spring05 by tim costikyan

Family Mediation Quarterly

INSPIRING SETTLEMENTS SINCE 1982

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

MCFM

TOLL FREE: 1-877-777-4430 ON LINE: www.mcfm.org

MCFM

FAMILY MEDIATION QUARTERLY Vol. 4 No. 2

Spring 2005

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

MCFM

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

From The President: Laurie S. Udell It once was a given that a non-attorney mediator would not draft a Separation Agreement for a divorcing couple. Such mediators would draft a memorandum of understanding which would be incorporated into a Separation Agreement by an attorney for one of the parties, and then filed with the appropriate Probate and Family Court. However, today, some non-attorney mediators routinely prepare the Separation Agreement that the parties will file in Court. Is this a positive or negative development? Clearly, it seems to be more efficient if a divorcing couple can have their mediator draft their Separation Agreement, even if they have each had a separate attorney review the document. But the objection is that the Separation Agreement is, of course, a legal document with far-reaching ramifications for years to come. Shouldn’t an attorney be the one to do the drafting of it? There appears to be no formal position on this matter by either the Attorney General’s office (which may prosecute the unauthorized practice of law), or by the Board of Bar Overseers — that only has jurisdiction over lawyers. However, in an informal discussion with the BBO, I was told that a non-lawyer mediator drafting a Separation Agreement probably would be considered to have engaged in the unauthorized practice of law unless appropriate disclosures were made. These disclosures must include the following: 1. That the non-attorney mediator was not an attorney and as such could not give legal advice. 2. That the parties should consult with an attorney regarding the legal effect of the document and the legal terminology used, and the parties should be advised that the Agreement drafted was not intended to be an enforceable contract. 3. That the parties must consult with independent attorneys before filing the Separation Agreement in Court. I wholeheartedly recognize that there are incredibly talented therapists and other nonlawyers who excel at mediating very tough cases. And, of course, therapists bring special skills to the mediation of custodial or parenting schedule disputes. However, if a party to a mediation became dissatisfied with the outcome and a non-attorney mediator had drafted the actual Separation Agreement, the disgruntled client might act against that mediator for the unauthorized practice of law. Therefore, I would caution non-attorney mediators to follow the prudent course of action and refrain from drafting Separation Agreements. As Dennis Miller might say, “That’s only my opinion.” I look forward to hearing your comments.

Contents 1

The Mediator & The Financial Statement Recollections By Patricia A. Shea & John A. Fiske

A Judge’s Thoughts on Financial Statements: A Work in Progress, By Hon. Geoffrey A. Wilson

Paternity Establishment in Massachusetts: A Quiet Revolution, By Marilyn Ray Smith

Credit Where Credit is Due By Robert Loss & Dawn Evans

A Perfect Formula is Not Always Perfect & A Sticker Shock Vignette, By John A. Fiske

To Caucus or Not to Caucus By Oran Kaufman

MCFM’s 4th Annual Family Mediation Institute Ken Cloke: Keynote Address

ADR in the Courts By Christine W. Yurgelun

25 27 28 31

What’s News? Editorial MCFM News Announcements

34 Join Us 35 Directorate 36 Editor’s Notice

Spring 2005 • Vol. 4 No. 2

THE MEDIATOR & THE FINANCIAL STATEMENT Recollections by Patricia A. Shea & John A. Fiske On February 16, 2005, thirty-one members and guests of The Massachusetts Council on Family Mediation met at a workshop in Wellesley to discuss the love-hate relationship we have with the Probate & Family court form known as the Financial Statement. Below are the recollections of two participants. PAT’S RECOLLECTIONS One of the hallmarks of this particular workshop meeting was the open format that encouraged interaction between panel members and attendees. The panel, Doris Tennant, Les Wallerstein and John Fiske, opened the meeting to the audience and asked us to voice our concerns, questions and comments about the form and how each of us handles its preparation. One member who is a lawyer/mediator raised the question of our responsibility for the accuracy and completeness of our clients’ Financial Statements. Going around the table, the responses seemed to be as diverse as the mediation practices of those in attendance. Some of the mediators who are also attorneys feel the Financial Statement, given to clients in the beginning of the mediation process, can be a very useful disclosure tool. Quite a few give out white copies to new clients with instructions on how to fill it out, paying particular attention to the formula for weekly vs. monthly expenses as well as the section concerning current assets. Many feel the discussion

about filling out the Financial Statement paves the way for them to talk about the importance of full disclosure and the need for clients to be open, honest and complete in disclosing, especially in mediation, their assets and liabilities and by filling out this form, they can have a complete and accurate picture of their current financial situation. Other mediators, some also attorneys, find giving out Financial Statements to be “too threatening” for clients. “It’s an incredibly awful form” said Paulette Speight. She is one of many mediators who opt instead to use their own forms to gather information regarding assets and liabilities. She calls hers a “Hopes and Fears Sheet.” Janet Wiseman uses a form she had created by a graphic designer, and does not deal with the Financial Statement form. Rather than using the monthly to weekly 4.3 formula, which is difficult for some clients to understand, Janet and Paulette either provide a budget for each party to fill out, or provide them with a checklist of financial items that will need to be produced before court. Both felt that at least in the initial stages of the mediation process, some clients are just not ready to put “concrete” numbers on paper. Elizabeth Harling sends clients early in the process her own Excel spreadsheet monthly form, and “they love it.” She encourages them to work together on providing the information. She reminded us of the article by Judge Geoffrey Wilson

Family Mediation Quarterly

on Financial Statements, which Shippen Page produced after the meeting, and which is reprinted in this issue of the FMQ. Les Wallerstein sometimes fills out the Financial Statement form for his clients by entering the data they provide in longhand on his computer. Quite a few of the mediators provide clients with forms they have prepared themselves or obtained from their mediation training classes. Laurie Udell spoke about her practice of having her own forms filled out. When Laurie’s clients bring back the forms she asks “lots of questions,” and feels that this is part of her role as a mediator. When clients meet with their respective attorneys to review the Agreement she wants them to have accurate and current financial information, and provides them with preliminary drafts of their Financial Statements for each attorney’s review.

consult with attorneys. Pat Shea provides income appropriate financials on white paper to new clients at their first meeting, talks about full disclosure and the importance of being honest. Pat reminds clients that they, not she, will be signing this document for the court “under the penalties of perjury.” In cases with extensive assets to be divided, she attaches a Schedule of present assets to be divided as well as another Asset Schedule — which projects how the marital assets are going to be ultimately divided in accordance with the Agreement. Like many other mediators present, she requests verification of current assets, including pay stubs, retirement account records, stocks and options as well as any other assets which need to be discussed, divided or waived in the Agreement.

Some of the mediators who are also attorneys feel the Financial Statement, given to clients in the beginning of the mediation process, can be a very useful disclosure tool.

Several non-attorney mediators also spoke on how they handle Financial Statement issues. Frank Vangeli informs his clients that there are certain forms that need to be filled out and gives them white copies of the Financial Statement for their convenience. He is careful of his role and describes the Financial Statement as a “disclosure tool” and has the clients exchange completed forms with each other. He cautions them that at their hearing, the judge will be looking at these documents and if the figures look “unbalanced,” they may not be accepted by the court. As with all mediators, Frank urges his clients to

The financial experts at the meeting agreed that money is anxiety provoking for most clients, and they need to be organized and fully informed before they can come to any kind of resolution as to a division of marital assets. Jeffy Demeter, a CPA and Financial Planner, wants to know everything about the assets. She feels that accurate valuations, on all marital property is crucial to a client’s making informed decisions, including a home inspection when one

Spring 2005 • Vol. 4 No. 2

Continued on next page

spouse is buying the other out of the marital home. Both Larry Goodier and Daniel Kaseta, who work with Paulette Speight, did not want to start with the

While I left the meeting with many more questions than answers, I also now know how 30 other mediators and financial experts handle Financial Statements, their philosophies and techniques. I look Other mediators, some also attorneys, forward to another find giving out Financial Statements to members meeting be “too threatening” for clients. where we can exchange more ideas Financial Statement form because it’s too and perhaps share forms with each other. emotional and tense at the beginning. They John suggested that we work with the will work with the clients to transfer their courts to revamp their forms to make them numbers onto the form when the clients are more user friendly and effective. ready. As we prepared to end the meeting, Les Bob Loss and Barbie Jetter are mortgage Wallerstein commented “You can have specialists who spoke on the importance of disclosure and still not know what the completed financials for a client seeking a assets are worth. Its up to the clients to mortgage in a buy-out situation. Bob also decide what is fair and equitable.” For me, noted that mortgages are blind to divorce. that summed it up. We always do our best The timing of the mortgage application is for our clients, but we have to keep their independent of the separation agreement, wishes uppermost in our minds, and abide and one does not have to wait on the other. by their decisions regarding asset division. When clients go to Barbie for a new mortgage, they need to know where they JOHN’S RECOLLECTIONS Howard stand financially, and a complete and Goldstein and Michael Leshin raised the accurate Financial Statement provides same question about the mediator dilemma crucial and relevant information which when clients write numbers that are clearly helps to move the mortgage process along. wrong, such as the value of the house when they bought it 10 years ago as the present Some of the mediators have assumed the value. Do we question them? Shuneet “it depends where the clients are in the Thomson is troubled by the lack of process” way of handling the Financial documentation from some clients, who Statement question. Other mediators stay may be just making up numbers with no completely away from the preparation of verification requirement during the Financial Statements. Harry Manasewich mediation process. feels that helping clients fill out these forms leaves us open for future problems Marcia Tannenbaum said Worcester and claims of unauthorized practice of law, County does not require Financial Statements to be included in the initial especially mediators who are not lawyers. filing of a joint petition for divorce, but

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must be brought by the clients to their hearing.

agreement.

Hopefully, two practical projects will Crystal Thorpe likened her approach to emerge from this meeting. The first would Blair Trippe’s and others‚ around the table. be to assemble a broad sampling of the She provides clients with Some mediators use the Financial worksheets and the court Statement form as a disclosure financial statement form early in the mediation process. The tool, but no one described using it set of worksheets are offered for financial planning purposes. as tools to help people gather the information they need to include on the different financial forms mediators use, and court form, and as a guide for asset division publish them in the FMQ. Blair Trippe and support discussions within the agreed to the initial organization of this mediation sessions. effort. Blair can be contacted at (781) 4249586 or blair@AgreementResources.com. Some mediators help the clients fill in the If there is sufficient interest, the second Financial Statement and some do not, project would be to approach the Probate & depending on what the clients need and Family Court and offer to help redesign the want or depending on their own definition Financial Statement form. of the neutral role of the mediator. Some mediators use the Financial Statement form as a disclosure tool, but no one described Patricia A. Shea, is a certified divorce mediator and therapist with offices in using it for financial planning purposes. Framingham and Marion. She is also a Both Marion Wasserman and John Fiske director of MCFM. Pat can be contacted at expressed concern about leaving clients to (508) 748-2689 or at sheamdtr@ziplink.net. fill out the Financial Statement forms on their own. You have no idea what they will John A. Fiske is a founding member, past present to the court, and a messy statement president and director emeritus of MCFM. will not make it easier for the judge to He can be contacted at (617) 354-7133, or approve the accompanying separation at jadamsfiske@yahoo.com.

"To fear the worst oft cures the worst." William Shakespeare

Spring 2005 • Vol. 4 No. 2

A JUDGE’S THOUGHTS ON FINANCIAL STATEMENTS A Work in Progress By Hon. Geoffrey A. Wilson In most domestic relations cases, the financial statements are the single most important documents presented to the court. With the exception of those cases that deal primarily with custody and/or visitation, domestic relations actions today are, first and foremost, economic exercises. As a result, the financial statements that the parties are required to file are the most important documents that the court receives in the case, as they are designed to summarize, and provide a basis for comparison of, the parties’ respective economic capabilities and needs. It is therefore a continual source of amazement how little thought and effort litigants — and their attorneys — give to this aspect of their case. While considerable time and expense is often devoted to other areas of preparation, the financial statement often seems to be but an afterthought — something which is scratched out in the hall; is based upon memory or guesswork; and is, more often than not, incomplete and inaccurate. And it shows! A major opportunity is missed, and the seeds of possible disaster are sown. Measure of credibility A financial statement is a handy measure of the litigant’s credibility — and a good indication of the attorney’s level of preparation.

First impressions are important, and the parties’ financial statements are often the first thing that a judge looks at when hearing a case at a motion session, or at trial. If a statement includes blank spaces, or what are obviously estimates, or contains figures which are inconsistent or otherwise incredible on their face, this immediately gives the judge a strong indication that anything that its author has to say with respect to his or her finances should be taken with a very large grain of salt — and that that person’s attorney has failed to gather and organize the information that is essential to advocate his or her client’s position. In those instances, before the first word is spoken, the judge already has serious concerns as to the credibility of the party who signed and filed such a statement, and as to the professionalism of his or her attorney. On the other hand, on those alltoo-rare occasions when a litigant files a financial statement which is both comprehensive and comprehendible, this suggests to the judge that this person is to be taken seriously, and that his or her attorney is ready to proceed in a fashion which makes efficient use of the court’s time. Every financial statement should be carefully reviewed by both its author and his or her attorney before being filed and distributed to the other side; mistakes found then will prove to be a lot less

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embarrassing and costly than those which are pointed out by the opposition or by the court.

the refund which he receives later on, and which will never be disclosed if it is spent quickly enough.

And neatness does count! A typed or computer-generated financial statement is a lot easier to read, and to digest quickly, in the course of a hectic court session.

The omission of relevant information on a financial statement is every bit as misleading as inaccurate information which is set forth, and is every bit as much a violation of the party’s certification, under oath, that the statement is true and complete. In any event, the failure to go to the trouble of answering all of the questions on the form certainly raises the question of whether the party is being evasive, or simply lackadaisical. Either way, the impression upon the court is less than positive.

The Statement must be complete The instructions for both the short form and the long form financial statement specify that every blank space must either be filled in with the appropriate figure or the word “none” inserted. But this requirement is seldom met. Instead, parties usually just answer the questions they choose to and leave the rest blank, placing the court in a position where it has to guess whether the Use footnotes or attachments where omissions are inadvertent or intentional — necessary Both the short form and the or even whether it in fact has all of the long form financial statement require that information that it needs to make a fully copies of W-2 and 1099 forms be attached informed In most domestic relations cases, the decision.

financial statements are the single most An example important documents presented to the court. of how failing to provide all of the information to substantiate the figure shown for the requested can be used to a litigant’s party’s gross income for the previous year. advantage: he (or she) does not include on Similarly, any figure entered for selfhis financial statement the number of employment income is to be explained by exemptions claimed for purposes of the tax attachment of a completed Schedule A, and withholdings from his salary or wages, and any rental income by means of a completed then complains to the court that he does not Schedule B. But each of these take home enough to pay the support or requirements is, more often than not, alimony requested. But, if an inquiry is in ignored, unless specifically enforced by fact made, it often turns out that the litigant judges and/or by court staff — even though is claiming “0” exemptions — even though each represents an opportunity for the he has several dependent children, as well litigant to more fully explain his or her true as himself — in order to significantly lower economic situation to the court. the net weekly income which appears on his financial statement, while increasing Continued on next page Spring 2005 • Vol. 4 No. 2

In addition to these required attachments, both financial statement forms provide that extra pages can be added, on which to supplement any answers, and this also represents an opportunity which should not be passed up. Instead of waiting to explain

statement itself, you can often take much of the sting out of a point, or even turn it to your own advantage.

In general, it is better to provide too much information, rather than too little, provided that it is done in an organized and Neatness does count! A typed or computer-generated financial statement is coherent fashion. It is better to have a lot easier to read, and to digest quickly, a judge inquire why a litigant in the course of a hectic court session. included certain to the court why a certain figure on the information, instead of demanding to know financial statement may be confusing or why he or she failed to do so, and misleading, standing on its own, add a attempting to determine whether that footnote on a separate page which explains person’s attorney was aware that the the overall context in which that figure statement was indeed false. should be viewed. In instances involving relatively complicated financial situations, The financial statement should reflect several footnotes are not only appropriate, present reality, but at the same time should but often necessary. The fact that the forms utilize averages in order to avoid seasonal provided by the court do not always or other anomalies contain topics and/or blank spaces which conform exactly to a party’s specific A financial statement should give a circumstances is not an excuse for failing complete picture of the party’s financial to provide all of the information that the situation as of the day that it is signed — court will need in order to analyze the not what it was a year before or what it is situation appropriately. expected to be a month later. It is a snapshot of a moment in time, although, by A good financial statement, appropriately means of footnotes, reference can be made, annotated and/or supplemented, should be where relevant, to how the information able to stand entirely on its own, if reported is different from what would have necessary, without any further explanation been reported in the past, or from what or testimony. And the basic premise that it might reasonably be expected at some is a lot better to give your own explanation, point in the future. in your own terms, before an issue is raised by your opponent, is nowhere more true But where either income or expenses can than here. By anticipating your opponent’s be expected to vary over the course of a arguments about your client’s finances relatively predictable cycle, averages through the use of clarifications or should be used instead of simply the figure explanations contained in the financial that happens to come up the day that the Family Mediation Quarterly

statement is being signed — with this methodology being indicated in a footnote. If the party has not put in any overtime in a given week, but sometimes does, an average for his or her overtime over the course of an extended period should be used, perhaps several months. Similarly, home maintenance or repairs, the cost of heating oil, vacations, or any other seasonal or non-recurring expense should be averaged — ideally over the course of an entire year. In that way, a figure will be given that is neither unusually high nor low, and which is therefore fair to both parties.

If the total weekly income and the total weekly expenses shown on a financial statement do not balance, its author should be prepared to explain how the shortfall is covered, or where the excess is put. While financial statements prepared in a commercial context are, by definition, expected to balance, in most instances, parties preparing financial statements in domestic relations cases do so without making any effort to reconcile what they show for total weekly income with what they list for total weekly expenses — as if they are oblivious to the existence of any relationship between the two.

A few more quick points about dates: where figures, for debts or for the value of But if the total weekly expenses shown on pensions, for instance, are obtained from a financial statement, including salary third parties and only periodically, indicate deductions and the payment of debt, exceed the date of the information — “(as of what is listed as that person’s gross weekly 9/30/03)”, etc.— in order to avoid income, either that person has received controversies resulting from the fact that gifts, has had to borrow or dissipate savings the actual reason that the parties have or other assets in order to make up the different figures for the same item is simply shortfall, or the statement is inaccurate, that their information is as of different either as to the income listed, the expenses, dates. With respect to the entry for “Gross or both! Similarly, if the total income Yearly Income From Prior Year”, specify reported exceeds the total expenses, the the year that is in fact being Those who fail to accord this reported; particularly at the beginning of each new year, it document the consideration that it is often unclear whether the deserves do so at their own risk! figure which is included is for the year which has just ended, or for the surplus is either being converted into last year for which the party has already savings or other assets, or once again the filed a tax return, which is now actually the statement is incorrect. Only if weekly year before last. And where separate sheets income and expenses are balanced is no or attachments are included, place the date explanation needed — unless money really and the name of the party on the top of does grow on trees, or is susceptible to each, in case they become separated at spontaneous combustion! some point in the court file. Continued on next page

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But, on a daily basis, I am presented with financial statements which state that expenses far exceed income, but which show absolutely no debt, and whose authors tell me, when I ask, that, no, they haven’t received any gifts, they haven’t had to dip into savings, and they haven’t sold

discrepancies between his or her present financial statement and any previous statements, or any other documents which might be brought to the court’s attention.

Just as a financial statement must be internally consistent, it should also be consistent with any previous Just because the matter is statements produced by the uncontested today, that does not same party, and/or with any supporting documentation — mean that it will be tomorrow. unless any discrepancies can be any assets. In those cases — with the readily explained. If an earlier statement possible exception of instances where the says that car expenses are $100 a week, for parties have just separated or become instance, this figure should not suddenly unemployed, etc. — I can come to no other change to $150 unless there has been some conclusion than that either the income has specific change in the author’s lifestyle, or been under-reported or the expenses have in the condition of his or her vehicle, that been exaggerated. Accordingly, the can explain this increase. Otherwise, it can financial statement provides me with no only be assumed that one or both of the credible evidence upon which to base, for figures are arbitrary, and opposing counsel example, a requested reduction in child is given an easy avenue of attack upon the support — and in fact, it could be argued, validity one or both of the statements, and actually supports the argument that the upon the credibility of their author in author of the statement has an income at general. Similarly, if other documents least equal to what he or she lists for total available to the other side clearly show that expenses. Conversely, a statement which the mortgage payment is $200 a week, if shows total income in excess of total the person’s financial statement says it is expenses does nothing to support a request $300, he or she better be prepared to for an increase in alimony, and may explain the difference — or should change actually support an argument for a the statement to conform to the evidence. reduction. Even in uncontested cases, it is important Especially because it is signed under the that all financial statements be complete penalties of perjury, a judge has the right to and accurate. take a party’s financial statement at face value — even if that statement actually As inadequate as the financial statements supports an assertion quite contrary to that are that are filed as a general rule in the which that party, and his or her attorney is course of contested domestic relations attempting to argue. cases, those which are given to the court when the parties have reached an A party must also be able to explain any agreement are even worse, as it is Family Mediation Quarterly

obviously assumed that these statements are now but a mere formality. As a result, it is not uncommon to hear the attorneys in an uncontested case describe in great detail various assets which have been divided in the parties’ separation agreement, only to find that these assets do not appear on either of the parties’ financial statements — each of which has also been signed by respective counsel, stating that he or she has no knowledge that any of the information contained therein is false! In any event, just because the matter is uncontested today, that does not mean that it will be tomorrow, when one of the parties decides that he or she doesn’t like the agreement after all, and asks that it be thrown out on the basis of the other party’s fraud in failing to make full disclosure on his or her financial statement — or when a complaint for modification is filed, asking for more alimony, and based upon the change in the other party’s income, compared to what he or she had failed to

report on his or her previous financial statement. Even in uncontested cases, a full and complete financial statement is crucial in order to establish the baseline relative to which any future litigation involving the same parties will be measured. Conclusion The financial statement in a domestic relations case should not be viewed as an irritating afterthought, but instead as a crucial component which requires the full attention of the litigant and his or her attorney. Those who fail to accord this document the consideration that it deserves do so at their own risk!

Geoffrey A. Wilson is First Justice of the Franklin County Probate and Family Court. The original version of this article appeared in the Massachusetts Bar Institute Family Law Section, Spring 2001. Judge Wilson can be contacted at (413) 774-7011.

"Money is the root of all evil, and yet it is such a useful root that we cannot get on without it any more than we can without potatoes." Louisa May Alcott

Spring 2005 • Vol. 4 No. 2

PATERNITY ESTABLISHMENT IN MASSACHUSETTS: A Quiet Revolution By Marilyn Ray Smith Editor’s note: This paper, first presented to the Governor’s Commission on Responsible Fatherhood on June 14, 1999, has been updated to include recent figures, through calendar year 2003. More than 22,000 children are born out of wedlock in Massachusetts every year. By contrast about 15,000 Massachusetts children see their parents get divorced every year. Any serious effort to reduce father absence in Massachusetts must therefore focus on increasing paternity establishment and decreasing out-ofwedlock childbearing. We have seen revolutionary changes in paternity establishment in Massachusetts since the mid-1980s. This paper provides an overview of changes in law and procedures that have brought about these changes. In 1990, 22,837 children were born out of wedlock. In 2003, the latest year for which we have complete figures, the number had dropped to 22,190 — 647 fewer babies born to unmarried parents. In 1990, approximately 2,100 children had their paternity established in Massachusetts. In 2003, more than 18,500 fathers made a binding legal connection with their children. In some years, more children had paternity established than were being born to unmarried parents, as the Commonwealth continues to work through the backlog of establishing paternity for older children.

From Criminal to Civil Process Since the mid-1980s, paternity establishment in Massachusetts has been transformed from a quasi-criminal process to a simple procedure where both parents sign a voluntary acknowledgment of paternity in the hospital as part of the birth registration process. As late as 1986, a mother wanting to establish the paternity of her baby had to go through a quasi-criminal process in the district courts. She had to go to the clerk magistrate in the local district court, and swear out a criminal complaint for paternity and criminal nonsupport. As a practical matter, most paternity cases were brought by the Department of Public Welfare, acting on the behalf of a mother who had assigned her child support rights to the state as a condition of receiving public assistance. Once obtained, the complaint had to be served on the father, who had to be arraigned and enter a plea of not guilty or guilty. If the case went to trial, the defendant had a right to a jury trial. Because of his Fifth Amendment privilege against self-incrimination, he could not be compelled to testify. And the prosecutor had to prove paternity beyond a reasonable doubt, yet was prohibited from introducing into evidence blood tests that may have shown a probability of paternity of 99% or higher.

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Genetic tests results could only be used by the defendant to show that he had been excluded as the father — in which case the prosecutor would drop the case. Any trials that took place were basically a case of her word against his — “He said/she said” — whom did the jury believe.

comprehensive legislation filed by Governor Weld, Massachusetts took several steps toward further streamlining its paternity establishment process. The most important change was making paternity acknowledgment a part of the birth registration process. Under the old law, many unmarried fathers and mothers wanted the father’s name on the child’s birth certificate. But having the father sign the birth certificate created only a presumption of paternity — court action

Under this system, few contested jury trials resulted in paternity adjudications. Most paternities were established because the father voluntarily admitted paternity — which essentially meant pleading guilty. Although the father could not More than 22,000 children are be sentenced to jail for fathering a born out of wedlock in child out of wedlock, he could be Massachusetts every year. placed on criminal probation. was still necessary to establish paternity. In 1986, in response to a wave of child At court, the father could admit paternity support reform mandated by Congress in after a complaint was filed; both parents 1984, the law in Massachusetts changed could register a voluntary acknowledgment dramatically. The process became civil of paternity with the court; or the court instead of criminal; the probate and family could conduct a bench trial. court got jurisdiction to hear paternity cases; and genetic marker test evidence In 1998, the law changed again, giving the became admissible to show probability of paternity acknowledgment the same legal paternity. In addition, parents could force and effect as a court adjudication of register paternity acknowledgments with paternity, and entitled to full faith and In addition, all paternity the court instead of having to file a credit. acknowledgments and adjudications must complaint. be filed with the Registry of Vital Records In 1987, the child support program was and Statistics, and the birth certificates transferred from the Department of Public must be amended to reflect establishment Welfare to the Child Support Enforcement of paternity. Division of the Department of Revenue (DOR), and in the late 1980s and early Now, if the father wants his name on the 1990s, DOR transferred the child support child’s birth certificate at the time of the caseload from 69 district courts to 14 child’s birth, he and the mother must sign an acknowledgment of paternity as part of probate and family courts. the birth registration process. Medical Voluntary Acknowledgement of records staff give parents information In 1994, as a result of Paternity Continued on next page Spring 2005 • Vol. 4 No. 2

about the consequences of establishing paternity, and inform them to seek a genetic marker test and to go to court if either parent is not sure of the father’s paternity or if the case involves domestic violence.

during these time frames, it is as binding as a court judgment. See G.L. c. 209C, s. 11.

To educate parents about the in-hospital paternity acknowledgment program, the Department of Since the mid-1980s, paternity Revenue has establishment in Massachusetts has been c o n d u c t e d o u t r e a c h transformed from a quasi-criminal process informational sessions with to a simple procedure. hospitals, preand post-natal health clinics, WIC centers, As part of its regular electronic interface day care and Head Start centers, schools, with the Registry of Vital Records and case workers at the Departments of Statistics, the hospital sends information to Transitional Assistance, Social Services, the Registry indicating that the parents Youth Services, and a wide variety of have signed a voluntary acknowledgment. community based organizations, including The paperwork then goes to the local office agencies that work with low-income of the city and town clerk for issuance of fathers. the birth certificate with the father’s name on it. If the parents sign in the hospital, The Departments of Revenue and Public there is no fee; if they sign at the clerk’s Health have worked closely in office, the fee is usually $25 or more to implementing this program, with the result amend the birth records. that parents of approximately 75% of the children born out of wedlock in the Within 60 days of signing the Commonwealth sign the acknowledgment acknowledgment, the parents can change in the hospital or shortly thereafter at the their minds and rescind the voluntary offices of the city and town clerks. acknowledgment by filing a complaint to rescind the paternity acknowledgment with Since 1994, almost 150,000 Massachusetts the probate court. The court can then order children have had their paternity a genetic marker test to determine whether established through the voluntary or not the man who signed the acknowledgment program in the hospitals. acknowledgment is the biological father. This program has been very well received After the expiration of 60 days, the parents by all stakeholders. have up to one year after the date of signing to file a complaint in court to set aside the • Parents like it because they can avoid the acknowledgment on the basis of fraud, adversarial court process, and they can duress or mistake of fact. In the absence of cement the father-child relationship while any challenge to the acknowledgment the parents are still together. Research

shows that about 80% of fathers of children born out of wedlock are still in some type of relationship with the mother at the time of the child’s birth. Two and a half years later, only 25 percent regularly see the child. • The hospital medical records clerks like it because they see the proud fathers in the hospitals and are pleased to assist in legalizing the connection between the father and the child. • The courts like it because it dramatically reduces their caseload, freeing them up to handle more complex, contested cases. • The Department of Transitional Assistance likes it because it reduces welfare dependency. Mothers receiving child support are less likely to go on public assistance, and once off, are three times more likely to stay off as the child support check provides a much needed supplement to their paycheck. • The child support program at the Department of Revenue likes it because it helps us meet our federal mandate to establish paternity in at least 90% of the cases.

rights, and a relationship with members of the paternal extended family. In addition to the voluntary acknowledgment program in the hospitals, court procedures have been streamlined, with the result that paternity has been adjudicated in the courts for more than 85,000 children since 1990.1 Genetic tests are now based on DNA testing that regularly produces results of more than 99% probability of paternity. In fact, the test no longer even requires drawing blood; genetic samples are taken by swabbing the inside of the cheek to collect saliva on a giant Q-Tip — a procedure called “Buccal swab.” There are virtually no contested paternity trials anymore, as cases settle once the results of the genetic marker tests are in. If the alleged father fails to appear for the genetic marker test or for the court hearing, the court enters paternity by default. See Chapter 209C. s. 8. Despite the accomplishments of the last twenty years, however, much remains to be done. The Commonwealth must comply

Genetic tests are now based on DNA testing that regularly produces results of more than 99% probability of paternity.

• The children who are the beneficiaries are too young to voice their views. But in addition to the chance to receive child support, they also benefit from the opportunity to develop a relationship with their fathers and to have access to other benefits, such as health information, Social Security and Veterans’ benefits, inheritance

with strict federal standards to ensure that it meet the paternity establishment percentage (PEP) required by federal welfare reform in 1996. The PEP is a formula that has as its denominator the number of children born out of wedlock in the previous fiscal year, and as its numerator the number of children of any Continued on next page

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Spring 2005 • Vol. 4 No. 2

age whose paternity was established either as part of the voluntary acknowledgment process or by adjudication by the court in the current year. States are required to increase this percentage by 2% every year until they reach 90%, and then they must maintain that percentage. Doing so was not difficult when the Commonwealth was establishing paternity for older children. Now that we have worked through that backlog, we are focusing our attention on newborns and ensuring that all paternity establishments are registered with the Registry of Vital Records and Statistics. Failure to meet these performance measures for two consecutive years could result in a penalty from the federal government that is 1% of the block grant for Temporary Assistance to Needy Families, the federal funding for the Commonwealth’s public assistance program. In order for each paternity establishment via adjudication or acknowledgement at court to be counted, the registrar of probate sends an R-209C form and a certified copy of the adjudication or acknowledgment to RVRS. It is important for private counsel who assist parents in establishing paternity to assist the registrar by providing the information required on the R-209C form.

Department of Social Services may not be included.

wedlock births. It increases the cost of fatherhood for unmarried fathers, and it serves as a deterrent for fathering additional children out of wedlock for fathers whose paternity has been established — for some because of the child support liability, for others because the bond they develop with the child brings stability and responsibility to their lives. And for other young men, it makes them more reluctant to father children outside marriage as they see the consequences for their peers.2

Massachusetts has consistently had a lower out-of-wedlock birthrate than the rest of the country. In 1988, we were in the middle of the pack, having the 21st lowest rate among the states. In 1997, we dropped to the 7th lowest rate. Only Nebraska, Colorado, Minnesota, New Hampshire, Idaho, and Utah had lower percentages of children born out of wedlock in that year. The graph on the right compares percentages of out-of-wedlock births in Massachusetts and the country as a whole. It shows that much of that widening gap has occurred since 1994, corresponding to increased paternity establishment and stronger child support enforcement procedures in Massachusetts.

Reduction in Out-of-Wedlock Births

Much remains to be done to increase p a t e r n i t y There are virtually no contested paternity establishment, especially among trials anymore, as cases settle once the f a m i l i e s results of the genetic marker tests are in. receiving public There is emerging national research assistance. Many of the 25% of cases showing that a strong paternity where the parents do not sign the establishment program reduces out-of- acknowledgment in the hospital end up on

Family Mediation Quarterly

public assistance. It is more difficult to establish paternity later on, as the parents are not so likely to be in communication and indeed the alleged father may be difficult to locate. Many factors have contributed to the decline in out-of-wedlock childbearing in Massachusetts. A strong paternity establishment program is just one of those factors, but a significant one. Endnotes 1. These numbers are based on paternities established through actions brought by DOR. Paternity adjudications brought via private counsel, pro se actions, or by the

2. See for example, A. MA Case, “The Effects of Stronger Child S u p p o r t Enforcement on Nonmarital Fertility,” in Fathers Under Fire: The Revolution in Child Support Enforcement, 1998; I. Garfinkel, et al., “Will Child S u p p o r t Enforcement Reduce Nonmarital Childbearing,” 1999; R. Plotnick et al., “Better Child Support Enforcement: Can It Reduce Teenage Premarital Childbearing?” 1998.

Marilyn Ray Smith is Deputy Commissioner and Chief Legal Counsel for the Child Support Enforcement Division of the Massachusetts Department of Revenue. Any views expressed here are her own and not necessarily those of the Department of Revenue or the Governor’s Commission. Attorney Smith can be contacted at (617) 626-4170, or at smithm@dor.state.ma.us.

Spring 2005 • Vol. 4 No. 2

CREDIT WHERE CREDIT IS DUE By Robert Loss & Dawn Evans Recent changes in interest Over the past many months all of us consumers have been watching as interest rates have been steadily on the rise. The days of 5.25% no points and no closing costs loans have passed us for now, and Brokers and Lenders alike are trying to provide new products to draw consumers interest. To keep up with the demands of higher rates and higher house prices Lenders are now offering products such as: • Interest Only Mortgages • 40 year amortized loans • Multiple No Income documentation type products • Asset depletion loans • Easier access to non-warrentable condos • Lower credit score requirements for home purchases • 100% home financing with only $500 down payment from borrower • Monthly Treasury arm products with a start rate as low as 1.25% • No prepayment penalties for owner occupied homes in MA/NH/GA This is just to name a few. And as part of successful mortgage financing, one piece of information is key to getting a good deal, your Credit Score. What exactly is a credit score? A credit score is a factor, utilizing data from the major credit repositories, (e.g., Trans Union, Experian and Equifax), to determine how likely you are to repay your debt on time. Various factors influence your credit score. For example:

• Payment History • Outstanding debt in relation to maximum credit limits available • Length of your credit history • Severity and frequency of negative credit payments There are steps you can take to ensure that your credit score truly reflects the money manager you are. By observing the following guidelines you can influence your credit worthiness for the better. Be punctual Pay all your bills on time. Late payments, collections, judgments and bankruptcies have the greatest negative effect on your credit scores Check your credit regularly At least once a year! Your credit picture can suffer from inaccurate information. Any inaccuracies you find you will want corrected as soon as possible Watch the amount of your debt Keep your balances (if possible) at 50% of their maximum limit or below. Give yourself time Time is one of the most significant factors in improving your credit scores. A long history of established timely payments show you responsibly use your credit and use it wisely. Avoid excessive inquiries Numerous inquiries into your credit history can be portrayed as a sign that you are opening numerous accounts due to financial difficulties or that you are opening

Family Mediation Quarterly

numerous accounts due to financial difficulties or that you are overextending your current debt load.

Experian PO Box 9595 Allen, TX 75013 888-397-3742 experian.com

Ways to Maximize Your Credit Rating Establish and maintain at least 4 tradelines; Equifax car loans, credit cards, mortgages, etc.. PO Box 740256 Even if you charge a tank of gas a month Atlanta, GA 30374 and pay it off immediately on each, that is 800-685-1111 equifax.com enough to establish a solid The credit industry does credit history.

not care what a settlement agreement says.

Avoid new credit cards if possible, even if they seem to save you a little money. For example, 0% interest for x months or 15% off your first purchase at department stores are marketing strategies that companies create to draw you into wanting their credit cards. New cards will potentially drop your credit scores and maintain higher levels of debt on your credit profile then you may want/need. The longer you have each tradeline the better. Remember, new tradelines hurt your credit scores more than the money you will save as mentioned in the example above. Even if you have excellent credit, you benefit from making it even better. Some mortgage companies now give even better rates to people with superlative credit. Each credit repository is responsible to give to you an annual, free copy of your credit report. The agencies can be contacted as listed: Trans Union PO Box 4000 Chester, PA 19022 866-887-2673 transunion.com

Credit is especially important to a divorcing couple, since a divorce often necessitates the refinancing of the marital home or purchasing another home. Even if credit is not good at the time of the divorce, there are many types of mortgages which can be used even if the interest rate is higher. The good news is that credit can be improved fairly quickly, allowing a refinance at normal, lower rates within a year or two. The credit industry does not care what a settlement agreement says. If one spouse is responsible for paying a mortgage or any other debt and does not pay it on time, BOTH ex-spouses credit scores are hurt not just the one held responsible in the agreement.

Robert Loss & Dawn Evans are principals in Comprehensive Mortgage Co., Inc., in Woburn. They offer clients assistance in obtaining or refinancing home loans, and analyzing ways to improve their credit history. Bob and Dawn can be contacted at (781) 933-0456, or at DEvans@comprehensivemortgage.com.

Spring 2005 • Vol. 4 No. 2

A PERFECT FORMULA IS NOT ALWAYS PERFECT & A STICKER SHOCK VIGNETTE By John A. Fiske

might be helpful for you?

other couples where this simple system worked.

If you are still stuck............ A STICKER SHOCK VIGNETTE

Author’s Note: This article was written originally with a married couple in 1997, and revised in 2005. 1. You ask yourself, “What Do I Want?” This step is by far the most difficult of the entire negotiation process for many people. “How can I possibly know what I want when I have never been conditioned or used to asking myself anything about my own feelings or my own self, never mind asserting them?” Yet if you do not ask and answer this question, the process has no foundation and crumbles. So all the succeeding steps assume you have figured out what you want and are ready to tell the other person. 2. You tell the other person what you want. You check with the other person to be sure he or she listened, heard and understands what you want. 3. The other person says to you what he or she wants. The other person checks with you to be sure you listened, heard and understand what he or she wants. 4. Often, there is no conflict between what you want and what the other person wants. However, if what you want conflicts with what the other person wants: “How big a deal is it?” Each of you tells the other what you think: If it is not a big deal for one of you, he or she should say so. The other should check to be sure that you are being fair to

yourself. If is not a big deal for either of you, you need to figure out who gets what, making sure you are still being fair to yourself. If it is a BIG DEAL for both of you, turn over the page.... 5. You have created a problem. You need to separate yourselves from the problem and acknowledge, “WE have a problem.” It is not her problem or his problem, it is OUR problem. What are WE going to do about OUR problem? You explore alternatives. Can we reframe the question so it becomes less of win and lose situation for us? You can brainstorm, with ideas being suggested by each of you with the understanding that no idea is crazy and they are free from criticism by the other. All alternatives should be subject to steps one, two and three above. You discuss and explore every alternative you can reasonably suggest. If none of these approaches succeed for both of you, here are four useful questions: What are we arguing about? What are your concerns? Why? or Why do you want ....? Can you think of anything I can do that

Family Mediation Quarterly

He came home a week later and hit the roof. He had not done anything yet, and there were red stickers on everything. He stormed into the living room, I was told later, and saw one red sticker on the wall. “What’s that mean?” he screamed. “Oh, I

As the White Knight says in Alice Through the Looking-Glass, “It’s my own invention.” Of course I borrowed heavily from Janet Wiseman and others, The premise is that people including clients who were trying to figure out how they could stay need to figure out what they married by talking to each other in a want and then tell each other. more efficient way. want everything in the room and just didn’t The premise is that people need to figure want to bother putting stickers on each out what they want and then tell each other. item.” She ended up calling the police. Of course it’s almost impossible for people to figure out what they want and then tell Fortunately, by the time the police arrived each other, but it’s a perfect work to try. he had calmed down and they agreed to see Assuming there is some (a) listening and their therapist, who improved on A Perfect (b) reciprocity, (helpful ingredients not Formula: always present in our conversations), people can reach agreement efficiently. 1. Use white stickers. 2. Every sticker has a number. I hand out A Perfect Formula is Not Always 3. You each take a clipboard and make a list Perfect to clients when they appear of the interested and ready to try to communicate numbered items you want. better. Sometimes they find it helpful, and I 4. When you are ready, you exchange lists. thought some of our dear readers might want to try it or comment on it and improve Keep striving for perfection and in the the process. meantime be extra grateful to clients who have A Perfect Sense of Humor. A month ago Bill and Sally did not find it John A. Fiske is a founding helpful. They were trying to divide a house member, past president and full of furniture and I told them they each director emeritus of MCFM. He is needed to know what they wanted and then also a partner at Healy, Fiske, tell the other. They agreed to do that, following A Perfect Formula: She would Woodbury & Richmond, a Cambridge firm put red stickers on what she wanted and he concentrating in family law and mediation. would put green stickers on what he John can be contacted at (617) 354-7133, wanted. So far so good, just like many or at jadamsfiske@yahoo.com Spring 2005 • Vol. 4 No. 2

TO CAUCUS OR NOT TO CAUCUS By Oran E. Kaufman John Fiske’s musings in the Winter 2005 Family Mediation Quarterly entitled Power: Vested and Nonvested inspired me to share. One of the beautiful (and challenging) things about mediation is that no matter how long you have been doing this work, it continues to be fascinating and often complex. I continue to be fascinated by the different “activities” that are going on on so many different levels. I liken it to a major intersection where superhighways and turn-off ramps converge and intersect on different levels. Enough prologue—it’s time to share. I had been working with a mediation couple for some time. They were both very pleasant during the mediation. They would have disagreements but seemed to have been able to resolve them fairly amicably. On one level I was happy and felt good about the fact that I had given them a venue for reaching a decision in a non-adversarial manner. On another level, I had something in the back of my mind telling me that something was not quite right. There was a bit a power imbalance in the relationship. He was aggressive in his argument. He was a good negotiator and was pretty outspoken about his views. She was able to advocate for herself but not quite at the same level. I also had some inkling that she was willing to give up on some issues so that they could move forward and be done. They reached what appeared to be a final agreement. Although I always encourage clients to see individual attorneys to review

the agreement and give them individual advice, they do not always take my advice. In this case, for a change, I listened to the little person in the back of my brain and strongly encouraged both to see an attorney. I was mostly concerned with her but obviously thought it would be helpful for him to get a reality check as well. I sent out the final agreements with my final packet which includes the divorce papers they need to fill out and a questionnaire asking for feedback about the mediation process. To my surprise (surprise because even when sent with return self-addressed envelopes, the rate of return on the questionnaires is not great) she sent back her questionnaire. To my delight (and surprise!) the wife had very positive things to say about the process. She did however indicate that an individual session with her during the mediation would have been extremely helpful as she felt “bulldozed” (my term) by her husband during the mediation. I have struggled with this question for years. It is also a common discussion and subject of workshops at conferences- To caucus or not to caucus? To paraphrase Tevye from Fiddler on the Roof, on the one hand, the mediator can learn a lot during the caucus that could help during joint sessions. On the other hand, caucuses always have the potential for causing distrust in one or both parties- what was said in private session? Is the mediator now going to align with my spouse because of what he or she said privately? But on the other hand... What is a mediator to do? We

Family Mediation Quarterly

are indeed like a fiddler on a roof- always walking the fine edge.

Although I always encourage clients to see individual attorneys to review the agreement and give them individual advice, they do not always take my advice.

Fortunately, in this case, the decision was made for me. First, the wife took my suggestion and went to see an attorney. The result was that she eventually sent me a copy of an email she sent to her husband stating that as a result of the meeting with the attorney, she felt there were some aspects of the agreement that she felt were unfair and now felt empowered to say so. She also wanted to come back to mediation but wanted it to proceed in private sessions. In very strong words she indicated that she would no longer be bulldozed. I checked with the husband to see if he agreed to proceeding in this fashion. He did. I eventually met with each of them individually and through a combination of that and several emails back and forth, they eventually reached a final agreement. This was not the first time I had used individual meetings with people. However, in light of the wife’s previous feedback, I was particularly attuned to the meetings and considering whether I wanted to make them a part of the process. Anatomy of a caucus: pros & cons Advantages • Both parties were much more relaxed with me individually. I felt like they could both let their hair down- so to speak, a lot more than in joint sessions.

• I was able to check in with each party and they were able to honestly tell me how they felt about the agreement or about the issues that remained. • I was able to be more direct with them and give them my thoughts about the situation or about the outstanding issues. Disadvantages • The process was more inefficient. I met with the wife, then spoke with the husband and felt more like a courier back and forth between each them. This did not at all promote the direct communication that I encourage in parties. • Meeting with parties individually somehow shifted the process from them looking for solutions to me looking for solutions. I also felt more pressure to help them find solutions. • I became much more directive with them (at their request). That is, they wanted to know what I thought. With my caveat that I come into this my own prejudices and world views and who cares what I think, I told them. This changed the dynamic of the mediation. I became more of a deal maker engaging in shuttle diplomacy. So what is the upshot of all of this? As usual, this raised more questions than Continued on page 26

Spring 2005 • Vol. 4 No. 2

MCFM INVITES YOU TO ITS 4TH ANNUAL...

ADR COURT NEWS By Christine W. Yurgelun

FAMILY MEDIATION INSTITUTE OCTOBER 21, 2005 8:30 AM - 5:00 PM Wellesley Community Center

FEATURING

KENNETH CLOKE, J.D., Ph.D. Ken is a nationally renown mediator, arbitrator, consultant and trainer, specializing in resolving complex multi-party conflicts. He is the Director of the Center for Dispute Resolution, and his university teaching includes law, mediation, history and social sciences. Ken is the author of many books, including Mediation: Revenge and the Magic of Forgiveness and Mediating Dangerously.

PLUS SEVEN ADDITIONAL WORKSHOPS ... TO BE ANNOUNCED

Early registration: received before September 15th MCFM MEMBERS $130, $165 non-MCFM members Late registration: received after September 15th MCFM MEMBERS $160, $195 non-MCFM members MAIL CHECKS PAYABLE TO MCFM 23 Parker Road, Needham Heights, MA 02494-2001

Item 1 In March, Chief Justice for Administration and Management Robert A. Mulligan announced the membership of the Trial Court Standing Committee on Dispute Resolution. The Honorable Gail Perlman, First Justice of the Hampshire Probate and Family Court, will serve as Chair of the committee. Chief Justice Mulligan has appointed the following court representatives: Cynthia Brophy and Judge Patricia Bernstein (Boston Municipal Court); Deborah Propp and Judge James Wexler (District Court); Suzette Fagan-Clarke and Judge Timothy Sullivan (Housing Court); Jacqueline Schelfaudt and Judge Joseph Johnson (Juvenile Court); Deborah Patterson (Land Court); Patrice Slater and Judge John Cratsley (Superior Court); Christine Yurgelun (Probate and Family Court); and LaDonna Hatton (Supreme Judicial Court). The committee will also include the following “non-court” members: Ericka Gray; Hon. (ret.) Patrick King; Diane Levin; Karen Levitt; James Marcellino; Donald Tobin; Lisa Wong; and Mark Zarrow. The committee will have its first meeting on Wednesday, April 27, 2005. Judge Perlman has indicated that the meeting’s agenda will include an orientation and discussion about the future direction of the committee, which will meet monthly. Item 2 Judge Perlman has announced that Chief Justice for Administration and Management Robert A. Mulligan is sponsoring a Court-Connected ADR Conference which will be held this June. One representative from each court-approved program will be invited. The conference is intended to focus on specific needs of court-connected programs as the Trial Court seeks to implement fully the Uniform Rules. The announcement states that “the conference will identify implementation issues and provide outreach and technical support for court-approved ADR providers.” The Massachusetts Office of Dispute Resolution (MODR) is partnering with the court to design, create and conduct the conference.

Christine W. Yurgelun is an attorney who coordinates courtconnected dispute resolution services for the Massachusetts Probate and Family Court. She can be contacted at (617) 788-6600.

limited scholarship assistance is available on written request

Family Mediation Quarterly

Spring 2005 • Vol. 4 No. 2

WHAT'S NEWS? Compiled By Les Wallerstein Divorce Ties Chile in Knots In 2004 Chile became the last country in the Western Hemisphere to legalize divorce. Everyone predicted an avalanche of divorce petitions... but almost no one is lining up outside the courts, except lawyers. "People don't trust the new process," said Carolina de la Cuadra, a public aid lawyer in Santiago, who specializes in marriage issues.... Now, couples seeking divorce can be forced to go through mediation, no matter how bitter their falling-out. "It doesn't seem logical to me," said Ms. de la Cuadra, "to require mediation if there is no desire by either party to be together." (Larry Rohter, NY Times: 1/30/2005) Canada: Same-Sex Marriage Bill Hits Parliament Justice Minister Irwin Cotler introduced legislation in the House of Commons to legalize same-sex marriage. Courts in most of Canada's provinces have ruled that prohibiting such marriages is unconstitutional. If the federal legislation is approved, Canada will become the third nation, after Belgium and the Netherlands, to allow same-sex marriage across the country. A final vote on the bill is expected by June. (Colin Campbell, NY Times: 2/2/2005) SJC Agrees to Hear Argument on Gay Marriage In its November 2003 decision legalizing gay marriages, the Supreme Judicial Court gave the state Legislature 180 days to implement the ruling. C.J. Doyle, a gay-marriage opponent and executive director of the Catholic Action League, sought to extend that time period pending the outcome of a process to amend the state constitution. Doyle's petition was denied, and his request for an expedited appeal was also rejected. Doyle's appeal of that ruling has slowly made its way through the court, which this week put the appeal on its calendar for this spring. (Associated Press, 2/11/2005) O.K., It's Over. So Now Let's Party The divorce party... is emerging as a celebratory occasion, complete with gift registries and a set of social protocols. Once a source of shame, divorce has become its own particular rite of passage.... It is impossible to determine how popular divorce and breakup parties are becoming because they are often small and take a variety of formsâ&#x20AC;&#x201D;but its evident that divorce celebrations are gaining converts.... Businesses, too, are hopping on the breakup party circuit, advertising their services as the perfect pick-me-up for the newly single.... Web sites include: www.theytookeverything.com; www.revengelady.com; and www.breakupnews.com. (Rachel Dodes, NY Times: 2/13/2005) SJC Agrees to Hear Challenge to 1913 Marriage Law The Supreme Judicial Court has agreed to hear a challenge to a 1913 state law that the Commonwealth has used to block out-of-state gay couples from getting married here. (Boston Globe: 2/25/05).

Family Mediation Quarterly

Spanish Parliament Approves Bill to Legalize Same-Sex Marriage By a vote of 183 to 136, the lower house in the Spanish Parliament voted to amend its marital law by adding the words, "Marriage will have the same requirements and results when the two people entering into the contract are of the same sex or of different sexes." The bill now goes to the upper house in the Spanish Parliament, but a rejection there can be overridden in the lower house, so supporters celebrated the vote as though it were final." (Renwick McLean, NY Times: 4/22/2005)

"My great grandfather had an affair with your great grandmother, so how about it?" Attributed to Camilla Parker Jones soon after meeting Prince Charles

To Caucus...continued from page 22

answers for me. I still have not made the decision to institute a private session in every mediation. It has made me think more about being more attuned to using private sessions and to offering it to clients if they think it would be helpful (this also has its pitfalls but that is a discussion for another day!) Oran E. Kaufman is a past president of MCFM who offers mediation and collaborative law through his general family law practice in Amherst, Northampton and Greenfield. Oran can be contacted at (413) 256-1575, or at oran@orankaufman.com.

Spring 2005 â&#x20AC;˘ Vol. 4 No. 2

EDITORIAL: A Deafening Silence Representing its largest investment to date, the Massachusetts Collaborative Law Council (MCLC) has contributed thousands of dollars to a national, "collaborative law practice" (CLP) advertising campaign focused exclusively on divorce. Its centerpiece is a 6-color brochure showcasing the words "supportive, considerate, sensible, constructive and mutual." The brochure is designed to hold dramatic, multi-colored inserts. One insert features a red-hot electric stove grill surrounded by traces of burnt residue that says "Its time we changed what divorce often feels like." Another displays the face of an innocent-looking child superimposed over the word "CASUALTY?" with blank "YES" and/or "NO" boxes to check. Itâ&#x20AC;&#x2122;s captioned "Divorce as usual isn't the only choice any longer."

MCFM NEWS ANNUAL ELECTIONS! On Wednesday, June 8, 2005, MCFM will hold its annual meeting and election at the Concord Courthouse at 2 PM. ALL members are eligible to run for any open position, and every member who wants to become more involved in MCFM is encouraged to submit his/her name in nomination. All officers and directors meet every alternate month (6 times a year), and attend a one-day, long range planning meeting usually scheduled at the end of June. The officers meet as the executive committee for one hour before each directors' meeting, which usually lasts about two hours.

Everyone familiar with the ravages of divorce litigation appreciates the need for alternatives. The problem with this CLP ad campaign is that it completely ignores mediation. The word mediation never once appears in any of these collaborative practice materials. By omitting all references to mediation, collaborative practice pretends to offer "the" alternative to the ordeal of a litigated divorce. Nothing could be further from the truth.

All officers are also directors. All officers are elected for two-year terms. While all directors are also elected for two-year terms, their terms are staggered. Thus half the directors are elected every other year. Since all officers serve the same two-year term, when an officer ceases to serve, her/his replacement serves the duration of the ex-officer's term.

The specter of collaborative law shunning mediation has worrisome implications.

THREE VOTING OPTIONS IN PERSON All MCFM members are welcome to vote at the annual meeting.

For more than a quarter of a century mediation has provided "the" alternative to divorce litigation. Ever since O.J. Coogler authored "Structured Mediation in Divorce Settlement" in 1978, divorce as usual hasn't been the only choice. Decades before the existence of collaborative law, tens of thousands of couples rejected litigation in favor of mediating supportive, considerate, sensible, constructive and mutual divorces.

BY EMAIL If you wish, you may vote at any time before the annual meeting by electronic ballots that will soon be made available to all members. The deadline for receipt of electronic voting is midnight, June 7th.

Virtually all the descriptions invoked by this ad campaign to trumpet the virtues of collaborative law practice describe mediation. Mediation has always been "solutions oriented" "humane" "respectful" "cost effective" based on "full disclosure" and designed to "preserve the long term interests of families."

PAPER BALLOT If you would prefer to vote by paper ballot at any time before the annual meeting, please email Dee Fraylick at <masscouncil@mcfm.org>. The deadline for receipt of paper ballots is the delivery of 1st class mail on June 7th.

Furthermore, mediation has always made allied professionals available to its clients on an "as needed" basis. So when the CLP ad campaign boasts of offering "an expanded team of mental health professionals, child specialists and financial consultants," it offers nothing new. However, while mediators have always recommended non-adversarial lawyers to divorcing clients seeking legal advice, this CLP ad campaign fails to mention mediation even as an allied profession.

We cannot overemphasize the importance of active MCFM member participation!

All votes cast before the election will be counted with those cast on June 8th.

NEXT MEMBERS MEETING RIGHT AFTER ANNUAL ELECTIONS

This spring the MCLC is co-sponsoring two-day workshop focused on divorce entitled "A Collaborative Team Approach to Managing Conflict." Their Continued on page 33 Family Mediation Quarterly

Spring 2005 â&#x20AC;˘ Vol. 4 No. 2

NEXT MEMBERS MEETING

MEDIATION PEER GROUP MEETINGS

CREDIT ISSUES FOR DIVORCING COUPLES Presented by Robert Loss & Dawn Evans

Merrimack Valley Mediators Group We are a group of family law mediators who have been meeting (almost) monthly since before the turn of the century! The criterion for membership is a desire to learn and share. Meetings are held at 8:15 AM on the last Tuesday of the month from January to June, and from September to November, at the office of Lynda Robbins, 11 Summer Street, Chelmsford. Please call Lynda at (978) 256-8178 or Karen Levitt at (978)4585550 for information and directions. All MCFM members are welcome.

June 8, 2005 2:15-4:15 PM Concord Court House Credit can be especially important for one or both spouses in divorce. Whether the divorce necessitates the refinancing the existing mortgage on the marital home or securing a new mortgage to buy another one, pre and post-divorce credit can have a major impact on the economic future of your clients. Come learn what a credit score is, why it matters, how to calculate it and ways to maximize your client's credit ratings. See Bob's and Dawn's article on page 17 for a preview.

Metro-West Mediators Group The Metro-West group (usually) meets on the second Friday of the month at the home of S. Tracy Fischer, located at 120 Cynthia Road, in Newton. Monthly meetings begin at 9:15 AM and are open to all MCFM members. Please call (617) 964-4742 or email tracyfischer@rcn.com for confirmed dates and directions.

always MEMBERS ARE WELCOME TO BRING GUESTS!

NEW BROCHURES!

NEXT EXECUTIVE COMMITTEE & BOARD OF DIRECTORS MEETING

MCFM’s newly redesigned brochures are available from Dee Fraylick Call (781) 449-4430, or email: masscouncil@mcfm.org

May 16, 2005 5 PM: Executive Committee 6 PM: Directors Meeting In the Office of Mark I. Zarrow Lian, Zarrow, Eynon & Shea 34 Mechanic Street Worcester, MA 01608 Phone: (508) 799-4461 Email: mzarrow@lzes.com Directions to Mark's office are available online at www.mcfm.org PLEASE EMAIL ANY AGENDA ITEMS FOR CONSIDERATION TO President Laurie Udell at <lsudellesq@aol.com>, or to any officer, all of whom are listed in the DIRECTORATE on page 35. Family Mediation Quarterly

FMQs The cost of additional, printed FMQs is $5.00 per issue for members, and $7.50 for non-members. Supplies are limited. Please mail requests for additional copies to DeLaurice Fraylick, 23 Parker Road, Needham Heights MA 02494-2001, and enclose a check made payable to MCFM. An archive of all but the most recent edition of the FMQ is free online in PDF on the MCFM web site at www.mcfm.org. This resource offers an expanding trove of meditation materials which is easily accessed by a cumulative index.

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ANNOUNCEMENTS ONE-DAY INTRODUCTION TO MEDIATION SKILLS June 7, 2005 9:00 AM - 5:00 PM Boston Law Collaborative, LLC 99 Summer Street – Suite 1600 Boston, MA 02110 This 8-hour, introductory course will provide you with an overview of mediation and hands-on experience to help you decide whether to pursue further mediation training. This program will also be useful for people who do not wish to become mediators but would like to incorporate mediation skills into their life and work. Space is limited to 20 participants. Registration received 30 days or more prior to the program date: $200, thereafter: $250. For more information, please contact Israela Brill-Cass at 617-439-4700 or IBC@BostonLawCollaborative.com

THE HARVARD NEGOTIATION INSIGHT INITIATIVE SUMMER LEARNING FORUM June 20-June 24, 2005 at Harvard Law School Three concurrent courses will be taught by two distinguished faculty members: an expert from the dispute resolution field paired with a senior teacher from a spiritual discipline. The teams will explore the interface between law (Course A), mediation (Course B) and negotiation (Course C) with principles and practices of ancient wisdom. (A): Cultivating Balance: Mindfulness in the Law and Dispute Resolution, with Leonard Riskin and Melissa Blacker. (B): Neutrality’s Challenge: Professional Distance Meets Personal Engagement, with Jack Himmelstein and Norman Fischer. (C): Beyond Yes: Deeper Wisdom and the Art of Negotiation, with Erica Ariel Fox and Marc Gafni. Each course is limited to the first 40 people who register. For details and to register, visit www.pon.harvard.edu/hnii. Questions? Email Cristin at cmartin@law.harvard.edu. Family Mediation Quarterly

UNTANGLING “BLENDED FAMILY” RELATIONSHIPS: HELPING PEOPLE WHO LIVE IN STEPFAMILIES Presented by Dr. Patricia Papernow Friday, September 16, 2:00 pm to 5:30 pm Saturday, September 17, 8:30 am to 4:45 pm Hudson, MA (a pretty ride 25 miles west of Cambridge) $205 includes lunch ($185 if postmarked by July 1st) Whether you work with adults or children, with individuals, couples or families, you have many clients who are experiencing the intense challenges and complexities created by what we have (inappropriately) dubbed “blended families.” The issues may appear as a primary focus for therapy or as background to other concerns. In this two day workshop you will deepen your understanding of the differences between successful stepparenting and successful biological parenting. You will learn the critical differences between stepfamilies and first-time families, and many specific strategies that enhance stepfamily development. You will also learn some “Scripts to get by on” that will help your patients to constructively address common stepfamily dilemmas such as children’s loyalty binds and anxious or toxic exspouses. Patricia Papernow draws upon 30 years of clinical experience with individuals and couples in stepfamilies, and a solid grasp of current practice and research. For more information or to register please call (978) 568-0025, or email ppapernow@aol.com.

FIVE-DAY COMPREHENSIVE MEDIATION TRAINING October 13, 14, 15, 28 & 29, 2005 Wellesley College Club Offered by Divorce Mediation Training Associates DMTA's 40 hour divorce mediating training program is presented by John A. Fiske, Diane Neumann and Philip D. Woodbury — all past presidents of MCFM. This course includes luncheons and extensive written materials. For more information and to reserve a place please call 617-354-7113, or visit our web site, www.dmtatraining.com.

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COMMUNITY DISPUTE SETTLEMENT CENTER Building Bridges • People to People • Face to Face 60 Gore Street Cambridge, MA 02141 Established in 1979, the CDSC is a private, not-for-profit mediation service dedicated to providing an alternative and affordable forum for resolving conflict. CDSC also provides training programs in mediation and conflict management to individuals and organizations. For more information please contact us by phone: 617-876-5376, by email: cdscinfo@communitydispute.org, or visit our web site: www.communitydispute.org.

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

Editorial...continued from page 27

"collaborative team" consists of just four professions: child specialists, financial specialists, client coaches and lawyers. Once again mediators are excluded. Chip Rose, a nationally renown trainer of mediators and collaborative lawyers has said "collaborative law stands on the shoulders of three decades of developed concepts and skills that make up the field of mediation.... Their common history is to be recognized, honored and celebrated." Instead, the MCLC has turned a blind-eye to mediation that cannot be explained by inadvertence or oversight. By ignoring our common history, it renders mediation unrecognized, uncelebrated and dishonored. The advent of collaborative law was

welcomed by Massachusetts mediators. The backbone of MCLC's membership is mediators. In this context, the specter of collaborative law shunning mediation has worrisome implications. To affirm mediation's rightful place as a preferred option for divorcing couples, the MCLC must make meaningful changes. The MCLC must stop funding campaigns that shun mediation, and start including mediators as allied professionals for referral and teaching purposes.

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

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

Family Mediation Quarterly

Spring 2005 • Vol. 4 No. 2

EDITORâ&#x20AC;&#x2122;S NOTICE

DIRECTORATE MASSACHUSETTS COUNCIL ON FAMILY MEDIATION, INC. 23 Parker Road, Needham Heights, MA 02494-2001 Local Telephone & Fax: (781) 449-4430 masscouncil@mcfm.org www.mcfm.org

TOLL FREE: 1-877-777-4430

MCFM

Family Mediation Quarterly Les Wallerstein, Editor 1620 Massachusetts Avenue Lexington, MA 02420-3802 (781) 862-1099

wallerstein@socialaw.com OFFICERS President

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

The FMQ is dedicated to family mediators working with traditional and non-traditional families. All family mediators share common interests and concerns. The FMQ will provide a forum to explore that common ground.

Vice-President

Kathleen A. Townsend, Divorce Mediation Group, Inc., 1441 Main Street, Springfield, MA 01103, (413) 733-4444, 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.

Vice-President

Marion Lee Wasserman, 199 Wells Avenue, Suite 201, Newton, MA 02459(781) 449-4815, mlw@reachaccord.com

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.

Secretary

Mark I. Zarrow, Lian, Zarrow, Eynon & Shea, 34 Mechanic Street, Worcester, MA 01608, (508) 799-4461, mzarrow@lzes.com

Treasurer

Debra L. Smith, 134 Main Street, Watertown, MA 02472 (617) 924-6728, lawdeb@aol.com

DIRECTORS

Lynn K. Cooper, Robert V. Deiana, Jonathan E. Fields, Howard I. Goldstein, Mary T. Johnston, Michael L. Leshin, Karen J. Levitt, Harry E. Manasewich, Steven Nisenbaum, David River, Lynda J. Robbins, Patricia A. Shea, Barry L. Shelton & Les Wallerstein

DIRECTORS EMERITUS

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

ADMINISTRATOR DeLaurice Fraylick, 23 Parker Road, Needham Heights, MA 02494-2001, (781) 449-4430, masscouncil@mcfm.org

Family Mediation Quarterly

The FMQ is mailed to all MCFM members. Copies are provided to all Probate & Family Court Judges, all local Dispute Resolution Coordinators, all Family Service Officers and all law school libraries in Massachusetts. An archive of all previous editions of the FMQ are available on-line in PDF at <www.mcfm.org>, accompanied by a cumulative index of articles to facilitate data retrieval. MCFM members may submit notices of mediation-related events for free publication. Complimentary publication of notices from mediation-related organizations is available on a reciprocal basis. Commercial advertising is also available. Please submit all contributions for the FMQ to the editor, either by email or computer disk. Submissions may be edited for clarity and length, and must scrupulously safeguard client confidentiality. The following deadlines for all submissions will be observed: Summer- July 15th Fall- October 15th Winter-January 15th Spring- April 15th All MCFM members and friends of family mediation are encouraged to contribute to the FMQ. Every mediator has stories to tell and skills to teach. Please share yours.

Spring 2005 â&#x20AC;˘ Vol. 4 No. 2