. Dugger, New York Times, 5/3/2012) U.S. Students Hobbled by the Soaring Cost of College With more than $1 trillion in student loans outstanding in this country, crippling debt is no longer confined to dropouts from for-profit colleges or graduate students who owe on many years of Continued on next page
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27 education. Ninety-four percent of students who earn a bachelor’s degree borrow to pay for higher education — up from 45 percent in 1993. For all borrowers, the average debt in 2011 was $23,300, with 10 percent owing more than $54,000 and 3 percent more than $100,000. Nationally, state and local spending per college student, adjusted for inflation, reached a 25year low this year, jeopardizing the long-held conviction that statesubsidized higher education is an affordable steppingstone for the lower and middle classes. All the while, the cost of tuition and fees has continued to increase faster than the rate of inflation, faster even than medical spending. If the trends continue through 2016, the average cost of a public college will have more than doubled in just 15 years, according to the Department of Education. Much like the mortgage brokers who promised pain-free borrowing to homeowners just a few years back, many colleges don’t offer warnings about student debt in the glossy brochures and pitch letters mailed to prospective students. (Andrew Martin & Andrew W. Lehren, New York Times, 5/12/2012) Whites Account for Under Half of Births in U.S. According to Census Bureau, non-Hispanic whites accounted for 49.6 percent of all births in the 12-month period that ended last July. Minorities — Hispanics, blacks, Asians and those of mixed race — reached 50.4 percent, representing a majority for the first time in the
country’s history. Whites still represent the single largest share of all births, at 49.6 percent, and are an overwhelming majority in the population as a whole, at 63.4 percent. The result is striking: Minorities accounted for 92 percent of the nation’s population growth in the decade that ended in 2010. (Sabrina Tavernise, New York Times, 5/17/2012) Defense of Marriage Act Held Unconstitutional Where a lawsuit has been filed challenging section 3 of the Defense of Marriage Act (DOMA), which denies federal economic and other benefits to same-sex couples lawfully married in Massachusetts and to surviving spouses from couples thus married, the challenged portions of the statute must be declared unconstitutional, as Congress’s denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest. “... Many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today. One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage. Under current Supreme Court authority, Congress’ denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.” Commonwealth of Massachusetts v.
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28 United States Department of Health and Human Services, et al. (Lawyers Weekly No. 01-140-12) (Boudin, J.) (1st Circuit) (Tom Egan, Massachusetts Lawyers Weekly, 6/1/2012). Supreme Court Asked to Rule on Marriage Act The Obama administration is asking the Supreme Court to settle the legal fight over a law that denies federal benefits to married gay couples. The Justice Department asked the court in its next term to hear an appeal of lower court rulings striking down a part of the Defense of Marriage Act. The earliest the justices might decide to hear the case is in late September. Arguments would
probably take place over the winter, with a decision returned by late June. The administration said it agreed with the lower court rulings, but wants prompt Supreme Court review because President Obama has instructed federal agencies to continue to enforce the law’s ban on federal benefits to married gay couples until there is a final ruling. (Associated Press, New York Times, 7/4/2012) Les Wallerstein is a family mediator and collaborative lawyer in Lexington. He can be contacted at (781) 862-1099, or at wallerstein@socialaw.com
“Science cannot solve the ultimate mystery of nature. And that is because, in the last analysis, we ourselves are part of nature and therefore part of the mystery that we are trying to solve.” Max Planck Summer 2012 • Vol. 11 No. 3
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MCFM MEMBER PROFILE HELENA S. FRIEDMAN Address: 1380 Main Street, Suite 202, Springfield, MA 01103 Website / e-mail: www.Helenafriedman.com / Helena.Friedman@gmail.com Professional background: Bachelors of Arts in Sociology 1979; J.D. 1985; Mass Bar 1985; CT Bar 1993. Mediating since/ mediation history: My training in mediation has been as follows: Dispute Resolution Services, Basic Mediation (32 hours); The mediation and Training Collaborative (Divorce Mediation (32 hours); CT Divorce Law Training with Barbara Aarons; and several collaborative law trainings. Describe your mediation practice: I primarily do divorce mediation and other related family law mediations. Describe your mediation workspace: I have a comfortable conference room in my law office. What made you decide to be a mediator: I became a lawyer because I wanted to help people. By nature, I prefer to settle disputes rather than fight them out. Families who are transitioning are driven further apart by the litigation/ trial process. Mediation and collaboration give families a way to arrange their financial lives in the most mutually beneficial way possible, which also gives them the tools to communicate effectively into the future. Most memorable mediation moment: When you get the parties to actually listen to each other Most helpful advice offered to you when starting to mediate: Charge per session to be paid at the end of the session. Least helpful advice offered to you when starting to mediate: I was advised not to save my notes. I think this is bad advice because people call back. Any advice to offer to new mediators: I co-mediated my first divorce mediation case with a social worker. Our combined skills were a wonderful complement to the process. Try it! Family Mediation Quarterly
30 If you could meet anyone, living or dead, who would it be and why? The Dalai Lama Hobbies and interests: Travel; crafts, which include making and designing jewelry and stained glass. Favorite music, movie or sport: I love Jazz and R&B music Last book read: The Help Wise advice: Do what makes you happy. What would you want with you if marooned on an island? Not what but who: my husband and my two children.
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.
“All that happens means something; nothing you do is ever insignificant.” Aldous Huxley Summer 2012 • Vol. 11 No. 3
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MCFM NEWS 2012 ELECTION RESULTS MCFM is pleased to announce that the following people will serve as Officers and Directors.
MCFM DIRECTORS:
MCFM OFFICERS: President: Jonathan E. Fields
Vice President: Laurie S. Udell Vice President: Kate Fanger
Vice President: Barbara Kellman Clerk: Tanya Gurevich
Treasurer: Kathleen A. Townsend Past President: Lynn K. Cooper
S. Tracy Fisher, Rebecca J. Gagné, David Kellem, William C. Leonard, Steven Nisenbaum, Vicki Shemin, Diane W. Spears, Crystal Thorpe, Les Wallerstein, Marion Lee Wasserman & Fran L. Whyman Directors Emeriti: John A. Fiske, Janet B. Weinberger, Jerome H. Weinstein & Barbara N. White.
MCFM gratefully acknowledges the contributions of all serving officers and directors, and those of former directors: Lynda J. Robbins, Mary A. Samberg and Mary Socha.
MCFM’S NEXT FREE PROFESSIONAL DEVELOPMENT WORKSHOP MEDIATION PEER SUPPORT Lynda J. Robbins and Lynn K. Cooper will lead a discussion of how peer support works: in groups of mediators who meet regularly, in various kinds of mentor programs (which the MCFM may be expanding) and we may even hear from a very active client support group at the end. Wednesday, October 10th WELLESLEY PUBLIC LIBRARY Wakelin Room, 2:00 – 400 PM PLEASE REGISTER IN ADVANCE AT WWW.MCFM.ORG Family Mediation Quarterly
32 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
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.
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OFFER MCFM’s 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! TO OBTAIN COPIES MEMBERS MAY call Ramona Goutiere: 781-449-4430 or email: masscouncil@mcfm.org
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
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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.
“Man: An animal so lost in rapturous contemplation of what he thinks he is as to overlook what he indubitably ought to be.” Ambrose Bierce
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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.
MCFM’S GALA CELEBRATION COMMEMORATING OUR 30TH ANNIVERSARY AT THE MIT ENDICOTT HOUSE IN DEDHAM SEPTEMBER 13, 2012, Cocktails & hors d’oeuvres 6:00 – 7:30 PM Dinner & lively entertainment 7:30– 10:00 PM INVITATIONS WILL BE MAILED TO MCFM MEMBERS ONLY SPACE IS LIMITED: RESERVE YOUR PLACE EARLY Guests of members may attend if space permits after August 15TH SAVE THE DATE
8TH ANNUAL JOHN ADAMS FISKE AWARD NOMINATIONS NOW OPEN! In 2005 the Massachusetts Council on Family Mediation established the John Fiske Award for Excellence in Mediation. Please tell us in 100 words or less why your nominee has demonstrated excellence in and/or contributed to family mediation in Massachusetts. Submit your nomination by email to jfields@fieldsdennis.com SUBMIT YOUR NOMINATION NOW!
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CHILD SUPPORT PANEL SEEKS GUIDELINE INPUT DEADLINE: SEPTEMBER 30, 2012 The Trial Court is inviting public comment and suggestions concerning the Massachusetts Child Support Guidelines. If suggestions include specific changes to the guidelines, they should include specific sections, the exact new language proposed and reasons for the proposed amendments. Written comments may be emailed to childsupport@jud.state.ma.us, or submitted in writing to the Child Support Guidelines Task Force at the Administrative Office of the Trial Court, Suite 540, Two Center Plaza, Boston, MA, 02108. The task force will also hold five public forums at which written statements may be delivered and brief oral statements may be made. The forums will be held in September in locations across the state.
ELDER DECISIONS PRESENTS Conflict Resolution Skills Training: Working with Families in Conflict
Thursday, September 20th, 9 am- 3pm The Walker Center, 171 Grove Street, Newton Families don't always agree on what is best for Mom or Dad as they face difficult transitions. This training will help you work with clients and their families when there is disagreement in the ranks. You will learn tools to run more effective family meetings, Wwork with parties with strong emotions and facilitate consensusbuilding. Cost: $195 through August 21, 2012 ($225 thereafter) Includes lunch, snacks, and course materials. Earn 5 hours of CCM continuing education credits, 5 Social Work CEUs DETAILS AND REGISTRATION AT: www.elderdecisions.com $100 DISCOUNT FOR MCFM MEMBERS
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ACADEMY OF PROFESSIONAL FAMILY MEDIATORS FOUNDING CONFERENCE Returning to our roots, family mediators have come together and formed a new, national organization: the Academy of Professional Family Mediators. Our first national conference will launch our national organization and, in spirit, launch a new Family Mediation Movement! Our conference will include sharing and developing of our vision, as well as sharing advanced mediation concepts, skills, friendship and lots of fun. September 27-30, 2012 Sea Crest Beach Resort in Cape Cod For more information visit www.professionalfamilymediators.org
30-HOUR BASIC MEDIATION TRAINING Presented by The Mediation & Training Collaborative (TMTC) Northampton, MA September 27 and October 2, 13, 16 & 27 Three Saturdays 9-5 and two Tuesdays 3:30-9
This highly interactive, practice-based training is open to anyone who wishes to increase skill in helping others deal with conflict, whether through formal mediation or informal third-party intervention processes in other professional settings. TMTC is a court-approved mediation program, and this training meets SJC Rule 8 and Guidelines training requirements for those who wish to become court-qualified mediators. Social work CECs and attorney CLEs available upon request. For more details or brochure contact Susan Hackney at mediation@communityaction.us or 413-475-1505 or visit www.mediationandtraining.org.
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METROWEST MEDIATION SERVICES, INC. VOLUNTEER MEDIATOR TRAINING OCTOBER 2012 MetroWest Mediation Services will be offering a 36-hour mediator training for people in MetroWest who are interested in becoming volunteer mediators in the Framingham, Natick, Concord and Marlborough District Courts. To be eligible for this training, interested people must agree to volunteer 2 halfdays a month for at least one year. An interview and references will be required prior to acceptance into the program. There is a $100 fee to cover the cost of materials. The Volunteer Mediator Training will take place at 600 Concord Street in Framingham as follows: Wednesday Friday
October 10 8:30-12:30 October 12 8:30-3:30
Monday Wednesday
October 15 8:30-12:30 October 17 8:30-12:30
Friday Monday Friday
October 19 8:30-3:30 October 22 8:30-12:30 October 26 8:30-2:30
Make-up Date: October 29
If interested, call Jan at 508-872-9495 or email info@metrowestmediationservices.org or visit www.metrowestmediationservices.org
DIVORCE IN MASSACHUSETTS: WITH OR WITHOUT A LAWYER Jerome Weinstein & Les Wallerstein
THE CAMBRIDGE CENTER FOR ADULT EDUCATION 42 Brattle Street Saturday, October 13, 2012 9:30 AM - 12:30 PM When the issue of divorce is raised, most people donâ&#x20AC;&#x2122;t know where to turn. How do I get information? Do I need an attorney? Should I pay a retainer? What will happen to my children and my home? This course will give you information about what you can and cannot do and what kinds of risks are involved. It will also address when you need an attorney (with the attendant costs) or when you can use a mediator or do it yourself. You will also receive resources and a bibliography. Online Registration: http://www.ccae.org Phone Registration: 617-547-6789 Cost: $61 Limited to 20 Summer 2012 â&#x20AC;˘ Vol. 11 No. 3
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DIVORCE MEDIATION TRAINING ASSOCIATES (DMTA) October 17, 18, 19, November 2 and 3, 2012 Location: Wellesley College Club
John Fiske and Diane Neumann present Divorce Mediation Training, an intensive, 5day training program that equips you with the skills of a divorce mediator and grants a certificate upon completion of the training. You do not need to be an attorney to take this course. We are one of the oldest and most recognized mediation training organizations in the country because we’re not just trainers- we’re both full-time mediators. John and Diane have been teaching mediation since 1988 and are proud that several Massachusetts Probate Court judges have completed our training program. Each of us has over 30 years of experience in our respective private mediation practice. This comprehensive training in mediation includes: • 40 hours of training (exceeds the Massachusetts Mediator Confidentiality Statute) • A Certificate of Divorce Mediation Training upon completion of the 40 hour training • Course materials include a DMTA training video and resource materials • Approved by the National Association for Conflict Resolution (ACR) For more information: John Fiske: 617-354-7133 Diane Neumann: 617-926-9100
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 subjects, 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
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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, 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://firstcongregationalnorwood.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 Summer 2012 • Vol. 11 No. 3
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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 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 ($650 if registration received by October 1, 2012) 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
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 articles call Les Wallerstein (781) 862-1099 or email wallerstein@socialaw.com 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 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 online 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. Summer 2012 • Vol. 11 No. 3
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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. Summer 2012 â&#x20AC;˘ Vol. 11 No. 3
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