MCFM
FAMILY MEDIATION QUARTERLY Vol. 2 No. 2
Spring 2003
The Massachusetts Council On Family Mediation is a nonprofit corporation established in 1982 by family mediators interested in sharing knowledge and setting guidelines for mediation. MCFM is the oldest professional organization in Massachusetts devoted exclusively to family mediation.
From The President The contributions of three MCFM innovators, Frank W. Benson, Barbara N. White, and Jerome (Jerry) H. Weinstein, were honored on May 4th by the Board of Directors. Their leadership in our field deserves celebration, while their careers tell the story of Massachusetts divorce mediation. The first divorce mediator in New England, Jerry Weinstein was a founder of the MCFM. As a social worker in 1976, following his initial engineering career, Jerry attended a talk about the work of O. J. Coogler, the originator of structured divorce mediation. Impressed by what he learned, Jerry and others created the Divorce Resource and Mediation Service - the first divorce mediation program in Massachusetts. In the late 1970’s, Jerry provided the first Massachusetts training in divorce mediation, and for the past fourteen years, he has co-taught “Divorce: With and Without a Lawyer” at the Cambridge Center for Adult Education. Jerry recalled, “When we started out it was like hitting your head against a stone wall” in terms of lawyers and judges accepting the idea of mediation. Psychologist Barbara White has been an enthusiastic supporter of divorce mediation and an MCFM activist for more than twenty years, including ten years as MCFM treasurer. Having been “intrigued” by mediation following a talk by Jerry Weinstein, Barbara was trained in mediation in the early 1980’s by O.J. Coogler. She found the practice “absolutely fascinating” and described her introduction to the field as “like a door opening to a brand new wonderful skill.” Barbara established a mediation practice in 1982, in which she could continue her professional focus on children. Frank Benson, originally a businessman, became interested in conflict resolution in 1988 through his consulting work with the Center for Policy Negotiation, an organization dealing with national and international issues. Frank has pursued extensive training in the negotiation field. In 1993, an internship led him to the Middlesex Multidoor Courthouse, a mediation program then located at the Superior Court. Frank founded a branch of the program at the Middlesex Probate and Family Court, which he directed for over five years - essentially a pro bono effort. Frank reported that the Multidoor Courthouse “got the word out” on mediation and served to educate “the man in the street” about a new way to resolve conflict. Frank valued the importance of family mediation because in divorce “kids lives were on the line.” Our thanks to these three guides for setting a strong course for MCFM members to follow.
Contents 1
Paradoxes of Mediation, Part II of II By David A. Hoffman
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Spousal Health Insurance Rights After Divorce: A Quick Guide for Family Mediators By Clare D. McGorrian
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Begone From Our Lexicon! The Case to Replace “Physical Custody” & “Visitation” By John A. Fiske
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Lawyers & Mediation: Their Role as Consultants By Lynda J. Robbins
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What If? By Marilyn M. Levitt
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The Benefits of Self-Reflection in Your Mediation Practice By Oran Kaufman
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Pausing at the Divorce Door: Mediation Decision Making for Relationships in Crisis By Janet Miller Wiseman
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Domestic Relations: Rules Update By Fern Frolin
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Reflections on Forgiveness By Jay Uhler
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ADR Court News By Christine W. Yurgelun 32 34 36 37
MCFM News Announcements Letters to the Editor Editorial
38 Join Us 39 Directorate 40 Editor’s Notice
MCFM © 2003 All Rights Reserved Family Mediation Quarterly
Spring 2003 • Vol. 2 No. 2
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2 PARADOXES OF MEDIATION, PART II OF II by David A. Hoffman
Editor’s Note: David A. Hoffman’s two-part article “Paradoxes of Mediation” explores how the process of mediation involves balancing a number of competing objectives simultaneously, some of which are mutually inconsistent, indeed, paradoxical. In Part I (Family Mediation Quarterly, Vol. 2, No. 1, Winter, 2003), the author described five of 10 micro-level paradoxes involving tensions inherent in the practice of mediation. In his conclusion, Hoffman sets out the final five micro-level paradoxes, along with a group of macro-level paradoxes involved in the field of mediation as a whole. He suggests that exploring these paradoxes will broaden the practitioner’s appreciation for the multiple ways in which the tensions of mediation can be successfully resolved. * * * * * * * * * * * * * According to Zen Buddhism, one way enlightenment can be achieved is by holding two contradictory thoughts in the mind simultaneously. Mediation often presents precisely this type of challenge because we must hold in the mind simultaneously the perspective of each of the parties perspectives that often have little in common with each other and are usually contradictory or mutually exclusive. The very complexity of the work is one of the things that makes it so appealing: no matter how much experience we have, no matter how skilled we may become, mastery will always elude us. Impartiality vs. bias toward problem-solvers Mediators aspire to be impartial. Indeed, impartiality is an ethical requirement. And most mediators are able to act in ways that
appear to the parties to be impartial. Yet even the most experienced mediators will admit to feelings of bias that begin to develop shortly after the mediation has begun - often within minutes. Perhaps the most common bias is in favor of the party or parties who, like the mediator, embrace a principled, interest-based style of negotiation. Mediators generally do not like belligerent, positional bargainers who are uninterested in expanding the pie, and who focus instead on seizing the largest obtainable piece of it. Mediator and author Ken Cloke describes the mediator’s role as being “omnipartial.”(1) The paradoxical element is the mediator’s need to identify with, and support, people whose positional bargaining seeks to undermine, and in some cases, take advantage of the mediator’s problemsolving, interest-based orientation. Mediators are bargainers in the mediation process, seeking cooperation, disclosure, and concessions, just as the parties do. Moreover, mediators pursue ends of their own - principally, a successful outcome. The meaning of success may vary from case to case and may not always require a settlement of the underlying dispute. But it is naïve to assume that mediators are indifferent as to outcome, and thus it is remarkable that mediators succeed in remaining “omnipartial” to those who stand in the way of success. A related paradox arises when the parties begin to trust the mediator (perhaps because of her omnipartiality) and share with her
Family Mediation Quarterly
secret information about themselves - perhaps an admission of culpability -- that causes the mediator to feel less omnipartial. To earn the parties’ trust is an important mediator skill, requiring a good deal of empathy. The fruit of that trust, however, can sometimes leave a bitter taste in the mediator’s mouth and cause her to question whether the empathy was misplaced.
to themselves. Thus, the effort to win trust may have the opposite effect. Honesty vs. protection from fraud Mediators occasionally learn more than they want to know. When one side or the other shares with the mediator confidential information that might affect the other party’s willingness to settle, the mediator must decide whether disclosure of that information to the other side is necessary to avoid perpetrating a fraud. For example, in a recent case, three brothers and their father were in a real estate dispute with their elderly neighbor, who did not know that title to the land in question had been completely transferred from the father to the sons. From the standpoint of the settlement terms, it did not seem to matter who owned the land. But to the elderly neighbor, it did: after signing a settlement agreement, he sought to revoke the deal when he learned of the change of ownership. The mediator had been given the information, on a confidential basis early in the mediation, by the father and his sons, who rejected the mediator’s advice that they disclose the change in ownership. The
Trust vs. transparency One of the mediator’s principal tasks is to win the trust of the parties. From the first moments of her involvement with the parties or their counsel, the mediator seeks to convince them that she will be fair and evenhanded. In theory, transparency - candor by the mediator about the process and the mediator’s role in it - enhances such trust.(2) And yet there are aspects of the mediator’s work that, according to some, involve deception and manipulation. In his articles about the mediator as “trickster,” Robert Benjamin describes one aspect of the mediator’s role - playing the part of the wise fool (a role not unlike that of Peter Falk’s character, Lt. Columbo).(3) Playing such a part successfully, of course, cannot be done The paradoxical element is that part of transparently. Does our job as mediators is to encourage the mediator seek to win the parties’ trust the parties to vent their emotions only to take advantage while we must suppress our own of it, in the way that Lt. Columbo lulls his suspects into complacency? And if the mediator, of course, could not find out from mediator is truly transparent, might such a their neighbor whether the change of stance not only undermine her effectiveness ownership would matter to him because the but also cause the parties to question their inquiry itself would amount to an ability to trust such a mediator? Transparency impermissible disclosure. is hardly the norm in our dealings with others, who tend to keep their agendas and methods Continued on next page Spring 2003 • Vol. 2 No. 2
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The paradoxical aspect of this situation is three-fold. First, the mediator has conflicting
strong feelings about the matter. Likewise, as noted above, mediators cannot avoid having an emotional reaction The more universal mediation becomes to the parties, but must avoid letting such in the world of litigation, the greater reactions create an the risk that its ubiquity will undermine appearance of partiality. The its effectiveness paradoxical element is ethical duties (honesty to the parties, that part of our job as mediators is to encourage confidentiality, and refraining from the parties to vent their emotions while we perpetrating a fraud), all of which must be must suppress our own. honored. Second, the mediator’s participation in the process may have Providing normative data vs. promoting enhanced the parties’ level of confidence that party self-determination they were receiving honest treatment, when Mediators are frequently asked, “What do in fact the mediation may have lulled one of you think is fair? What do you think is them (the elderly neighbor) into a false sense reasonable? What do most people do? What of security, while at the same time satisfying do the courts do? What do you think we the need of the others (the father and sons) to should do?” The parties seek benchmarks confess the true state of affairs. Finally, norms against which they can measure their while the parties may have believed that the own sense of fairness or reasonableness. Yet mediator’s involvement would enhance the the mediator will ordinarily resist these likelihood of achieving an enforceable efforts to drag her into the fray, because party agreement, the mediator’s non-disclosure autonomy (including letting the parties apply gave the neighbor grounds for challenging their own standards of fairness) is a vital the enforceability of the settlement terms. principle of mediation. The paradoxical (The case, by the way, settled, but only after element here is that, notwithstanding the a second round of mediation - and new mediator’s efforts to avoid injecting her own settlement terms, more favorable to the normative views, her influence is elderly neighbor - when the title issue came unavoidable. to light.) Social scientists have demonstrated that Emotion: encouraging expression by the observation produces change in the behavior of the observed. Known as the “Hawthorne parties while suppressing our own A seasoned plaintiff’s employment lawyer effect,” this phenomenon is at work once told me that her cases usually do not settle whenever a mediator sits at the table with the in mediation until her client cries. To be sure, parties.(4) Most often, the effect is to venting emotion is an essential part of most improve the parties’ ability to negotiate mediations. No matter how dry a business effectively, as they seek to impress the dispute may be, it probably arose because of mediator with their reasonableness. decisions by people who in all likelihood have Occasionally, however, mediators observe Family Mediation Quarterly
what can be described as reverse Hawthorne effects - that is, parties who seem to negotiate less productively if a third party is present. For example, in some cases, explosive personal issues (such as the emotional distress caused by an abrupt termination of employment, or the discovery of infidelity in a marriage) cannot be discussed productively without a third party present, and the seemingly unproductive discussions that take place in the mediator’s presence are nevertheless more productive than they would be without the mediator. Either way, the parties are affected by the norms that the mediator brings to the table either explicitly or implicitly, because they are keenly aware of the mediator’s reactions to the stories, positions and interests that they articulate at the bargaining table.(5) Some mediators consider this type of normative impact on the parties not only inevitable but also desirable. Sara Cobb describes this aspect of the mediator’s presence as “witnessing,” which is not a passive activity: [O]n the contrary, this “witnessing” involves very active participation in the evolution of narrative content. [Notwithstanding the injunction to be neutral] mediation is thus a very moral practice, and mediators are deeply implicated in the nature of the moral worlds that emerge in [mediation] sessions.(6) Thus, no matter how strenuously we may assert that the only norm we bring to the table is a commitment to assisting the parties in reaching their own self-determined solutions, our reactions to them as people, and to their stories, will unavoidably shape those solutions.
Macro-level Paradoxes At a more general level, the growing use of mediation has created a number of macrolevel paradoxes - that is, tensions within the field of mediation that are difficult if not impossible to resolve completely. Voluntariness vs. effectiveness of non-voluntary systems We value the voluntariness of the mediation process and consider it an important ingredient in mediation’s success, and yet we know from empirical research that mandatory mediation is often just as successful from the standpoint of settlement and party satisfaction with the process.(7) We also know that mediation has taken root most firmly (and most widely) in those areas of the country where it is mandatory. As two researchers have noted, “paradoxically, mediation appears to be particularly powerful and effective in resolving conflicts when parties are most reluctant to enter the process voluntarily.”(8) The success of mandatory mediation may cause some to conclude that voluntariness is a desirable but nonessential feature of the mediation process. It is important, of course, to distinguish between coercion (whether by statute, court rule, or the urging of an individual judge) to participate in mediation versus coercion to settle, which is universally condemned. There will continue to be a tension, however, in those jurisdictions that adopt mandatory mediation, between theory (mediation as enhancing the parties’ autonomy) and practice (mediation as an externally imposed requirement).
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Training: weakening the field by overpopulating it People often sign up for mediation training knowing that the glut of trained mediators in some parts of this country makes it difficult for people to find work and develop the skills they have begun to learn in their training. The paradox here is that the very attractiveness of the field to would-be mediators causes it to become unattractive for those who join it. Perhaps this tension can be resolved by reconceptualizing the role of mediation training - for example, seeking to make it more universal (something akin to, say, CPR or water-safety) rather than a form of professional training. Many litigators now study mediation in order to become more effective advocates when they represent clients in mediation, rather than becoming mediators themselves. For people who seek to practice mediation as a career, advanced forms of training or graduate study may - and perhaps should - become the path. With maturity, the field of mediation is beginning to develop forms of credentialing. For the moment, however, the ease of entry into the field, combined with its attractiveness, is causing an overpopulation that threatens to weaken it. A related problem is that volunteerism in the field - exemplified by the pioneering efforts of community mediation programs that serve low-income individuals and families - can, in some ways, undermine the professionalism of the field. Mediating on a pro bono basis often with a co-mediator - is, for some new mediators, the only way to acquire experience. Promoting volunteerism, a valuable goal in and of itself, enables mediation programs to use “many hands to
make light work,” and thus serve woefully underserved communities. Promoting professionalism, also viewed by many as a worthy goal, means giving practitioners a sufficiently steady means of earning a livelihood to enable them to enhance their skills by day-to-day immersion in the field. There is a risk, however, that the greater the availability of volunteer services in a community, the more difficult it will be for practitioners to develop professional practices. Calling vs. business In their candid moments, many mediators will acknowledge that they see their work as a “calling” as much as it is a business. Such a description reflects the idealism that mediators bring to their work - idealism that may have germinated in the civil rights or antiwar movements and has now found a home in a different form of peace work. Even for such mediators, however, the business aspects of a mediation practice need attention. The supply of mediators continues to outrun the demand, and even in those parts of the country where mediation is mandatory, there are easier ways to make a living. Moreover, as mediators become more business-like - adopting marketing strategies and the other trappings of commerce, and seeking to achieve settlements that will bring them more cases they encounter the paradox that such efforts may tarnish or diminish those idealistic aspects of the work that drew them to it in the first place.(9) Ubiquity vs. effectiveness Mediation is becoming well accepted in the world of litigation. Most state and federal courts have an ADR program of some kind,
Family Mediation Quarterly
and in most jurisdictions it is now common for litigators at least to consider engaging a mediator at some point in the litigation process. Twenty-five years ago, when mediation was in its infancy as a tool for resolving civil litigation matters, its very uniqueness contributed to its effectiveness. There is a risk, however, that if mediation is used in every case, it may soon come to be seen as just another step in the litigation process - an opportunity for informal discovery, participatory case management, or simply a court-mandated hoop to jump through on the way to trial - rather than a radical departure from that process.(10) In short, the more universal mediation becomes in the world of litigation, the greater the risk that its ubiquity will undermine its effectiveness.(11)
of mediation without massive governmental control of mediation services. To say that mediators would be ambivalent about such control is probably a considerable understatement.(12) Conclusion What are the implications of these tensions and paradoxes for practice? Several come to mind. First, the macro-level paradoxes suggest that there is no obviously correct way to grow the field. Life, as they say, is a series of trade-offs; growing the field of mediation involves trade-offs as well whether or not we conclude, for example, that mediation should be mandatory. Each of us might resolve these trade-offs differently, and the success of the field may depend on our ability to address them with frankness, with respect for the differing ways in which thoughtful people might resolve them, and with a recognition that they are, to some degree, fundamentally irreconcilable.
Need for government funding vs. resistance to government control. Most mediators believe that mediation should be available to all who need it. And yet we know that this is unlikely to occur without a high degree of Second, the micro-level paradoxes suggest governmental support. If there is one thing that there is no obviously correct way to that the hundreds of community The paradox here is that the very m e d i a t i o n programs around attractiveness of the field of mediation to the United States would-be mediators causes it to become have in common, unattractive for those who join it it is their need for greater resources to serve low- and moderate-income practice mediation. Perhaps we already populations. Private funding through knew that, but I believe that examining the foundations and the collection of fees for inherent tensions in our work underscores services have proven to be inadequate to this point, which should give us some degree address the enormous unmet need for dispute of humility as we consider such issues as resolution services. And yet we should be credentialing and regulation. careful about what we wish for, because it is difficult to imagine massive public funding Continued on next page
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Finally, a detailed examination of the paradoxes of mediation should give us a renewed appreciation of not only the difficulty of this important work but also the value of reflective practice. Reflection will likely persuade us that the very complexity of mediation - and the paradoxical nature of its goals and methods - cause successful practice to be an elusive horizon that (like enlightenment) we seek, and perhaps with many years of practice approach, but never fully reach. Footnotes 1. K. Cloke, Mediating Dangerously: The Frontiers of Conflict Resolution 13 (2001). 2. M. Moffitt, Casting Light on the Black Box of Mediation: Should Mediators Make Their Conduct More Transparent?, 13 OHIO ST. J. ON DISP. RESOL. 1 (1997). 3. R. Benjamin, The Constructive Uses of Deception: Skills, Strategies and Techniques of the Folkloric Trickster Figure and Their Application by Mediators, 13 Mediation Q. 3, 11 (1995) 4. D. Bowling & D. Hoffman, Bringing Peace into the Room: The Personal Qualities of the Mediator and Their Impact on the Mediation, Negot. J. 5, 10 (2000). 5. For a useful summary of the scientific research on the ways in which human emotion is expressed, in a largely involuntary manner, by facial expressions, see M. Gladwell, The Naked Face, The New Yorker 38 (Aug. 5, 2002). 6. S. Cobb, Creating Sacred Space in ADR, 28 Fordham L. Rev. 1017, 1031 (2001). 7. C. McEwen & T. Milburn, Explaining a Paradox of Mediation, Negot. J. 23 (Jan. 1993); R. Wissler, The Effects of Mandatory Mediation: Empirical Research on the Experience of Small Claims and Common
Pleas Courts, 33 Willamette L. Rev. 565 (1997). For a summary of research on this subject, see S. Goldberg, F. Sander & N. Rogers, Dispute Resolution: Negotiation, Mediation, And Other Processes 394 (3d ed. 2000). 8. C. McEwen & T. Milburn, supra, at 34. 9. N. Welsh, The Thinning Vision of SelfDetermination in Court-Connected Mediation: The Inevitable Price of Institutionalization?, 6 Harv. Negot. L. Rev. 1 (2002). 10. See E. Galton, The Preventable Death of Mediation, 8 Disp. Resol. Mag. 23 (Summer 2002). 11. The extent of this risk may depend, of course, on the type of case; for example, in divorce cases, or other cases where an ongoing relationship of some kind may be at issue, there are greater opportunities for mediation to add value beyond what is possible in a single-issue, zero-sum dispute. 12. This dilemma is not unique, of course, to mediation and faces many of society’s underfunded activities, such as the arts. Copyright 2002 - ABA, Dispute Resolution Magazine. Reprinted with permission. Part I of this article appeared in the Family Mediation Quarterly, Vol. 2, No. 1, Winter, 2003.
David A. Hoffman is a mediator, arbitrator and attorney at The New Law Center, with offices in Newton and Boston. He wishes to thank Prof. Frank Sander, Beth Andrews, Diane DiLeo, Melissa Filgerleski, and Lily Hoffman-Andrews for their comments on a prior version of this article, and Bhavani Murugesan for research assistance. David can be contacted at (617) 439-4700, or by email at <DHoffman@TheNewLawCenter.com>.
Family Mediation Quarterly
SPOUSAL HEALTH INSURANCE RIGHTS AFTER DIVORCE A Quick Guide For Family Mediators By Clare D. McGorrian Going through a divorce or separation is disruptive enough without losing one’s health insurance coverage. Yet without proper planning and advice, this risk is very real for a spouse who relies on the other for health insurance.(1) State and federal laws provide some protections. Yet barriers remain, in substantial part due to misunderstanding of these laws and consequential poor drafting of separation agreements. Many divorcing couples in Massachusetts seek private mediation of their disputes.(2) Family mediators can thus play an important role in helping couples retain existing health coverage, and in guiding them toward new options. The MCFM’s Practice Standards provide support for this role.(3) Using a case example, this article discusses: (i) the legal rights of spouses to health insurance coverage after separation and divorce; (ii) practical steps couples can take to preserve existing health insurance; and (iii) alternative coverage for people who do not have access to group insurance. CASE EXAMPLE Joan and Bob Smith were married for 20 years. Bob works for a large private corporation. The Smiths have a 16 year-old son, Jason. The family has had coverage through Bob’s employersponsored group HMO plan for many years. Under their Massachusetts divorce judgment, which reflects the separation
agreement they reached in mediation, Bob has to keep Joan on his group health plan “as long as there is no extra cost.” Bob also has to provide group health coverage for Jason until he is 18 years old, or, if later, until he is no longer a “dependent” under the terms of the group plan. Less than two months after the divorce became final, Joan learned that her coverage had been cancelled when she sought care at a local hospital. She did not receive any prior notice of the cancellation. 1. Which state laws affect Joan’s right to continue health insurance coverage under Bob’s group plan after the Smiths divorce? Under state law, probate and family court judges in Massachusetts must determine if the obligor spouse (or noncustodial parent) under a support order has group health insurance through an employer to extend to his or her spouse (and children). See G.L. c. 208, §§ 28, 34 (addressing health insurance in final orders for alimony and child support). If group coverage is available, the judge has authority to order the insured spouse to extend coverage to the spouse and children. State insurance laws also allow Joan to remain on Bob’s group plan after divorce. See, e.g., G.L. c. 175, § 110I. Under these laws, when a member of a group health plan divorces (or obtains a judgment of Continued on next page
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separate support), the spouse remains eligible for coverage “at no additional premium” for as long as the member is a participant in the plan.
plan may have an insurance identification card - which can be misleading.
Why is it important to know whether a plan is self-insured? Because the federal 2. Why did the state court divorce Employee Retirement Income Security Act judgment not adequately protect Joan? of 1974 (ERISA) exempts self-insured As in many cases where health insurance employer group plans from state insurance lapses despite language in the divorce laws, 29 U.S.C. § 1144(b)(2)(B), including judgment, the answer to this question Massachusetts’ laws that extend health requires answering another question: Is insurance eligibility to a divorced spouse. Bob’s group health plan insured or self- See Bergin v. Wausau Ins. Co., 863 F. insured? Employer-sponsored group Supp. 34, 38 (D. Mass. 1994); see also Cellilli v. Cellilli, Going through a divorce or separation 939 F. Supp. 72 (D. Mass. 1996). Only is disruptive enough without losing insured plans are subject to the state one’s health insurance coverage insurance laws that health plans are either insured or self- deem a divorced spouse eligible for the exinsured. Some (especially large) employers spouse’s group health plan. offer both self-insured and insured options to employees. With an insured health plan, As it turns out, Bob’s employer-sponsored the employer purchases coverage from an plan is self-insured. Unfortunately, Joan’s insurance carrier (or managed care divorce lawyer (yes, she had a lawyer) did organization, such as an HMO) and bears not know this fact or it’s importance, and no risk for claims. With a self-insured (also therefore did not advise Joan properly. called “self-funded”) plan, the employer Unbeknownst to Joan and Bob, the portion bears financial risk for employee medical of the divorce judgment relating to health claims. Even if the employer only bears insurance had no effect on Bob’s selfrisk up to a limited amount (due to insured group plan. reinsurance or “stop-loss” protection), the plan is still considered self-insured for 3. If state insurance laws do not protect ERISA preemption purposes. See, e.g., Joan, what health coverage rights does Cuttle v. Federal Employees Metal Trades she have? Joan is eligible for continued Council, 623 F. Supp. 1154, 1157 (D. Me. health coverage under the federal Consolidated Omnibus Budget 1985). Reconciliation Act of 1985 (COBRA), 29 Many self-insured employer plans hire an U.S.C. § 1161 et. seq.. Nearly all private insurer or HMO, acting as a so-called employers with 20 or more employees that “third party administrator,” to manage plan offer health plans (whether or not selfbenefits. Thus, a member of a self-insured insured) must comply with COBRA. Family Mediation Quarterly
Governmental employers and church health plans are exempt. However, government workers, including federal employees, generally have COBRA-like rights to continue health coverage under other laws. Under COBRA, the spouse of a plan member is considered a “qualified beneficiary” and may elect to continue coverage for up to 36 months after a divorce or legal separation. Coverage will end earlier only if one of the following occurs: a) premiums are not paid; b) the beneficiary becomes eligible for Medicare; c) the beneficiary becomes eligible for other group coverage that covers all her pre-existing conditions; or d) the exspouse’s employer ceases to offer health coverage to employees. Compliance with the notice requirements of COBRA is critical to ensuring continued coverage. The employee or spouse must notify the health plan administrator of the divorce (or legal separation) within 60 days from the date of the final judgment. Because Joan learned of the cancellation of her coverage within 60 days from the judgment, she can notify the health plan administrator and still elect COBRA coverage. The employee or spouse must pay the COBRA premiums, which can be 102 percent of the amount charged to nonCOBRA plan members. Timely payment of premiums is essential to maintain coverage. There is usually a 30-day grace period for receipt of the premium.
4. What could Joan’s lawyer have done to better protect her rights? Joan’s divorce lawyer should have found out that the plan was self-insured before the divorce was final. Under ERISA, employer health plans must provide beneficiaries with a summary plan description (SPD). The SPD must disclose the name and address of the plan administrator and whether the plan is self-insured. The lawyer could also have sought this information from Bob’s employer or the HMO that acts as a third party administrator for the plan. The following are some key steps for a spouse or her attorney to take before the divorce is final. (i) Get written information about the group plan benefits, including whether the plan is insured or self-insured; (ii) make sure that the plan receives timely notice of the divorce or legal separation; and (iii) provide necessary information to the insured spouse and/or the plan, and execute any documents necessary to continue coverage 5. Did the Smiths’ divorce judgment adequately address the allocation of costs for Joan’s health insurance? The divorce judgment requires Bob to continue coverage for Joan under his group plan “as long as there is no extra cost.” This general language, which is common in separation agreements and divorce judgments in Massachusetts, does not adequately address the allocation of costs between the parties. Even though state insurance laws prohibit the insurer from charging an additional premium to cover a spouse after divorce, this does not mean there will be no Continued on next page
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“extra cost” to the insured spouse. This is because the insured spouse’s employer may lawfully cease to continue contributing toward the non-member spouse’s portion of the premium. (ERISA, 29 U.S.C. § 1001 et seq., gives employers maximum flexibility to design their employee benefit plans, including whether or not to pay any portion of the costs.) While this does not often happen where a spouse and children remain covered, it is a potential risk. When COBRA applies, as in Joan’s case, the non-member spouse will be responsible for payment of the premiums unless the divorce judgment establishes otherwise. If Joan’s lawyer had obtained the necessary information (whether the plan was selfinsured, etc.), she could have asked the probate judge for an order that Bob pay Joan’s COBRA premiums. Furthermore, knowing that the COBRA coverage would end in 36 months, the lawyer could have sought an order requiring Bob to buy non-
state, county or municipal government in Massachusetts, Joan would have the rights under Massachusetts insurance law. G.L. c. 32A, § 11A (state employees); G.L. c. 32B, § 9H (county and municipal employees). See also 42 U.S.C. 300bb-1 et seq. (COBRA-like rights for divorced spouses of non-federal government employees that receive federal Public Health Service Act funding). Spouses of federal employees who get divorced have COBRA-like health insurance continuation rights under the Federal Employees Health Benefits Amendments Act (FEHBA), 5 U.S.C. § 8905a.
7. How would Bob’s remarriage two years after the divorce affect Joan’s health benefits? The right to continue coverage after remarriage under an exspouse’s group plan differs depending on whether state law COBRA Women in particular are at risk of losing or applies. In Joan’s coverage as a result of divorce or case, COBRA governs. Under separation, as they are twice as likely COBRA, the as men to obtain coverage through a q u a l i f i e d spouse’s employer beneficiary has independent group coverage for Joan once COBRA eligibility under the group plan and, ended. It is critical for parties to work out therefore, remarriage of either party does payment details before submitting a not affect continuation rights. When Bob separation agreement or proposed remarries, Joan would thus have 12 judgment to the court, and not to assume months of COBRA coverage remaining, that state laws take care of everything. assuming she pays the premiums and no other event prematurely terminates her 6. What health insurance rights would eligibility. Joan have if Bob worked for a government agency? If Bob worked for a Family Mediation Quarterly
Under state law (i.e., if Bob’s group plan were insured), the Smiths would want to plan for the contingency of remarriage and how it would affect health insurance. If Joan remarries, the right to continue coverage under Bob’s plan will cease. If Bob remarries, Joan may qualify for continued coverage via a “rider” to the family plan or issuance of an individual policy. The Smiths would have to include language specifying these rights in their divorce judgment. The insurer may charge Joan an additional premium for continuing coverage after Bob remarries. (NOTE: If Bob’s plan were insured, it would also be subject to COBRA, and Joan would therefore be entitled to the remaining 12 months of COBRA coverage even if the divorce judgment said nothing about remarriage.) 8. What if Joan has missed the deadline to elect COBRA or she cannot afford it does she have other health insurance options? Joan may be able to purchase non-group insurance. See Mass. Gen. L. c. 176M, § 1 et seq. Also, if Bob had no group coverage to extend to Joan, she could have asked the probate judge to determine whether Bob should provide her with nongroup coverage. The judge would have been authorized to order such coverage if it were available “at reasonable cost.” See, e.g., G.L. c. 208, § 34. Joan is eligible for non-group coverage since she is not enrolled in Medicare or MassHealth (Massachusetts’ Medicaid program). However, if more than 62 days have passed since she lost group coverage under Bob’s plan, the nongroup insurer can refuse to cover
treatment for a preexisting medical condition for six months. Alternatively, Joan may qualify for coverage through a public program. There are a variety of free and reduced-cost programs that provide health coverage to adults and children in Massachusetts. These programs generally have eligibility criteria, such as income and residency. The following is a quick review of some major programs. MassHealth MassHealth is run by the Division of Medical Assistance (DMA). Eligibility for different plans depends on such factors as age, immigration status, disability status and income. Applicants must meet both categorical (e.g., age, disability) and financial requirements. Children’s Medical Security Plan CMSP is administered by the Department of Public Health, and provides free or low cost coverage of preventive and primary care services for uninsured children who are not eligible for MassHealth. Due to state budget constraints, enrollment has been limited recently. Medical Security Plan The Medical Security Plan is open to Massachusetts residents who receive state unemployment benefits, provided family income is below 400 percent of federal poverty level (FPL) (FPL for a family of one is currently $8,860 per year). The MSP either helps pay COBRA premiums or provides direct coverage.
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Free Care Acute care hospitals and community health centers in Massachusetts provide free and reduced-fee medical care to uninsured Massachusetts residents. Full free care is available for applicants with income up to 200 percent of FPL. Applicants with income between 200 and 400 percent of FPL qualify for partial free care. Prescription Advantage Prescription Advantage is open to Massachusetts residents 65 and older, and to disabled people under 65 with income below 188 percent FPL. Enrollment period restrictions apply in some cases. The plan covers most prescription drugs once the enrollee has exhausted other drug coverage. Drug Manufacturers’ Assistance Programs Most drug manufacturers help individuals obtain needed medications that they cannot afford. Each manufacturer applies its own income and other criteria in determining eligibility. Conclusion Maintaining health insurance coverage after a divorce or separation can be challenging due to the array of (sometimes conflicting) applicable laws. Developing a working knowledge of these laws will enable the family mediator to facilitate fair and informed agreements regarding this essential benefit. Footnotes 1. Women in particular are at risk of losing coverage as a result of divorce or separation, as they are twice as likely as men to obtain coverage through a spouse’s employer. See Women’s Health Data Book: A Profile of Women’s Health in the United States (Dawn Misra, Editor, 3d Ed.), Jacobs Institute of
Women’s Health and Kaiser Family Foundation, at 165. 2. See Mediation and Other Dispute Resolution Alternatives, § 4.2.1, John A. Fiske et al., Divorce Law Practice Manual (MCLE, 2000) (one-third of all divorcing couples in Massachusetts avoid the adversarial process). 3. MCFM Practice Standard 3 requires the mediator to make every effort to ensure that there is full and fair financial disclosure and that both parties have sufficient understanding of relevant law to reach an informed agreement. Standard 7 requires the mediator to develop a knowledge base in family law and to constantly upgrade her skills.
Clare D. McGorrian is Senior Staff Attorney at Health Law Advocates (HLA), a public interest law firm affiliated with the statewide advocacy organization, Health Care For All. HLA provides free legal services to low and moderate-income people in Massachusetts who seek access to health care. HLA’s Divorce Judgment and Health Insurance Project uses education, advocacy and law reform to eliminate the barriers to health insurance coverage after separation and divorce. HLA can be contacted at <http://www.hla-inc.org> or (617) 338-5241. Download Clare McGorrigan’s extensive references on health insurance after divorce & separation including a selected bibliography; and the complete text of Massachusetts General Laws, c. 175 § 110I on-line at: www.mcfm.org
Family Mediation Quarterly
BEGONE FROM OUR LEXICON! The Case to Replace “Physical Custody” & “Visitation” By John A. Fiske The words “physical custody” and “visitation” are outmoded. They no longer reflect the myriad parenting arrangements in contemporary family law. Worse, they are harmful words: like a dull saw, they do not do the job, and they cause more harm than good. They no longer define the work of separating parents to plan how to raise their children, and they often create unnecessary conflicts between the parents. From the Massachusetts General Laws to the Child Support Guidelines, our vocabulary needs to change.
condemned as “the non-custodial parent” create untold havoc and resentment in the Probate and Family courts. These unnecessary burdens can be relieved by simply changing the words we use. Every lawyer representing a father or mother arguing over “custody” learns the same astonishing lesson: the client often cares more about being labeled the “custodial parent” than actually having the opportunity to be with his or her child. We tend not to believe these apocryphal stories until we participate in them.
As other states have done, Massachusetts should replace these obsolete words with more accurate and neutral terms, such as “parental rights and responsibilities” or “parenting plans.” These alternatives encourage divorcing parents to describe accurately the logistics of how they will raise their children without passing judgment that one parent is better than the other, or that one parent owns the children, or that one parent is relegated to being a mere visitor in the lives of the children. The words “resident parent” and “non-resident parent” are accurate, non-inflammatory, and easy for parents, judges and others to use. Alternative terms will also benefit family service officers, lawyers, mediators, guardians ad litem, grandparents and other family members, and virtually everyone else involved in developing and implementing parenting plans.
Consider the mother who had been temporarily unable to carry out her parental responsibilities for her young daughter. When she asked the father to change their living arrangements so that the child could resume living with her, he agreed their daughter could resume living with her mother as long as she didn’t resume “having custody.” Alas, the mother would not accept the compromise because the label of “custodial parent” was apparently more vital to her than being with the child.
The distorted status of being labeled “the custodial parent” and the scourge of being
“A word is the skin of a living thought,” wrote Justice Holmes. (Towne v. Eisner, 245 U.S. 418, at 425 (1918).) The word “visitation” fails the living thought test even more miserably than “physical custody.” Divorcing parents are justifiably worried about losing connections with their children, or diminishing their influence in raising their children, or having less and Continued on next page
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less to say about how their children are brought up. Parents relegated to the role of “visitor” have little if anything to say about major aspects of their child’s life. Many parents say, through gritted teeth, “I am not visiting my child.” The term “reasonable visitation” may be family law’s singular oxymoron.
or the like.” No one would want to tell a parent that he or she will have a short stay of friendship or the like when spending time with his or her own child. Unfortunately, that is exactly what Massachusetts General Laws, Chapter 208, Section 31 does in defining a parent having reasonable visitation.
To illustrate the absurdity of using the word “custody” to define the parent with whom a child lives, consider the following definitions of the word from Webster’s Second International Dictionary:
If we amend the law to require parents to prepare parenting plans that allocate their responsibilities for taking care of their children instead of talking about possession of them, we immediately define a more useful conversation for contemplating, discussing and defining the many inventive parenting arrangements of separated parents. Standing Orders 1-97, 1-98 and 199 of the Probate and Family Court require all divorcing parents to attend Parent Education Training because the court has determined that it is in children’s interests to “educate their parents about children’s emotional needs and the effects of divorce on child behavior and development.” Thus, it would be a positive step if the parents were encouraged to approach the logistical questions of raising children in two separate households as a planning question rather than a “custody battle.” The Parental Access Committee of the Massachusetts Bar Association has long encouraged parents to develop parenting plans. The concept of planning how to raise children based on their developmental stages is much more in the children’s best interests than our traditional arguments over who has “custody” of them, or worse, when the other parent gets to “visit” them.
1. A keeping or guarding; care, watch, inspection, for keeping, preservation, or security. 2. Judicial or penal safekeeping; control of a thing or person with such actual or constructive possession as fulfills the purpose of the law or duty requiring it; specif., as to persons, imprisonment; durance; as to things, charge. 3. State of being guarded or watched to prevent escape. Alas, there probably are many children who feel they are being guarded or watched to prevent escape, and arguments over their “custody” do not help them. During a meeting I had with a father and his 12-yearold son about a year after the divorce had become final, the son said, “Dad, you always talk about ‘your time’ and ‘mom’s time.’ Is there ever any ‘my time’?” The word “visit” seems equally inapplicable to describe raising a child. The first definition, in Webster’s again, is “Act of visiting a person or thing; a short stay of business, friendship, ceremony, sightseeing
Maine and Vermont are two nearby states that have abolished the negative words
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“physical custody” and “visitation.” Their statutes require “parenting plans” which define where the child will live, and when each parent shall be entitled to be with the child. For example, Title 19, Section 752 of Maine’s Revised Statutes says in part: “‘Allocated parental rights and responsibilities’ means that responsibilities for the various aspects of a child’s welfare are divided between the parents, with the parent allocated a particular responsibility having the right to control that aspect of the child’s welfare. Responsibilities may be divided exclusively or proportionately. Aspects of a child’s welfare for which responsibility may be divided include primary physical residence, parent-child contact, support, education, medical and dental care, religious upbringing, travel boundaries and expenses and any other aspect of parental rights and responsibilities.” For Massachusetts to follow this example will require amending many sections of our General Laws, court rules and regulations. While the task may be daunting, the work involved is a small price to pay considering the huge benefit for the approximately 25,000 Massachusetts couples who divorce each year, by sparing the parents the argument over who has “physical custody” and who has “reasonable visitation.” In many cases, these amendments will not be difficult. For example, the Massachusetts Child Support Guidelines currently are based upon “traditional custody and visiting arrangements” (Section D). This language could just as easily refer to “traditional parenting plans” or “traditional parenting arrangements.” Another example is the
manner in which Maine adopted the Uniform Child Custody Jurisdiction Act in Maine by simply saying: “The jurisdiction granted by this section to make or alter an order concerning parental rights and responsibilities with respect to a minor child is limited by the Uniform Child Custody and Jurisdiction and Enforcement Act, if another state may have jurisdiction as provided in that Act.” (Maine Revised Statutes Annotated, Section 1657, Subsection 3.) At its annual Family Law Conference in 2003, Massachusetts Continuing Legal Education devoted its first panel to the question “Is It Time to Abolish the Word ‘Custody’ in Divorce Proceedings?” This article offers one answer. We must overcome apathy, inertia and the apprehension of how hard it will be to replace the words “visitation” and “custody” as applied to children. We simply need to decide, as Massachusetts did in the early 1950s when it became the second state to adopt the Uniform Commercial Code, that all the work is worth the effort. The task is an important job, well worth doing, which will result in a framework for parents to plan how to raise their children instead of forcing them to argue about who owns or has a short stay of friendship with them.
John A. Fiske is a partner at Healy, Fiske, Woodbury & Richmond, a Cambridge firm concentrating in family law and mediation. He can be contacted at (617) 354-7133, or by email at <jadamsfiske@yahoo.com>.
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18 LAWYERS & MEDIATION: Their Role as Consultants By Lynda J. Robbins
One of the many reasons that clients are drawn to mediation is the perception that attorneys create more problems than they solve. However, while that may sometimes be true, the divorce clients will usually benefit from involvement of lawyers in their negotiations and trip to the courthouse. Attorney/mediators have an extra burden of being expected by clients to give them legal advice and further allowing them to skip the step of bringing in the “troublesome” lawyers. As we all know, attorney/mediators can inform mediation clients about general legal issues that need to be addressed by the parties, but they cannot give specific legal advice. As a result, clients are encouraged by mediators to seek advice of counsel at all points in the mediation process. Clients often have a consultation with an attorney before beginning the mediation process. The purpose of the consultation is to learn about divorce law in Massachusetts and how it applies to his or her specific circumstances. Clients then enter mediation better prepared. They know what they need to address, the information they must produce and what to ask the other party to supply. They have a general idea of the child support they can expect to receive or to pay, suggestions for property division, an understanding of parenting plans and what issues need to be sorted through with regard to their children. Parties also learn about pension plans, health insurance issues and college cost apportionment. An informed client makes the mediation process smoother.
The clients who consult with attorneys before the mediation begins usually continue to consult with the attorney periodically throughout the process. This helps the client to evaluate proposals and formulate approaches to issue. Clients who do not have a pre-mediation consultation can, nevertheless, benefit from working with an advocate during the mediation process. Once the parties reach an agreement on the issues and have a memorandum of understanding or draft agreement, they should review the agreement with their own attorney to be sure all issues have been addressed, the parenting plan looks workable and the money issues have been resolved equitably. One of the worst experiences for the clients, and one that reflects very badly on the mediation profession, is going to court and having their Agreement rejected by the judge because of an oversight or lack of understanding of what Massachusetts General Laws Chapter 208, Section 34 requires. The attorney can also assist the client in filling out the myriad of forms required by the Court and in securing a hearing date. Clients need to understand that, if only one attorney is hired to help with this part of the process, the attorney can only represent one party. Some clients have the mistaken belief that, because they have an agreement, one lawyer can represent them both. Under Massachusetts law, this is unethical. Some mediators will assist their clients in this part of the process, and some will go to court with
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their clients, but the advisability of attorney/mediators doing this is questionable because of the confusing perceptions the clients may have about the mediator’s role. Non-attorney mediators may be perceived as participating in the unauthorized practice of law. The pros and cons of the mediator assisting clients with the actual court process are best left to another discussion.
wants the reassurance of the attorney, he or she must be prepared to give the attorney the materials, time and money required to allow the attorney to give informed advice. A “free consultation” usually does not cover the depth of materials or allow for the time to do a responsible review of an individual situation. The retainer needed by the consulting attorney will depend on the complexity of the situation and the sophistication of the client relative to the financial issues.
If clients do not have an attorney when they start the mediation process, they may sometimes ask the mediator for referrals. The mediator can give several names to the Through the mediation process, documents clients, and/or refer them to the should have been exchanged voluntarily, Massachusetts Council on Family Mediation often accompanied by spreadsheets and web site to look for mediators who are also other explanatory materials, all of which lawyers, or the mediator can refer the clients makes the attorney’s job faster, easier and to other sources. The mediator probably has his or her own list of An informed client makes the “mediation-friendly” attorneys. mediation process smoother Such attorneys will still advise individual clients and advocate for them but who will try and work within more efficient than the discovery process in a the mediation process. These are attorneys litigation situation. The mediation process who understand that “winning” is not therefore saves the client money as well as necessarily about who gets the most, but time. If properly explained, the client should about the quality of life for the parties and appreciate the advantages to the process, as their children after the divorce. opposed to: “why am I going to mediation if I still have to pay an attorney?” The important point for clients to remember is that the consulting attorney still needs to Lawyers and mediators can work together to review and evaluate financial materials in provide the best coverage of the clients’ order to properly advise the client. This needs. They are not mutually exclusive. The review takes time, and the clients are attorney is one of many tools employed in expected to pay for the attorney’s time. the mediation process. Clients may need to When clients are motivated to spend as little utilize some or all of the resources available as possible, the need for valuation sometimes such as financial planners, counselors, alienates clients who do not understand the pension experts, appraisers as well as process. However, the attorney cannot give attorneys. Clients should be encouraged to reliable advice without first reviewing the background materials. Because the client Continued on page 24
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20 “WHAT IF?” By Marilyn M. Levitt
I was pleased to be asked to submit an illustration to the MCFM Family Mediation Quarterly. I read the fall FMQ to better understand the MCFM. This seemed the most logical way to set about getting an idea that would visually express the goals of family mediation. That process produced another, wholly unexpected consequence. Little did I know that I would be going back in time, to 1937, when I was ten years old. I found myself thinking, “What if?” What if family mediation had been available when my parents got divorced? How different the world was then. Society was not that comfortable with divorce. It was a word to be whispered, tainted with shame, filled with secrets. Children were to be seen and not heard, never considered present even during heated discussions. Explanations were not offered, and children certainly did not interrupt to ask questions. Bits and pieces of overheard conversations made for confusion, and the behavior of grown-ups was often frightening. It was not clear what to believe, and there was no one to ask. There were angry words, silences filled with tension, and nothing made sense. But to a 10-year-old the shame, the fear and the guilt cut deeply. Sixty-five years later it is still remembered. Who to side with? Do I need to choose between Mother and Father? Was it my fault? What do I say to my friends? I look back on that terrible time and recall wishing, with all my heart, that someone
had noticed me and helped me to understand, and to feel loved and not abandoned and ashamed. And that brings me back to “What if?” In the fall FMQ I read “Post-Divorce Parenting: A Baker’s Dozen of Suggestions for Protecting Children,” by Patricia Papernow. I could see that the emphasis was on helping the parents and the children to cope, and most of all, to recognize how the behavior of parents going through this difficult time in their lives can impact a child’s future. I place no blame on my parents. They lived at a time when there was no one there to help them. They were unaware of how their actions hurt me. If they had had some alternative like mediation, perhaps the pain for all of us would have been eased. I found myself reliving the sadness for the 10-year-old I once was, and for my Mom and Dad who, in 1937, would have benefited so much from the help offered by family mediation. But there is a happy ending. Now I know that somewhere there is another 10-year-old whose family is getting help, and that she will never have to ask herself, “What if?”
Society was not that comfortable with divorce. It was a word to be whispered, tainted with shame, filled with secrets.
DIVORCE MEDIATION HELPS KIDS AND PARENTS Marilyn M. Levitt is a retired professor emeritus of art history, whose graphic illustration appears on the next page. She can be contacted by email at <mlevitt@attibi.com>.
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Massachusetts Council on Family Mediation Visit us on-line at www.mcfm.org Use our mediator locator to find a trained mediator near you
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22 THE BENEFITS OF SELF-REFLECTION IN YOUR MEDIATION PRACTICE By Oran Kaufman
It is not uncommon in our busy practices to overlook the benefit of spending time to reflect on mediations we have conducted, and mediations that are coming up. There are lessons in every mediation, whether the mediation was successful or not. Taking the time to think about and evaluate mediation sessions improves our skills as mediators and offers many lessons. Ultimately this helps us provide better services to our clients.
mediation, expressing her anger and sorrow about the marriage ending. John managed to mention that he had a proposal that he thought was very generous, which would “take care” of Jan’s needs.
Approaching each mediation as a potential lesson will undoubtedly improve our skills. When I have taken time to reflect on a mediation, I have almost always learned something that proved valuable in my later practice. Here is an example.
Several weeks later we met for our second session. Once again, Jan spent quite a bit of time discussing her feelings, and focusing on her fragile emotional state. When I looked over at John I could see that he was starting to get agitated. I was afraid that I was losing him. It was then that I made my fatal mistake. At a break in the action (that is, when Jan took a breath from describing her woes), I suggested that John had been waiting to share his proposal, and asked if it would be all right if he did that. Reluctantly, Jan agreed. From an objective standpoint, John’s proposal seemed to be extremely generous (maybe representing some guilt that he was still feeling). Nevertheless, Jan could not see beyond what I had just done. After two minutes of discussing his proposal Jan stood up and angrily said “I knew I should not have hired a male mediator,” and stormed out of the room.
John and Jan were in their mid 40’s. They had been married for 20 years and had four children. John was an executive at a large corporation who made approximately $200,000 per year. Jan was a full-time housewife who John had left for a younger woman. When they arrived Jan was still smarting from John’s rejection. She was extremely angry and emotionally raw. Jan took up most of the air-time in the first
When a client storms out there is a great impetus to reflect on what happened. Am I a failure? What did I do wrong? Is it me or them? I could not stop thinking about what went wrong. I played the mediation over and over in my head. I discussed the case with other mediators. I thought about what I had been taught. Had I violated any of the basic principles? What could I have done differently? Would it have made a difference?
Self-reflection in mediation is critical in many ways and on many levels. We can learn about ourselves and about our clients. We can also learn about what works and what does not. Unfortunately, we often forget, or simply do not take the time to think about the mediation to come, or the mediation that has just occurred.
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While there is no “right” or “wrong” in these situations, over time I developed a theory of what might have worked better. On reflection I realized that I had vastly underestimated the importance of Jan’s need to express her feelings. In my concern about “losing” John (by not providing him adequate air-time), I lost sight of Jan’s need. What I should have done then became clear.
difficult situation. While every mediation involves different personalities and fact patterns, each mediation has common denominators. We should build in thinking about the mediation into each mediation. Self-critically, I am the first to admit that I do not do this after each meeting, particularly when mediation goes well. But here too a mindful inquiry can yield valuable lessons. Why did it go well? What made it go well? Was it just that the parties were easy going and agreeable? Was it my presence? Was it the time of day?
It would have been more effective for me to verbalize my internal dilemma and place the problem on their shoulders, where it rightly belonged. I might have said “I have a real dilemma here. Jan, it is obvious that it is Here are some things we can do to assist important for you to talk about how this is ourselves in this process. effecting you emotionally. John, it is clear that you have thought about the financial Take five minutes before each mediation to piece, and that you want to discuss a proposal which you There are lessons in every have come up with. So, how would the two of you like to mediation, whether the mediation proceed?” Had I done that, I was successful or not would not have decided the direction of the mediation. Instead, I would think about what happened at the last have empowered them to decide, thus session, and what you plan to do during this encouraging their control of the process. mediation. You can start the mediation several minutes late, and explain to the Several years later I ran a workshop where I parties that you take the time to gather your was able to test my hypothesis. I role- thoughts before beginning. Clients should be played the facts of this case. We first acted informed that they will be charged for that out the role-play scripted the way I had time. Alternatively, or in addition, take originally conducted it. When we role- several minutes at the end of each session. played the same scenario using the alternative method - and it worked! At least Send a memo to the clients at the end of each in the role-play it did. Soon after I had a mediation session outlining out what was similar situation occur in another mediation. discussed, including tentative agreements. A This time I was ready to test my revised memo can outline their homework, and approach in real time, and again the strategy yours. It can help focus a critical review of worked. what has happened in the meeting. I have This is just one example of developing a better intervention as a result of evaluating a Continued on next page Spring 2003 • Vol. 2 No. 2
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found it best to prepare the memo shortly after each mediation. I charge the clients for this time, and I inform them that I will do so. Clients have universally found these memos to be very useful, as have I. They help in terms of thinking-out each case, clarifying what went on and what is planned for the next mediation. Writing out a list of questions for yourself as checklist may also help. Develop a mentoring relationship with someone if you do not already have one. Talk to your mentor about particularly difficult mediations. Do not be afraid to do this. Many experienced mediators will be pleased to help. Often, this is as much a learning experience for them as for you. Establish a peer supervision group. Discussing your cases with other mediators can be incredibly helpful. Often, just talking about a case helps you think it through more clearly. Other mediators may also provide you with alternative perspectives, approaches and ideas. Take your own pulse. Are you relaxed or stressed out during the mediation? Are you focused on the couple in the room with you, or are you thinking about what you need to buy for dinner tonight? A recent experience illustrated how critical it is to be completely focused on the mediation. I had just gotten a new puppy which I was bringing to work each day. When the puppy was small he slept most of the day, so I thought I would bring him into the mediation. I thought the puppy might help create a relaxed atmosphere. The parties were thrilled with the puppy’s presence. However, I was so distracted by my puppy that I could not fully
concentrate on the couple. Although the puppy behaved, I was worried about what the puppy was doing. In other words, I was not present. While my clients did not particularly seem to care, I felt like I could not justify charging them for that mediation. Make a date with yourself to reflect about your practice occasionally. Whether it be quarterly or once a year, make a time in your calendar to reflect about how your practice is going. Are you happy with the direction of your practice? Are you happy with your office setup? Is there anything that would make it more welcoming? Are your documents up to date? I find that attending conferences is a wonderful way to get reenergized, get new ideas and reflect on your practice. Tape record your thoughts after each mediation, or write them down. We deal with such fascinating people. It is impossible to keep all the information in our heads. As a lawyer, when preparing for a trial, I always prepare an outline, including my theory of the case and what I want to accomplish. Mediation is no different. Recording your thoughts helps you sort out the various things happening at the mediation. I visualize it as a superhighway. There are numerous roads and paths intersecting at various levels. It is hard to keep track of all of them without some sort of map. I am often amazed that two people voluntarily agree to come and sit with a total stranger to discuss intimate and incredibly difficult personal issues. I have so much respect for their decision to do so. I am ever-cognizant of the fact that
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for me it is a job, but for them, it is their life. As mediators, we are given the privilege of being invited into a couple’s life and relationship. With that privilege comes a responsibility. Our responsibility includes taking time to reflect on each mediation. Our responsibility is also to keep striving to understand what goes on in each individual mediation as well as in our general practice, so that we can
provide our clients with the highest quality services.
Oran Kaufman is an attorney mediator. He can be contacted at (413) 253-3900, or by email at <okaufman@bfbk.com>.
“A wonderful fact to reflect upon, that every human creature is constituted to be that profound secret and mystery to every other.” Charles Dickens
Continued from page 18 Lawyers & Mediation
consult with any or all resources relevant to their particular situations. The divorce process is one that will impact the client’s life forever so the client should be sure to spend the time and money necessary to be sure that the result is equitable and workable.
Lynda J. Robbins is an attorney/mediator who practices in Chelmsford. She can be contacted at (978) 256-8178, or by email at <LJRobbesq@aol.com>. Spring 2003 • Vol. 2 No. 2
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26 PAUSING AT THE DIVORCE DOOR Mediation Decision Making for Relationships in Crisis By Janet Miller Wiseman
Adriana and Peter Gordon had been married 19 years, and were still living together when Adriana appeared in a lawyer’s office to discuss the possibility of divorce. After finding a room-service-for-two charge on Peter’s hotel bill, he admitted that he had been having an affair with his secretary for about a year. Adriana was shocked. While far from perfect, she had recently experienced more satisfaction with their relationship. Adriana believed their marriage could be saved, certain that it was more solid than his new relationship with a younger woman. But Peter wanted a divorce. Soon the Gordons began divorce negotiations with two attorneys which dragged on for over two years. Clients and their attorneys often find themselves frustrated with the time consumed by such negotiations. Couples in divorce often have different ideas for their future relationship. The process becomes more perplexing when they have changes of heart as they negotiate. Clients whose ambivalence about divorce motivates them to prematurely seek information they are unprepared to use present unique challenges. In an effort to clarify attitudes and feelings, such clients frequently seek interventions that have an inherent bias toward saving the marriage, like marriage counseling or couples therapy. Decisions About Directions Mediation Therapy, or Short Term Decision Making Mediation, is different. It is not geared towards saving the marriage. It is designed
for people in relationships who wish to explore their future in a neutral setting. Mediation Therapy helps indecisive couples (or those with conflicted goals) to make joint decisions. After answering a series of probing questions about themselves and their relationships, they may decide to work further on their relationship, to reconcile, or to separate or divorce. As they consider and reconsider what is best for them individually, as a couple, and as a family, they are pausing at the divorce door. Mediation Therapy is a rational process that encourages deep emotional expression. It is structured and time-limited, generally consisting of eight to twelve one hour sessions. Mediation Therapy can provide professional help for people who are very angry with one another despite deeply mixed feelings, or who wonder about the needs of their children when planning a separation or divorce. “The availability of Mediation Therapy (or decision making using mediation) provides a means to shunt clients in this stage of the divorce process to a more effective forum” explains John Fiske, a partner at Healy, Fiske, Woodbury & Richmond, in Cambridge. “The divorce lawyer will have a far less difficult case if the client knows what he or she wants, or is ready for legal steps to end the marriage.” Following Mediation Therapy, if clients decide to formalize a separation or divorce, they return to their attorneys with a more
Family Mediation Quarterly
confident direction. With clients not distracted by secondary emotional agendas, counsel and/or divorce mediators are better able to negotiate on their behalf. Decision is the Goal In Mediation Therapy, the goal is for the couple to reach a concrete decision, or series of decisions, about the future direction of their relationship. Unlike marriage counseling or couples therapy, the goal of Mediation Therapy is not to improve functioning within an intact relationship. Paradoxically however, an improvement in the relationship and parenting often happens as a by-product of this intervention. Thus it is not uncommon for a couple to find their relationship enhanced, and their parenting skills honed through Mediation Therapy.
Some couples begin Mediation Therapy still living together, while others have already separated. At the outset, couples need to accept their need for assistance in clarifying their future direction. That may not be easy to do. They need to be committed to resolving their ambivalence, to end their status of being in limbo. Mediation Therapy is not restricted to partners in relationships. Individual adults have used the process for a variety of reasons. Some struggle to decide the best living arrangements for elderly parents, or to settle the estate of a parent who has died. Others seek clarification for special-needs children, or children in crisis. Through Mediation Therapy, individuals come to “own” and take responsibility for their needs. At times when people feel passive, helpless or dependent, when it may seem easier to let
Since 1979, almost two-thirds of the couples starting the process in my practice have begun with The goal of Mediation Therapy is divergent goals. In general, one wants to save the marriage while not to improve functioning within the other hasn’t yet decided an intact relationship whether the relationship can survive and provide a place in which to grow. events or other people make decisions for In the remaining third of the couples in my them, Mediation Therapy can help them Mediation Therapy practice, both individuals reestablish control over their lives. state the goal of their intervention as wanting to make a decision about their future direction. During Mediation Therapy each client is given equal time and attention. Each client is Despite their differences, it is vital for helped to see what he and she wants and couples in Mediation Therapy to honestly needs in a long-term relationship. As express their real goals. In marriage nonproductive discussions are redirected, counseling and couples therapy, one party partners learn to appreciate what each of often has a hidden agenda to end the them cannot tolerate. Rather than blaming marriage while undertaking the process each other, clients are helped to acknowledge with seemingly positive goals. Examples the difficulties and strengths each brings into can range from a wish to pacify parents, or Continued on page 31 to give the relationship “one more try.” Spring 2003 • Vol. 2 No. 2
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28 DOMESTIC RELATIONS: RULES UPDATE
REFLECTIONS ON FORGIVENESS
By Fern Frolin
By Jay Uhler
The Rules Committee of the Probate and Family Court has submitted to the Supreme Judicial Court proposed rule amM. c Relations Procedure. Most interesting for mediators is newly proposed Supplemental Rule 412. Rule 412, if adopted, will create a new pleading and streamlined procedures for uncontested modifications of child support judgments. The proposed 412 procedure will permit parents to jointly petition for an agreed child support modification. The new rule envisions approval in many cases without court appearance by either of the parties, although the Probate and Family Court justice who reviews the joint petition will have discretion to call the parties for hearing. As proposed, Rule 412 requires the parties to submit four documents: the Joint Petition for Modification of Child Support; fully executed Financial Statements with W-2s and 1099s attached; a “complete and accurate” Child Support Guidelines Worksheet; and a Proposed Judgment for Modification. Within fourteen days of filing, the court will either allow the
Modification Judgment without hearing, or notify the parties that the matter has been set for hearing. While each judge will employ his or her own criteria for determining whether to require a hearing, some predictable factors may affect judicial decisions concerning when to dispense with a hearing. Such factors include whether the parties’ income is within the current presumptive guidelines limits of $100,000 for the noncustodial parent, or $135,000 combined income; whether the proposed modification deviates from the guidelines calculation; and whether signatures of attorneys on the financial statements indicate assistance of counsel in the process. After publication of proposed Rule 412 (and other proposed amendments to the Rules of Domestic Relations Procedure) and a period of public comment, the Supreme Judicial Court will adopt, reject, or modified the new rule.
Fern Frolin is an attorney/mediator.
PENNY WISE/POUND FOOLISH
Forgiveness is an essential ingredient for conflict resolution that is often praised in theory while resisted in practice. Lack of forgiveness fertilizes conflict. As mediators, it is useful to examine the process of forgiveness to better understand its relevance to our work. It is especially relevant to who we are, because our attitudes and our energy create the crucible for conflict resolution.
I believe that forgiveness can occur with or without apology, or the repentance of another party. Forgiveness benefits both the offender and the person doing the forgiving. Bitterness eats people alive. Letting go of the negative emotional attachment to the people who have hurt you requires self-love, and is by far the healthier alternative.
The seeds of forgiveness are planted by the mediator when s/he approaches the conflict in a non-judgmental manner, respecting all parties to the dispute. When we appreciate that abrasive and hostile behaviors are often dysfunctional coping mechanisms for some people in conflict, we can be more compassionate with their distress. While we may need to set limits on their actions to maintain safety in the room, compassion enables us to be more gracious in the way that we set those limits.
Forgiveness also shifts the dynamic energy of a conflict. When people replace their hostility and judgment with acceptance and openness, their new receptivity transforms the emotional environment. This encourages other parties to alter their attitudes and actions, opening the whole process to more creative resolutions.
Forgiveness is particularly relevant to family mediation because it helps parents nurture ongoing relationships. Forgiveness is also important to childless couples in mediation because their separation affects many family members. So what needs to take place for forgiveness to occur? Some say that forgiveness can only happen when the offender repents for the offense. Others insist that repentance must be coupled with retribution. As every mediator knows, these may not, and often do not, happen.
Mediators work to help people move from conflict to peace. When we bring an attitude of acceptance and forgiveness to the table, it increases the likelihood that peace will occur.
Jay Uhler is an organizational and clinical psychologist, an ordained minister and the Facilitator for the Peervision Case Conference in the Program on Negotiation at Harvard Law School. He is the author of “How to Make Friends With Your Feelings.” Jay can be contacted at (800) 266-5529 or JRUhler@att.net.
According to “Bride’s Magazine,” couples in America spend $42.4 billion dollars annually on weddings, with an average, per couple cost of almost $19,000.
“To err is human, to forgive, divine.”
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30 ADR COURT NEWS by Christine W. Yurgelun
As you might imagine, recent news concerning the state budget and the implications for Trial Court funding are of great concern to those who work in, and with, the Probate and Family Court. Recent news has been “mixed.” As announced by Daniel Winslow, the Governor’s Chief Legal Counsel, at a Dispute Resolution Awards ceremony hosted by the Massachusetts Office of Dispute Resolution at the State House on February 26, 2003, the Governor’s proposed budget provided for full funding of both permanency mediation and certain other court-connected ADR service providers. We were pleased to receive this clear message of support of ADR from the Executive branch. However (and disturbingly), ADR programs were recently identified as possibly not included in the “core functions” of the Trial Court. We continue to make every effort to share information with legislators and those who might advocate for funding about the manner in which ADR can be of great value in improving case flow throughout the Trial Court and, in particular, in the Probate and Family Court. The following information underscores opportunities to benefit from incorporating ADR screening and services into an integrated case management system: • The number of cases filed in the Probate and Family Court has increased over the last several years and is presently [that is, FY 2002] 154,974 cases. (NB: This is in contrast to the trend, system-wide, of the overall decreasing number of filings.) In FY 2002, there were 89,963 motions for temporary orders processed in the Probate and Family Court, and this number is not included in the reporting of the total caseload. • The nature of the Probate and Family caseload has changed dramatically over the last two decades from primarily probate cases, which are paper driven cases with a certain life and minimal court appearances, to primarily domestic cases which are people-driven, have an uncertain life, and involve multiple court appearances. • From FY 1997 to FY 2002, the number of Complaints for Contempt increased thirty-two percent (32%), from 16,482 to 21,675 and the number of Complaints for Modification increased sixty-eight percent (68%), from 13,344 to 22,433. • We estimate that at least 100,000 litigants appear in the 14 divisions of the Probate and Family Court each year without the assistance of a lawyer in any aspect of their case. • From FY 2001 to FY 2003, our appropriation was reduced by $1,510,521. Our staff has been reduced by 78 through layoffs, attrition and early retirement, which reflects a 12% reduction of our workforce.
Family Mediation Quarterly
When mediators can reality-test with litigants so that the litigants will have full understanding of their agreements’ implications, there will be consent which is more informed, and there will be clearer expectations of performance obligations pursuant to agreements’ terms. To the extent that the utilization of mediation produces complete and durable agreements which, when incorporated into court orders, anticipate possible future conflict, the reliance on the court for modifications or enforcement may be obviated. Then the resources of the court can be more available for those issues — and those cases — which are most appropriately resolved through litigation. Please note: a) The Administrative Office of the Probate and Family Court has moved to: 2 Center Plaza; Boston, MA 02108. The telephone and fax numbers remain unchanged. b) The Norfolk Division of the Probate and Family Court has relocated to Canton from Dedham. The new address (as of April 7, 2003) is: 35 Shawmut Road; Canton, MA 02021. The new telephone number is (781) 830-1200 and the new fax number is (781) 830-4310. c) In response to inquiries and as part of an overall effort to provide more information to the public, the Probate and Family Court Department has been working on Frequently Asked Questions (FAQ’s) which will be posted soon on the Probate and Family Court Self-Help Center web site at www.state.ma.us/courts/courtsandjudges/probateandfamilycourt/selfhelp.html. Suggestions for additional links are welcome.
Christine W. Yurgelun is an attorney who coordinates court-connected dispute resolution services for the Massachusetts Probate and Family Court. She can be contacted at (617) 788-6600.
“How little you know about the age you live in if you fancy that honey is sweeter than cash in hand.” Ovid 43 BC - AD 18
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MCFM News
Continued from page 26 Pausing At The Divorce Door
their intimate relationships. As both clients learn to take responsibility for themselves, they reject characterizations like “victim” and “victimizer.” When a client is confronted with a major, life-changing decision and feels acutely conflicted; or when a divorce process becomes snagged by hidden emotional agendas, Mediation Therapy can provide an effective, decision-making intervention.
Janet Miller Wiseman, LICSW, has been divorce mediator for 23 years. She is the author of Mediation Therapy, Short-Term Decision Making for Relationships in Conflict, which is available through Amazon.com.. She can be contacted at (781) 861-9847, or by email at <millerwise@aol.com>.
ANNUAL MCFM MEETING & ELECTIONS On June 11, 2003, MCFM will hold its annual meeting and elections at 2:00 PM at the Concord District Court. After the election an educational program for members and their guests will be presented by Sandford Portnoy, Ph.D. See www.mcfm.org for details and driving directions.
MEDIATION PEER GROUP MEETINGS Merrimack Valley Area
“A Roman divorced from his wife, being highly blamed by his friends, who demanded, “Was she not chaste? Was she not fair? Was she not fruitful” holding out his shoe asked them whether it was not new and well made. “Yet,” added he, “none of you can tell me where it pinches me.””
Please join us for our (almost) monthly mediator peer support group. We are a group of family law mediators who have been meeting for approximately three years. At some meetings we invite guest speakers to address a topic that helps us improve our mediation skills. Sometimes the topics relate to substantive issues, and sometimes to mediation techniques. At most meetings, we address questions from the members about problems they may be having in their own mediation cases. Our discussions are lively and informative. The criterion for membership is a desire to learn and share. We invite interested mediators to come to our next meeting. The meetings are held at 8:15 AM at the office of Lynda Robbins, 11 Summer Street, Chelmsford. Please call Lynda at (978) 256-8178 or Karen Levitt at (978) 458-5550 for information or directions.
Metro-West Area Open to all MCFM members. Monthly meetings are (usually) held at 9:30 AM at Janet Weinberger’s home, located at 206 Windsor Road, Waban. Please call (617) 965-4432 for dates and driving directions.
Plutarch AD 46 - 120
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MCFM News
Announcements EXTRA COPIES
The cost of additional FMQs is $5.00 each for members, and $7.50 each for non-members. Please mail requests for additional copies to DeLaurice Fraylick, 23 Parker Road, Needham Heights MA 024942001, and enclose a check made payable to MCFM. GIVE THE FMQ AWAY
STAYING HEALTHY: A Guide to Keeping Health Insurance After Divorce Health Law Advocates (HLA) and Attorney General Tom Reilly are pleased to announce a new booklet: “Staying Healthy.” Since 1996, HLA has fought, to eliminate barriers to staying insured after divorce, and to better educate everyone involved in the divorce process. Staying Healthy provides useful information on health insurance rights, options and resources. To request a copy, call Health Law Advocates at (617) 338-5241 or (800) 272-4232 ext. 2980, or e-mail HLA at info@hlainc.org. Also available on-line at www.ago.state.ma.us/pubs/stayinghealth02.pdf and www.hlainc.org/public/StayingHealth0228.pdf.
UPCOMING EVENTS NEW & FREE! Based on our initial success, the MCFM is in the final stages of planning a 2nd, all-day mediation conference, on Friday, October 24, 2003. The program will be held at the Wellesley Community Center. Lunch will be included and written materials will be provided. Space constraints require registration to be limited to 100. Visit www.mcfm.org on-line for the latest list of presenters and programs. OCTOBER 24TH - SAVE THE DATE!
CONGRATULATIONS BETTE & JANE! All guardians ad litem certified in Catagory F (GAL investigators and GAL next friends) must attend a free training session sponsored by the Probate & Family Court in order to receive further appointments. The session is offered by MCLE, which has requested permission to include the winter, 2003 FMQ article “PC From A to Z” by Bette Winik, Esq., and Jane Appell, Ph.D., in its written materials.
Family Mediation Quarterly
MASSACHUSETTS COLLABORATIVE LAW COUNCIL, INC. The MCLC offers legal representation to people in conflicts who share a commitment to resolving disputes without litigation. To find out more, or to locate a collaborative lawyer near you, go on-line at <www.massclc.org>
NEW BEGINNINGS Wellesley Hills Congregational Church 207 Washington Street Wellesley Hills, MA 02421 (781) 235-8612 email: feelstress@aol.com New Beginnings is a singles support group for separated, divorced, widowed and never-married members dealing with the loss of a relationship. Groups meet 52 weeks a year, every Thursday evening from 7 to 9:15, including holidays. Annual dues are $30.
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Announcements
Letters
TWO COURSES FOR MEDIATORS & THEIR CLIENTS Developing a Safer, Steadier Retirement Program Taught by Jerry Weinstein Saturday, May 31, 2003, from 9:30 AM to 12:30 PM Divorce In Massachusetts: With or Without a Lawyer Taught by Jerry Weinstein and Oliver Fowlkes Saturday, June 28, 2003, from 9:30 AM to 12:30 PM Information and Registration: Cambridge Center for Adult Education 42 Brattle Street Cambridge, MA (617) 547-6789 www.ccae.org LEGAL WATCH This summer, the Supreme Judicial Court is due to rule on the question of whether the state’s ban on same-sex marriage is constitutional. An amendment to the constitution to define marriage as only between a man and a woman is also pending. The earliest it could appear on the ballot is 2006.
CAVEAT MEDIATOR EST! A full-page ad in the winter, 2003, ACRESOLUTION magazine entitled “Diary of a Frustrated, Starved Divorce Mediator” wins the snake-oil prize of the season. Selling guaranteed secrets for instant financial success, David Musselman offers himself as living proof that any mediator can earn a six-figure annual income. “Before I was a mediator I cleaned carpets, washed windows, and sold computer hardware.” An attractive logo of a dove with handshake wings lends an aura of legitimacy to his Utah based “Mediate America, Mediators Making Money Seminars.” His free CD comes with a crisp, one dollar bill, and promises of tens of thousands to follow. Also included are 13 pages of non-stop hype leading up to the hard sell: a BASIC package at $697, or the DELUXE package for only $897. See for yourself: (877) 329-6454. LET THE MEDIATOR BEWARE!
Family Mediation Quarterly
Email a letter to ther editor: wallerstien@socialaw.com
To the editor: Your editorial in the winter FMQ talks about Collaborative Divorce (CD). Your observations with regard to the CD team approach have merit. My concern is that the CD approach is only one approach to collaborative law. As you mention, the CD model involves lawyers, financial specialists, divorce coaches and child specialists. Those who practice this method, believe strongly that it is the right approach. However, I am concerned that your editorial gives the impression that this is the way collaborative law is practiced. Not so in all cases. Here, the Massachusetts Collaborative Law Council (MCLC) acknowledges the benefits of collateral professionals. However, we do not require our clients to hire a team. We approach each case individually and encourage clients to use whatever resources would be helpful and available in a given situation. Financial considerations are also part of the decision-making process. In addition, a number of collaborative law cases in Massachusetts have been aided in a successful resolution through the use of mediators to address limited issues that the parties may need extra help resolving. Mediators are a valuable resource to our collaborative clients, especially in child-related matters. While I acknowledge that there is some professional jockeying for clients, a review of the members of the MCLC shows that most of us, especially in the family law area, are also trained mediators. I do not believe that Massachusetts collaborative law practitioners share the view of some of their colleagues in other jurisdictions that the choices are mutually exclusive. In fact, because we acknowledge the value of mediation as a problem-solving tool, we are in the process of discussing whether mediation training should be a requirement for membership in the MCLC. Collaborative law is another approach to resolving conflict. For some clients, having an advocate by their side throughout the process makes a difference, and in these and other cases, collaborative law may have advantages over mediation. However, the processes are not mutually exclusive. When I am helping a client decide how to approach a case, I talk about the pros and cons of collaborative law and mediation, and try and assist the client in choosing which approach works best in his or her individual circumstances. So, while I agree with your comments about CD, specifically, I want to emphasize that this is not the “party line” of collaborative law practitioners. I hope all your readers will visit the MCLC web site at <www.massclc.org>, and join with us in serving the divorcing public through the use of all appropriate resources. Lynda J. Robbins, President, Massachusetts Collaborative Law Council, Inc.
Editor’s note: “Collaborative Divorce” and “Collaborative Law” are worlds apart. My disdain for Collaborative Divorce is in stark contrast to my support for Collaborative Law.
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Editorial
Join Us
Modest Proposals When it comes to non-adversarial, no-fault divorce in Massachusetts (G.L. c. 208, § 1A), there are a finite number of court forms which are always required. Some, like the joint petition, the financial statement, and the child support guidelines worksheet are uniform, and state-wide. Others, like the affidavit of irretrievable breakdown, the certificate of absolute divorce or annulment (Form R-408), and the request for trial vary from county to county. This makes no sense. Furthermore, some of the forms themselves are internally nonsensical. Why does the list of documents enumerated on the back of the joint petition omit forms that are always required, like the Form R-408, and the request for trial? And why must joint petitioners for divorce be compelled to file a request for trial when there will be no trial? Couldn’t that form be readily renamed a request for trial OR hearing? Uniform, state-wide, non-adversarial divorce forms would be easy to implement.
They would facilitate court filings for everyone. They would be especially helpful to the increasing number of people representing themselves without attorneys. A set of revised court forms could be accompanied by plainly written instructions translated into the various languages widely spoken in Massachusetts. Ultimately, all this could be available online. Reducing the amount of time court clerks spend explaining the non-adversarial divorce process to people without counsel would save the commonwealth money. Our citizens and the administration of our courts would both benefit from uniform, state-wide, non-adversarial divorce forms. The time to revise our forms is long overdue. The opinions expressed in this editorial are those of Les Wallerstein. He can be contacted at (781) 862-1099, or by email at <wallerstein@socialaw.com>.
“Litigant, n. A person about to give up his skin in the hope of retaining his bones.”
MCFM membership is open to all practitioners and friends of family mediation. MCFM invites guest speakers to present topics of interest at four, free, member education meetings annually. Educational meetings often satisfy certification requirements. Members are encouraged to bring guests at no cost. MCFM members also receive the Family Mediation Quarterly and are welcome to participate on any MCFM Committee. All members are listed on-line at MCFM’s web site, and all listings may be “linked” to a member’s email and web site. Annual membership dues are $90. Please direct all membership inquiries to Dee Fraylick at <mcfm23@aol.com>. REFERRAL DIRECTORY: Every MCFM member is eligible to be listed in the MCFM Referral Directory. Each listing in the Referral Directory allows a member to share detailed information explaining his/her mediation practice and philosophy with prospective clients. The Referral Directory is printed and mailed to all Massachusetts judges and to each listed member. The referral directory is also available on-line at the MCFM web site. MCFM was the first organization to issue practice standards for mediators in Massachusetts. To be listed in the MCFM Referral Directory, each member must agree to uphold the MCFM Standards of Practice. Copies of the MCFM Standards of Practice are available on-line at the MCFM web site. The annual Referral Directory fee is $60. Please direct all referral directory inquiries to Jerry Weinstein at (617) 965-2315. CERTIFICATION: MCFM was the first organization to certify family mediators in Massachusetts. Certification is reserved for mediators with significant mediation experience, advanced training and education. Extensive mediation experience may be substituted for an advanced academic degree. A copy of the MCFM certification requirements is available on-line at the MCFM web site. Every MCFM certified mediator is designated as such in both the electronic and the printed Referral Directory. Only certified mediators are eligible to provide mediation services to the Massachusetts Probate & Family Court through MCFM. Certification must be renewed every two years.
Ambrose Pierce
Certification applications cost $100, and re-certification applications cost $50. Certification and re-certification applications are available on request from Lynn Cooper at <lynnkcooper@aol.com>.
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Directorate
Editorâ&#x20AC;&#x2122;s Notice MCFM
MASSACHUSETTS COUNCIL ON FAMILY MEDIATION, INC. 23 Parker Road, Needham Heights, MA 02494-2001 Telephone & Fax: (781) 449-4430 email: mcfm23@aol.com web site: www.mcfm.org OFFICERS President
Family Mediation Quarterly Editor: Les Wallerstein 1620 Massachusetts Avenue Lexington, MA 02420-3802 Telephone: (781) 862-1099 Fax: (781) 861-8797 email: wallerstein@socialaw.com
Mary T. Johnston, 47 Church Street, Wellesley, MA 02482-6326, (781) 431-8552, email: maryt.johnston@erols.com
The FMQ is dedicated to family mediators working with traditional and nontraditional families. All family mediators share common interests and concerns. The FMQ will provide a forum to explore that common ground.
Vice-President
Fern L. Frolin, Grindle, Robinson, Goodhue & Frolin, 40 Grove Street, Wellesley, MA 02482, (781) 235-3300, email: ffrolin@grcattys.com
Vice-President
Kathleen A. Townsend, Divorce Mediation Group, Inc., 1441 Main Street, Springfield, MA 01103, (413) 733-4444, email: kathleen@divmedgroup.com
The FMQ intends to be a journal of practical use to family mediators. As mediation is designed to resolve conflicts, the FMQ will not shy away from controversy. The FMQ welcomes the broadest spectrum of diverse opinions that effect the practice of family mediation.
Secretary Treasurer
Laurie S. Udell, 399 Chestnut Street, Needham, MA 02492-2426, (781) 449-3355, email: lsudellesq@aol.com Frank W. Benson, COMMON GROUND, 20 Park Plaza, Room 530, Boston, MA 02116, (617) 482-8660, email: FDBenson@ix.netcom.com
DIRECTORS Lynn K. Cooper, Roger A. DuPont, Michael L. Leshin, Karen J. Levitt, Harry E. Manasewich, David River, Lynda J. Robbins, Barry L. Shelton, Debra L. Smith, Les Wallerstein, Philip D. Woodbury & Mark I. Zarrow DIRECTORS EMERITUS John A. Fiske, Janet B. Weinberger, Jerome Weinstein & Barbara N. White ADMINISTRATOR DeLaurice Fraylick, 23 Parker Road, Needham Heights, MA 02494-2001, (781) 449-4430, email: mcfm23@aol.com
Family Mediation Quarterly
The contents of the FMQ are published at the discretion of the editor, in consultation with the MCFM Board of Directors. The FMQ does not necessarily express the views of the MCFM unless specifically stated. The FMQ is mailed to all MCFM members. Copies are provided to all Probate & Family Court judges, local dispute resolution coordinators, and all law school libraries in Massachusetts. Excerpts from prior editions will appear on the MCFM web site <www.mcfm.org> after the FMQ has been printed and mailed. 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.
Spring 2003 â&#x20AC;˘ Vol. 2 No. 2
Family Mediation Quarterly MASSACHUSETTS COUNCIL ON FAMILY MEDIATION 23 Parker Road Needham Heights, MA 02494-2001
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