M C F M ’s
FAMILY MEDIATION QUARTERLY Vol. 1 No. 1
Summer 2002
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
Contents
Thanks for the past, plans for the future:
1 Editorial: An Invitation
The role of President of MCFM is facilitated by the dedicated, thoughtful individuals who have steered the organization during past years and continue to enthusiastically contribute. Beginning my run around the bases, I tip my hat in appreciation to Les Wallerstein, who guided the organization as President during 2001-2002, carrying out behind-the-scenes work in election and by-law changes, complaint policy revisions, and initiating discussion on mediation ethics issues. Bouquets to Marcia Tannenbaum for her years as editor of MCFM News and member of the Board of Directors, and to Tracy Fisher for her work as Treasurer and Director. And a salute of thanks for their years of service in a number of capacities to Directors Oran Kaufman and Janet Wiseman. Thank you also to Polly Tatum, who has been a Director. Welcome to new members of the Board of Directors, Thomas Hefele, David River, Debra Smith, and Mark Zarrow.
2 "First You Capture The Mind" Gathering V by John Fiske 7 Ethics 101 by Oran Kaufman
Plans for the coming year include the production of a revised newsletter, the Family Mediation Quarterly, as already in evidence, and the preparation of a referral directory of professionals, such as tax accountants and pension appraisers, in areas related to mediation issues. Our member education meetings will continue to be held on Wednesdays of alternate months beginning in October. Please note the schedule elsewhere in the FMQ. This year we hope to try duplicating each program in another part of the state beyond the immediate Boston area, to reach more of our members. We look forward to seeing you at these meetings. On a note that we can always learn from others, an article appeared in the June 20th issue of The Boston Globe by Lawrence Cohen, a psychologist, headlined "In resolving conflict, why not go ape?" Cohen points out that primates have worked out intricate, nonaggressive strategies for conflict resolution, as explained in a book, "Peacemaking Among Primates" by Frans de Waal. Apparently, chimps are even known to have a female serve as mediator to assist two fighting males in reconciling. Cohen states that, "After seeing so many examples of human beings arguing and fighting over who should apologize or who should back down," the reconciliation strategy of a chimpanzee "looks pretty appealing." Dedicated to non-adversarial dispute resolution as well, the Officers and Directors welcome your comments on how the organization can serve you better. Let us hear from you. Mary T. Johnston is an attorney mediator who can be contacted at (781) 431-8552, or by email at <maryt.johnston@erols.com>.
Family Mediation Quarterly
8 ADR News From The Courts by Christine W. Yurgelun 10 Alimony: What It Is And Isn't by James McCusker 12 Alimony Statutes Compared: Maine & Massachusetts 14 Custody Chaos, Personal Peace: A Book Review by Kathleen Townsend 14 Practice Tip: No Voluntary Reductions of Child Support by Les Wallerstein 15 Resolution Reflections by Jay Uhler 17 An Assessment Of The New Child Support Guidelines For Children In Low-Income Families by Peter Coulombe 18 Child Support Guidelines: A Checklist by Fern Frolin 19 Characteristics Of A Mediator by William E. Simkin & Nicolas A. Fidandis 21 Mortgage Mysteries Revealed by Robert Loss and Dawn Evans 23 Announcements 25 Letters to the Editor 26 Join Us
27 Directorate 28 Editor's Notice
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Editorial
"First You Capture The Mind" Gathering V, April 26 & 27, 2002 by John Fiske
An Invitation Welcome to the first edition of MCFM's Family Mediation Quarterly! Family mediation remains a young and emerging profession. We believe that no one is more expert on the subject of family mediation than its practitioners. We intend to share the wealth of our collective experience. We will strive to disseminate the widest possible array of information that affects the practice of family mediation. We seek to explore the ethical issues and paradoxical complexities that underlie our work. We invite every MCFM member, each practitioner and all friends of family mediation to contribute. The FMQ welcomes articles on every aspect of the theory & practice of family mediation, including: legal & legislative updates, ethical questions, news items, commentaries & controversies, practice tips, mediator profiles, anecdotes & tales from the trenches, book reviews, letters to the editor, and notices of regular meetings & upcoming events. The FMQ also seeks quotes, graphics and topical cartoons. Since privacy is a paramount concern, all contributions must scrupulously safeguard client confidentiality. Please address all submissions by email to Les Wallerstein at <wallerstein@socialaw.com>
Family Mediation Quarterly
Numbers: For Gathering V, 100 registrants plus numerous presenters and several spouses from the 6 New England states and 1 New Yorker voyaged through 11,135 snowflakes (one CT mediator was late because she lowered her Volvo window to pay the toll on the way to Westford, couldn't raise it and feared frostbite if she didn't get it fixed before showing up). In varying combinations they attended 25 workshops, heard one keynote speech about 7 unintended consequences of mediation, heard one mediation couple talk about several amazing outcomes of their mediation process, ate three meals, bought about 150 books and went home with at least a dozen enriched memories, six new mediation approaches and one workbook full of phone numbers, email addresses and 15 articles about mediation, from how anger triggered by the amygdala primitive part of your brain floods the neocortex so that allowing anger to ventilate may not reduce it after all (What Is Anger? How Do Mediators Handle Angry Disputants?) to the remarkable statistical study by Mary and Wally Marcus submitting good evidence that the financial results of 200 mediated divorces are not significantly different that those in 200 adversarial divorces (To Mediate or Not to Mediate: Financial Outcomes in Mediated Versus Adversarial Divorces). It's all in your Gathering Workbook, thanks to Dee Fraylick among others. For those who did not attend, just remember that we fortunate attendees gave up enjoying 1/2 of a lovely spring weekend, 1 full moon and on 4/27/02 the first Fenway Park Red Sox 0-
hitter in 37 years. Food, For Thought And Otherwise: Gathering V began with a meal, something appreciated by those raised in a Jewish household. The opening panel briefly touched on some of the many mediation activities and issues in the several states, and again we heard we are dealing with similar challenges all over NE, such as public education and court ambivalence. Some web sites are listed if you want to learn more about a particular state or its council. Try http://www.neacr.org for the New England chapter of the Association for Conflict Resolution. Connecticut: Michael Becker spoke of soul searching following the bar grievance against non-attorney mediators, favorably resolved; the decision of the CT Council for Divorce Mediation (http://www.ctmediators.org) to address credentialing and to define best practices of mediation for all mediators, and renewed interest in mediation by more clients wanting mediation and more professionals wanting mediation training. Maine: Kathryn Ainsworth managed to cram about 10 ME projects into her allotted 5 minutes. Strategic planning for its state council included consideration of the right name, since they have a broad base of mediators, public and private, in several courts, and are trying to identify themselves. MADRP, the ME Association for Dispute Resolution Professionals, has a Continued on next page
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number of activities on their web site (http://www.madrp.org) including various services to members: several referral systems, public service announcements about mediation, mentoring projects for new mediators including a handbook about the mentor and (mentee?) (mentoree?) (mentored?) relationship, an active court mediation program going back to about 1985, credentialing for mediators (about 50% lawyers and 50% other backgrounds). By court rule ME now has mandatory mediation of all Superior Court cases as of January 1, 2002. To address the perennial question how long alimony should last, they now have a statute suggesting guidelines, and a copy is included in this edition of the FMQ. As ME goes, so goes the nation, someone said once; in the contemporary world of family mediation, they seem quite ahead in some respects. Massachusetts: Kathy Townsend described the MA Council on Family Mediation (http://www.mcfm.org) activities including membership educational programs, newsletter, certification of mediators, complaint procedure, standards and meetings with regional NE mediators to arrange programs without conflicts. The court related ADR program continues, with no decision yet about qualifications for mediators. The Department of Revenue has block days for collecting child support and uses mediators to deal with the ancillary paternity and parenting plan issues inevitably raised at the same time. She has been using radio spots to advertise mediation and getting many calls, feeling a high level of consumer readiness.
New Hampshire: Ellen Dinerstein reported the NH Mediators Association had become the NH Conflict Resolution Association, P.O. Box 7228, Concord 03301, joining other NH mediation groups. The courts are mandating some mediation, they are about to have their state conference, and there is some new energy. (http://www.state.nh.us/marital) New York: Julie Denny said NY has proposed its own Uniform Mediation Act. Amidst a coalition of 7 mediation groups advancing mediation, there are still lawyers in NY questioning whether a lawyer acting as mediator is allowed to draft the separation agreement. She is among those who continues to try to get the word out about mediation. (www.nysdra.org) Rhode Island: Bryna Bettigole, describing the familiar up and down cycle of mediation evolution in her state, says they are at an ebb. The RI family mediation council is considering merging with the RI community mediation association. One encouraging sign is the mediation orientation of Chief Justice Frank Williams of the RI Supreme Court. RI has a federal grant to provide mandatory mediation in the probate court for unmarried parents. (www.courts.state.ri.us/family/mediation) Vermont: Greg Hessel (email: ghessel@mfs.org) spoke of several active areas, including a state subsidy for mediating post divorce disputes, civil court mediation, mediation of employment disputes, environmental cases, permanency mediation. A federal grant for examining mediation of adult guardianships has been granted to Georgia, Michigan and VT.
Family Mediation Quarterly
Their imminent state conference reduces the number of Vermonters at Gathering V. (http://www.nespidr.org/VT.htm)
ethical qualms about mediating disputes involving huge institutional misbehavior, ranging for chemical pollution to venal accounting. When he wakes up at 4 a.m.
All seven states talked about spreading the public All seven states talked about word about mediation. So did Eric Green. By his spreading the public word about highly visible participation mediation. in business litigation he helps the public learn that mediation exists. For us in the family singing, "There is nothing like a fraud," he context, where publicity is shunned, that knows it's time for self-examination, not to mediation vernacular helps us as we try to mention wonder about the role of the educate families about the relevance of judiciary, the law and mediation in mediation to them. addressing ethical decay in the society itself. Keynote Speaker: After dinner Eric Green discussed seven consequences of For those interested in the Microsoft mediation which he did not intend when he mediation between the company and the started Endispute, back in about 1980, US Justice Department, the mediation prefacing his remarks by saying his dance he described was intricate, practice of mediating complex business demanding respect for the role of client, disputes is very different from the lawyer, judge, attorney general and even challenge of mediating between divorcing the press; another lesson in the need for spouses, yet he still thinks there may be listening. Some of us were enthralled, and common elements or consequences which others tried to figure out how this expertise we neither desire nor intend: relates to their own quest to improve their family mediation skills and understanding. Mediation has a chilling effect on negotiation; Parties in mediation lose the Friday afternoon and Saturday morning ability to talk directly; Parties abdicate were full of workshops. The evaluations responsibility for achieving a result; Parties commented repeatedly on the high quality now have permission to posture; Parties of the presentations and the advanced hijack the mediator, trying to woo him to nature of the subjects. A number of people their side; Wait for Godot: let the other side registered for workshop that would help propose a solution; and Mediation becomes them meet subject matter requirements for another routine step in the inevitable course certification, such as family systems. A of a three year litigation, maybe merely number of presenters were new to the another discovery device. Gathering, including Jim McCusker and Frank Peters on valuing assets, Greg Hessel The second half of his talk turned to his Continued on next page
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on working with groups, Cynthia Baumann on non-traditional families, Lori Ulm a certified divorce planner, Anita Robboy discussing aftermarriage, Susan Dickie explaining college funding, Bob Loss and Dawn Evans revealing mortgage mysteries, Frederica See on three methods of insuring alimony and child support, Alice Love a marital master from NH and Beryl Minkle, John Dugan and Jay Uhler explaining how mediating therapists identify and work with the emotions of the parties. Veterans, grizzled and otherwise, rounded out the program, from getting people unstuck to helping couples talk about alimony. Amazing Outcomes: We ended with Amazing Outcomes of Our Mediations. Featured at our final lunch were Jane and Joe, who used mediation to get divorced in 1994 and got along so well afterwards that his mother remarked one day, "That divorce will never last." She was right. They remarried in 1998, and were generous enough to accept Janet Wiseman's invitation to be our closing speakers. They told the respectful audience how mediating the divorce with John Fiske and using mediation therapy with Janet allowed them to keep their dignity and remain friends throughout the divorce process. Their insights for us mediators, in short: Keep doing what you are doing. Mediation is a very valuable service, and a dramatic contrast with the combative approach followed by some of their own divorcing friends. "Get the word out!" they said repeatedly. From the beginning to the end, the mediator must remain neutral and nonjudgmental. "We tried marriage counseling and we quit. As soon as a counselor sided with me, I knew it wouldn't work because
Joe would reject it," said Jane. Joe liked mediation from the beginning because John gave them a road map, a chart through the divorce that showed what the law expected of them that they could adjust to fit their own needs. Jane came into the process depressed and said she felt huge relief because the process and the advice to make their own choices just felt right. One of the long term gains for Jane was Janet's referring her to a financial planner who has helped Jane grow significantly in understanding and handling her own assets during and after the divorce. In response to several questions about how they used their lawyers during the mediation process, they said the lawyers did not play a large role and were used mostly to check over the Separation Agreement before signing. Their lawyers did not accompany them to the court hearing, which took about three minutes. One of the amazing outcomes was their description of the court hearing: the case before them involved two lawyers for each spouse and it was such a show that Joe and Jane decided to stick around after their own hearing and watch the entertainment. They were asked about the mediator's "road map," whether it was oral or a written guide. Joe's response was a good summary of what we do as mediators if we are to be realistic, successful, relevant and useful to a civilized society. "First you capture the mind. Once the concept is sold, the road map is apparent."
the success of Gathering V were Dee Fraylick doing everything and Jeanne Kangas, Oran Kaufman, Karen Levitt, Lynda Robbins, Doris Tennant, Laurie Udell, Les Wallerstein, Janet Wiseman and I propping her up. Janet did the brochure, Jeanne and Laurie dealt with the hotel and I made around 893 phone calls and emails starting last September. As good as it was, there was a lot of talk about how to improve Gathering VI in 2004, if we have one. We missed many absent CT, ME, RI, VT and other mediators who were not able or willing to attend yet another conference this spring. "There is a 'same old, same old' quality," said one evaluation. There are many competing conferences and organizations pulling at our precious time. Paul Charbonneau, who
had to cancel his workshop at the last minute, wondered if we should have an all day clambake in Ipswich so we can just get together and talk about different aspects of mediation, in the enjoyment of each other's company; others still want the structure of planned workshops and presentations. We have two years to think and talk about what we should do, if anything. Is it worth the effort? Should we forget it, or merge with another conference? What do the other NE mediation organizations and other cosponsoring associations think? Who wants to run the whole caboodle? Suggestions are welcome. John Fiske is an attorney mediator. He can be contacted at (617) 354-7133, or by email at <jfiske@hfwr.com>.
"Your Honor, this woman gave birth to a naked child!" (Robert Minor, 1915)
Epilogue: The principal contributors to
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Ethics
ADR News From The Courts Ethics 101 by Oran Kaufman
I find that unlike the practice of law, where ethical quandaries come up occasionally, in the practice of mediation they come up almost daily. I have my theories about why that might be, but I will leave that for another day. Here are two situations which raise some interesting questions. Hypothetical #1 You have completed mediation. The parties have reached an agreement. Several weeks later, the husband calls you. The first question is, do you take the call? Assuming you take the call, the husband asks you about the health insurance provision in their agreement. More specifically, he tells you that the wife's employer, which was supposed to continue to cover his health insurance is now saying it will not cover him and he is asking for an interpretation of the agreement which you drafted? This situation does not in and of itself raise an ethical situation but it could depending on how it is handled. The ethical problem becomes more and more likely the more you attempt to be a "full-service" mediator. That is, many clients come in with a desire that you, as their mediator, do everything from help them reach agreement to drafting the agreement and drafting the postagreement documents, such as deeds, QDROs etc. How would you handle this situation? Should you talk to the husband at all post-mediation? If you talk to the husband post-mediation, should you inform the wife about the call? Should you answer any of the husband's questions over the phone? Should you simply refer him to a lawyer?
By Christine W. Yurgelun Hypothetical #2 You met with a couple for an initial consultation over one year ago. The parties set up a meeting. The wife shows up. The husband calls on his cell phone and says that his car broke down and he will not be able to make it. The wife, sitting out in the waiting room is chomping at the bit and asks you if she could meet with you. She tells you that they have worked it all out and they are in agreement and need you to write up an agreement. What do you do? Do you talk to the wife? Do you meet with the wife without the husband? If the wife starts telling you about the case in the waiting room, what do you do? Do you let her proceed? Both of these scenarios revolve around the issue of how to deal with communications outside of the mediation room with only one party. It is an area where the mediator needs to have some clear boundaries and guidelines. Let's hear your thoughts about how you would handle these two situations. We would love to hear what guidelines you have set up for contact with clients outside of the mediation itself. Ethics 101 is an ongoing column focusing on the ethical issues that abound in the context of family mediation. It is the natural extension of "Ethics Corner" that began in the MCFM News. Comments or suggestions for future columns are invited. Oran Kaufman is an attorney mediator. He can be contacted at (413) 253-3900, or by email at <okaufman@bfbk.com>.
Family Mediation Quarterly
promoting opportunities for mutuallyagreed upon resolutions to custody and/or visitation disputes.
Typically, all of the DOR’s cases are heard as a “block” on the same day each week. “Block Day” is Thursday at Suffolk. The Access and Visitation Parent Orientation Program is conducted each Thursday morning, prior to the commencement of the DOR’s cases being heard that day. After hearing a presentation and watching a video covering such issues as the importance of co-parenting, the effects of conflict on children, and the emotional and financial needs of children, the attending parents are introduced to the possibility of mediation. ...studies suggest that children In order to build on the who have contact with their nonAccess and Visitation custodial parent are more likely to Parent Orientation Program previously established at receive child support... Suffolk, the Suffolk Division was selected as the matters. The DOR also funded an location of the pilot on-site screening and additional service at Suffolk: on-site mediation programs. When both the mother mediation. This service offered parents a and the father of the same child attended mediator’s assistance to develop a the same Access and Visitation parent parenting plan and to discuss visitation orientation program, the “pairs” were issues immediately following the screening directed to the on-site screener. (and prior to their court appearance). The (Attendance at the parent orientation is not issue of (level of) support was excluded by mandatory). the DOR as a topic for possible negotiation We were able to establish a consistent during these mediation sessions. approach to conducting screening sessions, The Massachusetts Access and Visitation refine screening protocols and reporting Project is funded through a block grant forms with Josh Hoch, an experienced created by the Personal Responsibility and mediator and the Director of Mediation Work Opportunity Reconciliation Act of Services at Mediation Works, Inc., serving 1996 (federal welfare reform) to assist as the screener at Suffolk every week. states in developing programs to facilitate Through his weekly work, Josh became positive visitation experiences in low familiar with - and to - DOR personnel. As conflict relationships. Because studies a result he forged successful working suggest that children who have contact relationships with DOR staff. We were with their non-custodial parent are more pleased that on several occasions, DOR likely to receive child support, both the DOR and the courts have an interest in Continued on next page The Department of Revenue @ Suffolk: The Probate and Family Court established pilot, on-site screening programs in the Suffolk and Middlesex Divisions in collaboration with the Department of Revenue’s Child Support Enforcement Division (DOR). The aim was to determine the appropriateness and acceptability of mediation in those cases where never-married parents were brought before the court for support-related
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attorneys self-referred their cases for screening and mediation, and that those litigants were able to develop parenting plans. All ADR programs previously approved in Suffolk pursuant to SJC Rule 1:18 (the Uniform Rules on Dispute Resolution) were invited to participate in the pilot onsite mediation program. MCFM was one of four programs which elected to do so, and the four programs were assigned weekly dates on a rotational basis; each program then contacted and scheduled the individual mediators serving on its behalf. (Those approved programs which did not elect to provide on-site mediation at the courthouse still remained on the list as approved to receive referrals from the screener if the parties elected to pursue offsite mediation.) The individuals serving on behalf of MCFM were drawn from MCFM’s certified mediator roster and included Frank Benson, June Kilmarx, Karen Levitt and Les Wallerstein. Update: From July 5, 2001 through May 3, 2002, ninety-one pairs (mother and father of same child) attended an on-site ADR screening session at Suffolk. Of those, forty-six cases were determined to be appropriate for, and elected to participate in, the on-site mediation program. With the assistance of the on-site mediator, thirtynine parenting plans were developed and entered in Suffolk. Regrettably, continuation of the pilot onsite screening and mediation programs, as well as the Access and Visitation Parent Orientation Program at Suffolk and Middlesex is uncertain. Discussions about funding are ongoing. The Probate and Family Court is grateful for MCFM’s support, participation and coordinating efforts, and especially the on-site mediation
services provided by MCFM's mediators. The Supreme Judicial Court's Standing Committee on Dispute Resolution: The Supreme Judicial Court (SJC) appointed a Standing Committee on Dispute Resolution in 1993. Its purpose was to advise the SJC and the Chief Justice for Administration and Management regarding standards for court-connected dispute resolution services, and the implementation of and oversight of courtconnected dispute resolution throughout the trial court. The Uniform Rules on Dispute Resolution (SJC Rule 1:18) were approved and adopted by the SJC on May 1, 1998 and became effective February 1, 1999. Update: A recent letter from Chief Justice Marshall to Judge John Cratsley indicated that the Standing Committee will be reconstituted as a Trial Court Committee, “making it smaller and more court-based.” However, in light of the uncertainties generated by the current fiscal crisis, the transfer to the Trial Court will be postponed for at least a year. On Wednesday, June 19, 2002, the SJC held a reception to thank the members of the Standing Committee for their service. Justice Sosman and Chief Justice Dortch-Okara expressed appreciation for the committee members’ dedication and hard work. The SJC will appoint a “new” committee over the summer. It is expected that the reconstituted committee will include both continuing and new members. Judge Cratsley will continue as chair of the committee. In addition to the chairperson, the committee will consist of one member Continued on page 20
Family Mediation Quarterly
Taxes Alimony: What It Is And Isn’t By James McCusker
tickets, and calling it alimony, will not work. This is the case even if there is an established fair market value for these items.
How does the Internal Revenue Service (IRS) define alimony and what do you have to include in your separation agreements to keep that august institution appeased? Fortunately, in this area of the tax law unlike many others, the IRS gives us some very specific guidance as to what does and
Number 2. Cash payments must be received, by or on behalf of a spouse, under a divorce or separation agreement in order to qualify as alimony. You're covered on the latter part of this requirement as long as the agreement is in writing. It can be as formal as a decree of divorce or as simple as written agreement A shared dwelling unit will not be penned by the parties involved. Temporary considered two separate Support orders qualify. The households even if the parties term "on behalf of a spouse" means that those cash physically barricade themselves payments as outlined in the in opposite ends of the dwelling agreement can be made to a third party on behalf of the and place booby traps in the payee spouse. So payments intervening space. of rent, mortgage, or cosmetic surgery liabilities what doesn't qualify as alimony. What of the payee spouse, made pursuant to the follows is a 7- part mechanical test for separation agreement, will qualify as determining whether the support payments alimony. The only caveat here is that any outlined in your separation agreements payments made by the payor spouse which qualify as alimony in the eyes of the IRS. go toward maintaining property used by the If they fail on any one of the 7 counts payee spouse, but that is still owned by the listed, the payments will not be considered payor spouse, are not payments on behalf alimony and instead will be recast as either of the payee spouse. This would therefore child support or non-taxable support. A exclude any mortgage payments, real estate change in the status of support payments taxes, or hazard insurance premiums paid can subvert the intent of the original on that portion of the marital residence still agreement and create a tax nightmare for owned by the payor spouse. the parties involved. Number 3. IF the separation agreement Number 1. In order for support payments specifically designates support payments as to qualify as alimony they must be made in not includible in income or not allowable cash, plain and simple. This means that as a deduction then those payments will not placing a monetary value on the use of the ex-spouse's vacation home or Red Sox Continued on next page Summer 2002 • Vol. 1 No. 1
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qualify as alimony. There's not much gray area here. Number 4. At the time of the support payment the payor spouse and the payee spouse cannot be members of the same household, otherwise the payment will fail to qualify as alimony. A shared dwelling unit will not be considered two separate households even if the parties physically barricade themselves in opposite ends of the dwelling and place booby traps in the intervening space. If one of the spouses vacates the shared dwelling within 30 days of payment, alimony status for that payment will be preserved. Number 5. Alimony designation will be denied if there is any liability to make payments beyond the death of the payee spouse. This would also include any provisions within the agreement for the acceleration of payments at the death of the payee. For instance, let's say the divorce agreement called for the payment of alimony in the amount $24,000/year to be paid for 10 years. It further provided, that if the payee spouse were to die before the 10 year period expired the remaining payments were to be made as a lump sum to a trust established for the maintenance of the payee spouse's miniature train collection. In this case none of the payments made would qualify as alimony because payments were required to be made beyond the death of the payee spouse and for the full amount of the unexpired payments. In some cases not all of the alimony payments will have to be recast under this provision. It really depends upon how much would still have to be paid in the event of the payee spouse's death. In my example the payor spouse was obligated to pay the full $240,000 regardless of when the payee spouse died. Therefore, all of the payments would be
Alimony Statues Compared: Maine & Massachusetts
denied alimony treatment. Number 6. Any part of the support payment that is fixed with respect to child support shall not qualify as alimony. Now on the surface this appears redundant. If you call something child support why would you want it cast as alimony. The nub here really revolves around the unintended re-characterization of an alimony payment as child support. The most common occurrence of this is when a payment designated as alimony is reduced upon some child related contingency specified within the separation agreement. A child related contingency could include things like, graduation from high school or college, marrying, or reaching a certain age. The amount by which the alimony payment is reduced upon one of these events would be recast as child support. This reversion to child support is retroactive to the inception of the payment stream. This can create quite a messy tax problem. You can avoid the impact of these child related contingencies by properly wording your agreement so that reductions in alimony take place outside of certain prescribed dates. Number 7. Alimony can't exist where a joint return is filed by the payor and payee spouse. This situation could arise when there is support order in place calling for the payment of alimony, but the parties are not legally divorced by year end. For tax purposes it may make sense for them to file jointly, in which case there would be no alimony recognized, either as income or a deduction. I know that when dealing with rules promulgated by the IRS there will always be gray areas and confusion. I hope this Continued on page 20
Family Mediation Quarterly
" ... this society (of lawyers) hath a peculiar chant and jargon of their own, that no other mortal can understand, and wherein all their laws are written, which they take special care to multiply; whereby they have wholly confounded the very essence of truth and falsehood." Jonathan Swift: Gulliver's Travels
Maine
Massachusetts
ยง951-A. SPOUSAL SUPPORT
Chapter 208. ยง 34. Alimony or assignment of estate; determination of amount; health insurance. Upon divorce or upon a complaint in an action brought at any time after a divorce, whether such a divorce has been adjudged in this commonwealth or another jurisdiction, the court of the commonwealth, provided there is personal jurisdiction over both parties, may make a judgment for either of the parties to pay alimony to the other.
1. Statement by court. An order granting, denying or modifying spousal support must state: A. The type or types of support, if support is awarded; B. The method or methods of payment,and the term and limitations imposed, if support is awarded; C. If the support awarded is not, in whole or in part, subject to future modification; and D. The factors relied upon by the court in arriving at its decision to award or deny spousal support, if the proceeding was contested. 2. Types of spousal support. The court may, after consideration of all factors set forth in subsection 5, award or modify spousal support for one or more of the following reasons. A. General support may be awarded to Continued on next page
In addition to or in lieu of a judgment to pay alimony, the court may assign to either husband or wife all or any part of the estate of the other, including but not limited to, all vested and nonvested benefits, rights and funds accrued during the marriage and which shall include, but not be limited to, retirement benefits, military retirement benefits if qualified under and to the extent provided by federal law, pension, profitsharing, annuity, deferred compensation and insurance. In determining the amount of alimony, if any, to be paid, or in fixing the nature and value of the property, if any, to be so assigned, the court, after hearing the witnesses, if any, of each party, shall consider the length of the marriage, the Continued on next page
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Custody Chaos, Personal Peace Maine (Continued)
Massachusetts (Continued)
provide financial assistance to a spouse with substantially less income potential than the other spouse so that both spouses can maintain a reasonable standard of living after the divorce. (1) There is a rebuttable presumption that general support may not be awarded if the parties were married for less than 10 years as of the date of the filing of the action for divorce. There is also a rebuttable presumption that general support may not be awarded for a term exceeding 1/2 the length of the marriage if the parties were married for at least 10 years but not more than 20 years as of the date of the filing of the action for divorce. (2) If the court finds that a spousal support award based upon a presumption established by this paragraph would be inequitable or unjust, that finding is sufficient to rebut the applicable presumption. B. Transitional support may be awarded to provide for a spouse's transitional needs, including, but not limited to: (1) Short-term needs resulting from financial dislocations associated with the dissolution of the marriage; or (2) Reentry or advancement in the work force, including, but not limited to, physical or emotional rehabilitation services, vocational training and education. C. Reimbursement support may be Continued on page 20
conduct of the parties during the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. In fixing the nature and value of the property to be so assigned, the court shall also consider the present and future needs of the dependent children of the marriage. The court may also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates and the contribution of each of the parties as a homemaker to the family unit. When the court makes an order for alimony on behalf of a spouse, said court shall determine whether the obligor under such order has health insurance or other health coverage available to him through an employer or organization or has health insurance or other health coverage available to him at reasonable cost that may be extended to cover the spouse for whom support is ordered. When said court has determined that the obligor has such insurance or coverage available to him, said court shall include in the support order a requirement that the obligor do one of the following: exercise the option of additional coverage in favor of the spouse, obtain coverage for the spouse, or reimburse the spouse for the cost of health insurance. In no event shall the order for alimony be reduced as a result of the obligor's cost for health insurance coverage for the spouse.
Family Mediation Quarterly
A book review by Kathleen A. Townsend This 2001 book subtitled "Sharing Custody with an Ex Who Drives You Crazy" by Jeffrey P. Wittmann, Ph.D. is a valuable resource for family law mediators, attorneys, and clinicians. Although written for the divorced parent, it grounds the professional in the practical realities of dealing with angry, warring parents. The vignettes emanate from typical parent complaints, such as: "Kids shouldn't have to deal this (whatever the other parent is up to); my ex does not keep the kids safe; my ex has no respect for our schedules; my ex is always badmouthing my new partner to the kids; my ex keeps pushing the limits and still wants to be in control; etc." The strategies and responses offered here are practical, sensible, and usable by any frustrated parent who wants a better life. Focusing on that power and control that the complaining parent actually has enables him or her to make a plan for dealing with the irresponsible ex. After having knocked one's head against a brick wall long enough, it is time to find a way around the wall. Dr. Wittmann's very readable book gives the parent a road map around the brick wall. It gives the professional a sound foundation from which to assist her client(s). This reviewer has found Custody Chaos, Personal Peace so helpful that she has given out more than a dozen complimentary copies to clients. Kathleen A. Townsend is an attorney mediator. She can be contacted at (413) 733-4444, or by email at <kathleen@divmedgroup.com>.
Practice Tip: No Voluntary Reductions Of Child Support by Les Wallerstein Before 2000, parties with mediated separation agreements which provided for voluntary post-divorce modifications could agree to reductions of child support. Then came the case of Quinn v. Quinn, 49 Mass. App. Ct. 144 (2000). In Quinn, the parties to a divorce privately entered into a post-divorce agreement to lower the father's court ordered child support. Later the mother filed a complaint in contempt for non-payment of the original, court ordered child support. At trial the judge dismissed the mother's complaint. The court held that her post-divorce agreement (to lower the father's original, court ordered child support) negated her complaint to enforce the court ordered child support. The mother appealed, and the appeals court reversed the trial court. The appeals court held that a court must approve any reduction in child support. The appeals court reasoned that parents may not bargain away the rights of their children. Since Quinn, post-divorce reductions in child support have been held unenforceable unless court ordered.
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Spirituality Resolution Reflections by Jay Uhler Let's think together about letting go and the impact of loss on the resolution process. To let go is essential if a dispute is to reach resolution. Parties to a conflict must let go of something or many things: their pride, their spite, their view of the situation, their own rigid solution, their fears, their desire
unfulfilled expectations, loss of relationships, loss of finances, loss due to the failure to fulfill a contract, and loss of shared success. In divorce there may also be the loss of time with one's children, loss of money, loss of emotional support, loss of sex, or the loss of companionship. When a person will not face loss, they can stay stuck in their pain which they cover with anger focused at the other party(ies) and therefore block progress. Letting go involves loss. As disputants proceed through the conflict resolution process, there may be loss of face or of self-esteem, especially if they are willing to face their own negative contribution to the conflict. There is loss as they make concessions. In domestic situations, there can be the need to let go of the other party (mate or family member) or to release control of the children.
The mediator who is willing to assist the disputants to deal with the feelings that accompany loss will provide an important service.... to get even, their view of the other party (ies), the excitement or drama of the conflict, the fear of ending attachment with the other party, and on and on. Resistance in the form of "holding on" is often the barrier to resolution. (Resolution here refers to an end to the conflict.) Letting go involves dealing with emotions. The mediator who addresses emotions and assists the party (ies) to deal with their feelings can make the difference between reaching resolution or adding to the helplessness and antagonism of the disputants. Conflict is often begun because of some loss on the part of one or both parties. Conflict can also occur because of the fear of loosing someone or something. There may be loss of trust, loss related to
Difficulty letting go can be a major block to resolution. The mediator who is willing to assist the disputants to deal with the feelings that accompany loss will provide an important service and will receive the satisfaction of helping people to find workable solutions to end their conflict. Letting go involves facing feelings of anger toward others, anger turned toward oneself as guilt, fear, helplessness and pain. Space constraints for this article limits us to addressing one of the above - the impact of pain.
Family Mediation Quarterly
Pain related to loss takes the form of sadness. There is sadness that the lost person or object will not be a part of our life. The way to move through the feeling of sadness is to talk about that which was/is/will be lost. Sharing memories, especially the pleasurable ones, helps to focus the loss and the feelings of sadness. Crying about the loss provides the most release. Crying is not simply allowing a tear to trickle down a cheek. Sobbing is the ultimate release and leads to letting go and moving on. Crying is not breaking down. It is letting go.
"Resolution Reflections" is the first in a series of columns relating psychology and spirituality to the mediation process. Comments or suggestions for future "Reflections" are invited. 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 can be contacted at (978) 685-8550 or at <JRUhler@att.net>.
When mediation is blocked, it can be useful to ask, "What is the person holding on to?" or "What does the person need to let go of in order to resolve the conflict for them?" "Is the process blocked because the person needs to face a loss so they can let go of the conflict?" "What do they need from me, the mediator, to help them resolve this? The answer may be that they need to face a loss and release their sadness--that they need an understanding "shoulder" to cry on. There are mediations where crying on the part of a disputant can be manipulative and therefore create justifiable discomfort for the mediator. When the discomfort is in response to the natural release of sadness, it is time for the mediator to do some selfsearching so that s/he can provide the assistance disputants need to face their loss, to let go and to move through and beyond their conflict.
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An Assessment Of The New (February 2002) Child Support Guidelines For Children In Low-Income Families
Checklist For Determining Whether To Seek Deviation From Child Support Guidelines by Fern Frolin
by Peter G. Coulombe
The Good
The Bad
Custodial Parent income disregard was preserved and even increased to $20,000.
No changes to medical insurance provisions giving obligor a 50% credit toward child support obligation for cost of family plan, not actual increased cost of
The Ugly
Percentages used to calculate child support have decreased. (Executive summary by CJAM Dortch Okara calls these The lowest percentage percentage reductions bracket was increased to “minor” 21% up from 15%. e v e n Lower support orders leave though The minimum orders for monthly order was more children with low income l o w increased from $50 to income custodial parents at risk for $80 per month. custodial poverty and homelessness. parents “Cliff effect” w i l l removed from family plan over individual decrease between 10% to guidelines. plan. (Custodial parent still 20% in most cases. Low Written findings required required to subsidize non- income children hit hardest when court orders support custodial parent’s personal of any group by reduction for only 3 children where health insurance when in percentages.) the parties have more than 3 family plan costs less than children. Age add-on for children twice individual plan.) between 7 and 13 years old Guidelines extended to Judges still have discretion is eliminated. cover more families (single to only order support for the and joint-income thresholds first 3 children even though Age add-on percentage for raised to $100K / $135K expenses are clearly higher children over 13 is reduced respectively). when the custodial parent from 15% to 10%. has more than three Guidelines change alone children. Lower support orders leave not a significant change of more children with low circumstance for income custodial parents at modification of prerisk for poverty and existing orders. homelessness. Peter G. Coulombe is an attorney who works for the Family Law Unit of Greater Boston Legal Services. He can be contacted at (617) 742-9179, or by email at <PCoulombe@gbls.org>. Family Mediation Quarterly
Does the case include any of the following facts? • A party with unusual needs • A child with unusual needs (especially medical or educational) • Material tax issues, such as: A party with tax free income, including regular employment perquisites or in kind income. Disparate tax" brackets," which warrant allocation of some or all of the support as alimony [See Child Support Guidelines, Feb. 15, 2002, Section IIA] Unearned income of children [See Child Support Guidelines, Feb. 15, 2002, Section IA (20)] • Reduced needs of a party or child due to factors such as: Third party contributions In kind income (See Crowe v. Fong, 45 Mass App. Ct 673 (1998)) Shared physical custody [See Child Support Guidelines, Feb. 15, 2002, Section IID (1)] Split physical custody, i.e., each parent has physical custody of one or more children [See Child Support Guidelines, Feb. 15, 2002, Section IID (1)] • Unusual income/asset ratios (See Leonardo v. Leonardo, 40 Mass. App. Ct. 572 (1996))
• Travel expenses for visitation [See Child Support Guidelines, Feb. 15, 2002, Section IID (2)] • Above guidelines income [See Child Support Guidelines, Feb. 15, 2002, Section IIC ] • Attribution income based on potential earning capacity [See Child Support Guidelines, Feb. 15, 2002, Section II H] • Second job income, especially if the second job was secured after separation to meet expenses of second household [See Child Support Guidelines, Feb. 15, 2002, Section I B] • Non-custodial parent's contribution to child expenses, such as: College Activities Private school Routine uninsured medical and dental expenses [See Child Support Guidelines, Feb. 15, 2002, Section II G (2), stating that allocation of costs over $100 should be on case by case basis, but no reduction in the child support order should be allowed.] Uninsured extraordinary medical and dental expenses [See Child Support Guidelines, Feb. 15, 2002, Section II G (3), stating that consideration toward a reduction in the child support order should be given.] Fern Frolin is an attorney mediator.
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Characteristics Of A Mediator: 1. The patience of Job. 2. The sincerity and bulldog characteristics of the English. 3. The wit of the Irish. 4. The physical endurance of a marathon runner.
Continued from page 11 Alimony: What It Is And Isn’t
Continued from page 13 Maine: Alimony Statute
awarded to achieve an equitable result in the overall dissolution of the parties' financial relationship in response to exceptional circumstances. Exceptional circumstances include, but are not limited to: (1) Economic misconduct by a spouse; and
5. The broken field dodging abilities of a halfback. 6. The guile of Machiavelli. 7. The personality-probing skills of a good psychiatrist. 8. The confidence-retaining characteristics of a mute. 9. The hide of a rhinoceros. 10. The wisdom of Solomon. 11. Demonstrated integrity and impartiality. 12. Basic knowledge and belief in the negotiation process. 13. Firm faith in voluntarism in contrast to dictation. 14. Fundamental belief in human values and potential, tempered by ability to assess personal weakness as well as strengths.
(2) Substantial contributions a spouse made towards the educational or occupational advancement of the other spouse during the marriage. Reimbursement support may be awarded only if the court determines that the parties' financial circumstances do not permit the court to fully address equitable considerations through its distributive order pursuant to section 953. D. Nominal support may be awarded to preserve the court's authority to grant spousal support in the future. E. Interim support may be awarded to provide for a spouse's separate support during the pendency of an action for divorce or judicial separation.
15. Hard-nosed ability to analyze what is available in contrast to what might be desirable. 16. Sufficient personal drive and ego, qualified by willingness to be self-effacing. William E. Simkin & Nicholas A. Fidandis, Mediation and the Dynamics of Collective Bargaining 43 (1986).
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MCFM • Membership • Referral Directory • Certification
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checklist can perhaps cut through some of that jumble and provide you with a little help when drafting your agreements. This is the first in a series of articles exploring tax issues that bear on family mediation. Comments or suggestions for future articles are invited. James McCusker is a CPA and a certified financial planner. He can be contacted at (978) 256-1323, or by email at <James@McCuskerAssociates.com>.
Continued from page 9 ADR News From The Courts
from each of the (seven) Trial Court Departments, one member from the Administrative Office of the Trial Court, and up to four individuals from outside the court system. The Chief Justices of each of the seven departments will be asked for names of individuals whom they wish to nominate to serve as their department’s representatives. The Supreme Judicial Court deferred consideration of proposed Rule 8 (Qualifications), but Chief Justice Marshall has indicated that the SJC Rules Committee will discuss the rule at its next meeting. Judge Cratsley expects that the members of the reorganized standing committee will take up Rule 8 as their first order of business when committee meetings start again in October. Christine W. Yurgelun is the coordinator of court-connected dispute resolution services for the Massachusetts Probate and Family Court. She can be contacted at (617) 788-6600.
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Debt Mortgage Mysteries Revealed By Robert Loss and Dawn Evans Overview of the Mortgage Industry: Gone are the days of walking into the local bank, having a cup of coffee, producing a pay stub and getting a mortgage. Times have changed and so have the requirements for mortgage financing. Lenders now have specific requirements in regards to how financing can be obtained. Qualifying ratios, credit scores and computerized underwriting are all factors that now apply in obtaining a mortgage approval. Most lending wholesalers now use Internet based computerized underwriting through
On the one hand, one can be hurt by a poor credit score which can take months to fix if incorrect, on the other hand, one can obtain a loan with lower income, higher debts, less equity or worse credit if other factors are strong. How Mortgages Affect the Divorcing Couple: Couples who are beginning the divorce process should inquire about mortgages as soon as possible. Depending on their individual situations, things such as an existing home that is being divided between parties, buyout of one party by the other or the need for one of the parties to purchase a new residence can add to the already stressful process of getting divorced. To help alleviate this additional stress, couples should seek the advice of an experienced mortgage person to help determine what can be accomplished under their current financial situation.
In a divorce situation it is important to consider mortgages early in the process.... systems such as Loan Prospector and Desktop Originator to qualify its borrowers. These systems originate from Fannie Mae and Freddie Mac, two of the major secondary market lenders that provide the underwriting criteria for wholesale lending. These computerized systems compile information such as income, credit, assets and overall strength and/or weaknesses of a borrower to determine their eligibility for financing. These approvals are necessary to ensure that the loans can be sold on the secondary market and that the lenders default rates remain low. This has both positive and negative effects.
The timing of when each applies for a mortgage is crucial in order to increase the probability of obtaining an approval. For example, if an individual who is going to be paying alimony or child support applies for a mortgage before a settlement is signed, the alimony and child support is not counted in their debt ratio and they would qualify for a bigger mortgage. First and foremost, divorcing couples need to understand that the situation of each applies to the other. Some examples of this are as follows: Alimony/Child Support: Alimony and
Family Mediation Quarterly
child support can be used by the receiving ex-spouse to qualify for a mortgage. However, for the spouse paying these monies out, this is now considered a debt and will be taken into consideration for what he/she qualifies for. Credit: A common misconception between couples is that if the separation agreement/divorce decree states one of the parties is responsible for certain debts that they are free and clear of responsibility. This can create a number of credit problems for the divorcing couple. Credit is one of the most important criteria's that the lenders will look at to see if you qualify for a loan. The lenders determine this ability primarily by a borrowers credit scores. Credit scores are determined by a number of variables such as late payments, amount of revolving/installment debt and how overall credit is used. If couples have joint accounts and the party that is supposed to pay does not, this affects the credit of BOTH parties. This includes mortgages, installment debt and revolving debts. Credit agencies that report your credit do not know the terms of your divorce. This type of situation can hinder or even destroy the ability of one of the parties to obtain mortgage financing. Tax Deductible Interest and Real Estate Taxes: Most people, particularly a spouse who has not handled the family finances, do not realize the tremendous ramifications of deductible interest and real estate taxes. In most cases, a borrower gets back 1/3rd of the interest and taxes they pay. Mortgages as part of Financial Planning: Because mortgage interest is deductible, the real interest rate after tax deductions is roughly 66% of the before
deduction rates. Thirty year fixed no point rates are now approximately 6.75%, after tax deduction interest is approximately 4.5%. Money invested long term in the stock market should yield 8-10% per year. Therefore, it makes sense to invest long term instead of prepaying a low interest rate deductible mortgage. Summary: There are now many types of mortgages which did not exist in years past. This allows a much broader spectrum of people to be able to obtain mortgages. These include: Sub prime (poor credit) No income verification Government guaranteed FHA No down payment High debt ratios Jumbo (over $300,700) and Super Jumbo (over $1 million) Hybrid (fixed for 3, 5, 7 years then adjustable) First and Second mortgage combinations With all of this newfound flexibility, it is possible to obtain a mortgage of some sort for almost anyone. In a divorce situation it is important to consider mortgages early in the process in order to understand what is possible and to maximize chances for success. This is the first in a series of articles examining issues of debt that can affect family mediations. Comments or suggestions for future articles are invited. Robert Loss and Dawn Evans are principals in Comprehensive Mortgage Co., Inc.. They can be contacted at (781) 933-0456, or by email at <dle824@aol.com>.
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Announcements MCFM Member Meetings Mediation Peer Group Meetings Merrimack Valley Area 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.
Upcoming Events TREATING COUPLES: The Harvard Medical School, Department of Continuing Education will sponsor this two-day course featuring, amongst others, E. Mavis Hetherington, Alan Nemetz, Thomas Moore, Marshall Forstein, Jamie Keshet, Richard Chasin and MCFM founding member Janet Miller Wiseman. Friday, November 1st & Saturday, November 2nd, 2002, from 8:45 AM to 5:00 PM at the Sonesta Hotel, Cambridge, MA. For further information contact Cambridge Hospital Professional Services - Continuing Education, at (617) 503-3460, or by email at <cme@challiance.org>. Register or view course information on-line at <www.cme.hms.harvard.edu>.
Family Mediation Quarterly
MCFM invites guest speakers to present topics of interest at four, free, member education meetings annually. Members are encouraged to bring guests at no cost. Our next meeting is scheduled on Wednesday, October 9th, from 2-4 PM, at the Concord Courthouse. The presentation will be made by James McCusker of James McCusker & Associates. The topic of Jim's presentation will be “Alimony, Child Support and Earning Capacities: A Look at Popular Formulas.” See our web site at <www.mcfm.org> for driving directions.
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 on-line at <www.massclc.org>.
Notice Of Vacancies On The Supreme Judicial Court/Trial Court Standing Committee On Dispute Resolution The Justices of the Supreme Judicial Court invite applications for appointment to several positions on the Standing Committee on Dispute Resolution. The Justices are interested in applicants with expertise in the field of alternative dispute resolution. Letters, with resumes, should be submitted by August 12, 2002 to: LaDonna J. Hatton Supreme Judicial Court 1300 New Courthouse Boston, MA 02108 This notice is also available at <www.neacr.org/SJCnotice.htm>. Questions should be directed to Timothy Linnehan at <linnehan_t@jud.state.ma.us>.
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Letters
Join Us
Dear Editor:
constitutionality of this criminal statute as recently as 1983.
I write as the mediator who reluctantly agreed to mediate the "equitable distribution" of stolen goods ("Ethics Corner" MCFM News, Vol. X, No. V, Spring 2002). Although I urged my clients to turn in their one item of stolen property to the police- anonymously or otherwiseboth refused. Since neither husband nor wife could be persuaded to return the stolen item, I had to decide whether I would continue the mediation. Ultimately I made an uneasy decision to proceed. Despite the general "rule" that we should refuse to mediate in the context of criminal acts, adultery presented itself a stunning exception. The official heading of Massachusetts General Laws Chapter 272 is "CRIMES AGAINST CHASTITY, MORALITY, DECENCY AND GOOD ORDER." G.L c. 272 ยง 14 defines adultery as: "A married person who has sexual intercourse with a person not his spouse or an unmarried person who has sexual relations with a married person shall be guilty of adultery and shall be punished by imprisonment in the state prison for not more than three years or in jail for not more than two years or by a fine of not more than five hundred dollars."
"G.L c. 272 ยง 14, as applied to the conduct of the defendant, a married person who, in the rear of a van in a secluded wooded area, was arrested while engaged in sexual intercourse with a person not her spouse, was not unconstitutional as impinging on the constitutional right of privacy." Commonwealth v. Stowell, 389 Mass. 171, 175-176, (1983). Since the vast majority of our clients have committed the "crime" of adultery, I suspect that most mediators have violated the general rule - agreeing to mediate in the context of criminal acts. Drawing lines when boundaries are blurry makes ethical decision making difficult in all human relations. Mediation often uncovers a paradoxical nest of "right/wrong" choices where absolute answers are especially elusive. Anonymous.
PUT YOUR THOUGHTS INTO PRINT: EMAIL A LETTER TO THE EDITOR
MEMBERSHIP: MCFM membership is open to all practitioners and friends of family mediation. MCFM invites guest speakers to present topics of interest at four, free, member education meetings annually. Attendance at educational meetings often satisfies 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 $75. 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 members 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 each listed member. The referral directory is also available on-line at MCFM's web site. MCFM was the first organization to issue Standards of Practice in Massachusetts. To be listed in the MCFM Referral Directory each member must agree to uphold MCFM's Standards of Practice. Copies of MCFM's Standards of Practice are available on-line at MCFM's web site. The annual Referral Directory fee is $50. 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 MCFM's certification requirements are available on-line at MCFM's 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 2 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>.
wallerstein@socialaw.com Adultery is not obsolete, 19th century crime. The Massachusetts Supreme Judicial Court has upheld the
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Directorate
Editorâ&#x20AC;&#x2122;s Notice
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
Mary T. Johnston, 47 Church Street, Wellesley, MA 02482-6326, (781) 431-8552, email: maryt.johnston@erols.com
Vice President
Fern L. Frolin, 2 Newton Place, Newton, MA 02458, (617) 969-1400, email: ffrolin@earthlink.net
Vice President
Kathleen A. Townsend, Divorce Mediation Group, Inc., 73 State Street, Springfield, MA 01103, (413) 7334444, email: kathleen@divmedgroup.com
Secretary
Treasurer
Laurie S. Udell, 399 Chestnut Street, Needham, MA 02492-2426, (781) 449-3355, email: lsudellesq@aol.com Frank W. Benson, COMMON GROUND, Center for Negotiation & Public Policy, Inc., 520 Statler Building, Boston, MA 02116, (617) 482-8660, email: FDBenson@ix.netcom.com
DIRECTORS Lynn K. Cooper, Roger A. DuPont, Thomas Hefele, 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
MCFM's
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
All MCFM members and friends of family mediation are encouraged to contribute to the FMQ. There is a story in every mediation that other mediators can learn from. Please share yours. The following quarterly deadlines for submissions will be observed: Summer - July 15th Fall - October 15th Winter - January 15th Spring - April 15th The FMQ is mailed to all MCFM members. Copies are also provided to all Probate & Family Court judges and 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. 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.
DIRECTORS EMERITUS John A. Fiske, Janet B. Weinberger, Jerome Weinstein & Barbara N. White
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.
DeLaurice Fraylick, 23 Parker Road, Needham Heights, MA 02494-2001, (781) 449-4430, email: mcfm23@aol.com
Please submit all contributions to the FMQ by email to the editor. Submissions may be edited for clarity and length.
ADMINISTRATOR
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Summer 2002 â&#x20AC;˘ Vol. 1 No. 1
MCFM's
Family Mediation Quarterly published by: MASSACHUSETTS COUNCIL ON FAMILY MEDIATION 23 Parker Road Needham Heights, MA 02494-2001
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