summer03

MCFM

FAMILY MEDIATION QUARTERLY Vol. 2 No. 3

Summer 2003

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

From The President You’ve heard the complaint, “Mediation produces unfair results that wouldn’t occur if the case had been settled at Court.” To diffuse such an objection, all mediators, whether attorneys or not, must be familiar with the current law. It is not enough to have one’s clients reach agreement on the issues. Their agreement must he adjudicated as fair and reasonable by a judge. Although mediators cannot give specific legal advice, they represent the profession well when the finished mediated document sets forth terms in accord with the present law.

MCFM offers opportunities for members to stay up-to-date through regular members meetings and more extensive programs such as the all-day institute to be held this October 24th. Last years members meetings featured discussions on alimony and child support formulas, tax issues related to divorce, and health insurance continuation after divorce. The Family Mediation Quarterly has provided timely articles on such subjects as changes in court rules and the child support guidelines.

Relevant seminars, as well as applicable publications, are regularly provided by the Massachusetts Continuing Legal Education, Inc. (MCLE), sponsored by the Massachusetts and Boston Bar Associations, and by the Massachusetts Bar Institute of the Massachusetts Bar Association. For example, an excellent recent MCLE program featured a discussion of how to evaluate financial statements, tax forms and other information relevant to divorce decisions. Also, MCLE sponsors a judicial forum in late fall, held in Boston and repeated in other locations throughout the state, offering an opportunity to hear what judges are thinking about divorce issues, as well as an annual all-day family law conference in the spring. Non-lawyers can contact these organizations for information on up-coming programs.

Maybe well-informed mediators can’t completely silence criticism. Yet, by becoming educated on the current law, mediators can certainly better serve their clients.

Contents 1

Mediated Agreements: A View from the Bench

By Hon. Robert W. Langlois

6

"Hypothetical" Child Support: Fashioning Orders for Children In and Out of Wedlock

By Mark I. Zarrow

8

The Uniform Mediation Act House No. 96

13

What You Should Know About Chapter 32 Orders

By Lisa M. Ehrmann

16

ADR Court News

By Christine W. Yurgelun

17

Silence is Golden

By Chip Rose

19

Press Release: Standing Order 1-03 Massachusetts Probate & Family Court

20

Taxing Enigmas: The Marital Home in Divorce

By James McCusker

23 MCFM News 25 Announcements 27 Editorial

30 Join Us 31 Directorate 32 Editor’s Notice

MCFM © 2003 All Rights Reserved

Family Mediation Quarterly

Summer 2003 • Vol. 2 No. 3

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2 A JUDGE’S OPEN LETTER TO THE FAMILY MEDIATION COMMUNITY

by Hon. Robert W. Langlois

After nineteen years of marriage, Ted and Alice, who have two teenage children, are in the process of getting divorced. Two months ago, they came to your office in the jointly expressed hope of coming to an agreement and not having to become involved with lawyers. Although they did not see eye-toeye on even the most mundane of issues, they wanted to keep the contentiousness to a minimum.

You worked very hard with them during several mediation sessions to achieve an agreement that both parties could live with.

Finally, an extensive agreement was reached, and each was given a copy of the final draft with instructions to review it with an attorney before signing it. The couple left, after thanking you profusely for your help.

The next conversation was not quite as pleasant. Alice called your office two weeks later complaining bitterly about the agreement and wondering why they had bothered to spend all of that money for your services. They had appeared before a Judge to get divorced, but the Judge rejected their agreement and suggested they would have to redo portions of it. Months after coming to your office, where were they?

No agreement, poorer, and still married!

What happened? Why was the judge able to reject Ted’s and Alice’s agreement? Don’t they have the right to enter into a contract to divide the assets that they have acquired together? Can’t they decide for themselves how much, if any, alimony should be paid?

To be sure, the vast majority of mediated agreements are accepted by the Courts, but not all of them. The reasons for rejecting a mediated agreement are many, but all rejections reflect a fundamental difference between the role of a judge and the role of a mediator.

Separation agreements that are entered into as part of a pending or anticipated divorce comprise a unique category of contracts.

While most are approved, and are specifically enforceable, a judge must incorporate them into his1 own judgment of divorce. He has the obligation to ensure that the provisions of the agreement adequately address all issue and are fair and reasonable.

The requirement that a Court make such an independent finding is the result of the 1984 Appeals Court case of Dominick v.

Dominick, 18 Mass. App. Ct. 85 (1984).

The Appeals Court vacated the judgment, explaining that “[s]eparation agreements which fix the mutual financial and property rights and obligations of a husband and wife, are valid and binding, and specifically enforceable absent countervailing equities, when a judge determines, at the time of the entry of a judgment of divorce nisi or thereafter, that the agreement was free of fraud and coercion and fair and reasonable at the time of the entry of the judgment,2 and that the parties agreed upon the finality of the judgment.” [emphasis added.]

The Appeals Court decision went on to enumerate a list of factors which a judge must consider in making a determination of

Family Mediation Quarterly

fairness and reasonableness, several of which are as follows: • the financial and property division provisions of the agreement as a whole; • the context in which the negotiations took place; • the complexity of the issues involved; • the background and knowledge of the parties; • the experience and availability of counsel; and • the need for and the availability of experts to assist the parties and/or counsel.

Although the Dominick case holds that, in order to be enforceable at a later date, a judge must make an independent finding that a separation agreement is fair and reasonable as of the entry of the judgment of divorce, the Court did not by its language require judges to independently consider whether any specific provision of a separation agreement needed to be clearly stated, and, therefore, judicially enforceable at a later date. Query: is enforceability implicit in the requirement that an agreement be reasonable? Arguably, it is. A finding that a separation agreement is enforceable would require a detailed review of every agreement - a prospective view of each provision - to determine whether or not it would, in addition to being fair and reasonable, also be enforceable. Without

If a Court, after consideration of the above factors, fails to find that a settlement agreement is fair and reasonable, the Court The reasons for rejecting a mediated should decline to ratify the agreement are many, but all agreement. See Lavin v.

Lavin, 24 Mass. App. Ct. rejections reflect a fundamental 929, 930 (1987). In that difference between the role of a event, the Judge is required to inform the parties at the judge and the role of a mediator. time of the hearing that he is disapproving the agreement. such a reading and review of an agreement, it would be possible for various provisions of The Appeals Court’s decision in Dominick an agreement to appear fair and reasonable has been relied upon in a multitude of and yet still be unenforceable. subsequent appellate Court opinions, yet its basic premise has not been modified or Consider the following provisions3 regarding refined. In the recent case of Paixo v. Paixo, a divorcing couple’s children: 429 Mass. 307 (1999), the Massachusetts Supreme Judicial Court noted that even if a (I) “It shall be the overriding goal of the judge was prepared to make a finding that the Husband and Wife to strive, to the best of agreement was fair and reasonable, if a party each one’s ability, to foster Son’s respect and is clearly ambivalent regarding the affection for each parent and to cooperate settlement, the judge should not approve the fully, as parents, in providing the oversight agreement but should, instead, set the case Continued on next page down for trial. (See Paixo at 311-12.)

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and guidance needed.”

(II) “The parties agree that they will work together to reach agreement as to moneys to be paid by Husband for Daughter’s wedding.

(III) “The parties agree to pay one-half of the cost of the educational undergraduate college expenses of the children based upon their financial condition at the time.”

(IV) “The parties have agreed that the Husband is entitled to $20,000 and it shall be paid to him within three (3) years upon the execution of this Agreement, when the Wife shall refinance the marital property in her own name and using the proceeds from the refinancing, she shall pay to the Husband the sum of $10,000 and within a total of six (6) years upon the execution of this Agreement, the Wife shall pay to the Husband the remaining sum of $10,000.”

The judge’s job is often made far more difficult when presented with an agreement of 50-120 pages.

Funding of the wedding shall not be related to Wife’s participation in the planning and cohosting of the affair, the latter participation in which Wife shall play a key role.”

Are such provisions enforceable? Do the parties expect these provisions to be specifically enforceable? If not, should they remain part of the parties’ agreement? They may well pass the Dominick test of being fair and reasonable, but could a parent be held in contempt for an alleged violation either clause? It may be that in instances such as reflected in “(I)” above, a likely unenforceable provision is merely aspirational in nature and permitting it to remain, unmodified, in an agreement would be neither harmful nor prejudicial to anyone.

Most agreements contain such aspirational language which, presumably, reflects the parties’ desire to act in concert and, hopefully, in harmony in their future dealings with each other. Such may not, be the case, however, with provision “(II)” which may have been a critical, substantive, part of the parties’ negotiated agreement.

Consider also the following clauses,4 unenforceable due not to their precatory language but rather to their inherent contradictions:

In example “(III),” are each of the parties obligated to pay one-half of the child’s college expenses, or is their obligation to pay any amount simply a function of their financial condition at the time when the child enters college?

In example “(IV),” would the husband prevail in a contempt action if he had not received his full $20,000 within three years of the execution of the agreement? The first part of the clause would tend to support such a contention, while the second part which seem to indicate that the Wife actually has up to six years to meet her full obligation to pay the $20,000.

All of the four examples were taken from actual, mediated separation agreements submitted to the Court for approval and incorporation into judgments of divorce.5 These clauses suggest that in order to avoid

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embroiling the parties in future litigation, a judge must go beyond finding that an agreement is fair and reasonable, he must also determine that it is enforceable.

Otherwise, negotiated, but potentially unenforceable provisions may not provide one party or the other with that which he/she believed they had bargained for. Arguably, therefore, how could an agreement be deemed fair if it does not provide a party with that which he/she believes that he/she was entitled to receive?

review of the Court’s divorce file, which may consist of little more than a “bare bones” complaint, two financial statements, and a mediated agreement, the Judge is required to attempt to make the independent assessment referenced above. Often, a few questions, during the course of what is usually a brief hearing, will serve to “fill in the blanks” so as to enable the Judge to make his required findings. The Judge’s job is often made far more difficult when presented with an agreement of 50-120 pages. In such instances, the likelihood of ambiguities and internally inconsistent language increases markedly, particularly where certain provisions must be cross-referenced with various other provisions (often contained in diverse sections of the agreement) in order to attempt to ascertain the parties’ intentions and to establish “clear and unambiguous” provisions/orders of the Court. There is, therefore, much to be said in favor of simplicity, clarity and brevity, even when dividing up complicated marital estates or setting forth detailed parenting plans.

For what other reasons might a fully mediated, even unambiguous, agreement be rejected? The holding in Dominick requires that the Court make an independent assessment that the agreement is fair (as well as reasonable) under the circumstances presented. The provisions of an agreement could be so one-sided that it would be unconscionable for the Court to determine, as its own assessment, that the provisions are fair to both parties. Consequently even when both parties are asking the Court to approve an agreement, the Court cannot, and should not, do There is ... much to be said in favor so if it finds the agreement of simplicity, clarity and brevity, even to be unconscionable. when dividing up complicated The Court cannot dictate what either party may do marital estates or setting forth with his or her property detailed parenting plans. following a hearing,6 but the Court must make a determination that the agreement presented It is also helpful to keep in mind that the for incorporation into a judgment of divorce Court is often given, prior to the start of a is, as of the date of the hearing, fair in light day’s proceedings, a number of files and of the parties’ circumstances in keeping with agreements to review before taking the c. 208, § 34 of the General Laws. bench to hear what are intended to be “uncontested” divorces. Agreements are The job of the Judge in these circumstances is not necessarily an easy one. From a Continued on next page

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often reviewed and considered under circumstances which make the reviewing of lengthy, complex, financial and/or family arrangements difficult. It would be tempting for a Judge, who knows that there may be many cases in court awaiting his attention,

Footnotes: 1. Given the gender of the author, the Court will be referred to using a masculine pronoun, although at the present time, nearly half of the Judges in the Probate and Family Court are women.

Mediators provide an invaluable service in helping couples develop a good, workable agreements. simply to assume without undertaking a careful review than an agreement, and even more so a very lengthy agreement, must necessarily be fair and reasonable, but, in making such an assumption, he would not be doing his job and would certainly be doing disservice to the parties/families appearing before him.

Mediators provide an invaluable service in helping couples develop a good, workable agreements. It is hard work trying to bring reason and structure to what are often emotional and chaotic situations. There is not a judge in the Probate and Family Court system who does not welcome and greatly appreciate the fine work of those providing mediation services to couples undergoing divorce. Our jobs would be far more difficult were it not for those efforts.

I am hopeful that this article has provided you with some further insight into the Court’s role in the review, and consideration, of separation agreements. Perhaps you can just keep it in mind in the, hopefully unlikely, event that you get a call back from Ted or Alice.

2. Thus, an agreement was, arguably, fair and reasonable when signed might not be either fair or reasonable if presented to the Court months or, as will occasionally occur, even years after its execution, as the parties' circumstances may have changed considerably in the interim.

3. The quoted clauses were taken directly from mediated agreements.

4. These quoted clauses were also taken directly from mediated agreements.

5. Problematic provisions are by no means found only in agreements developed with the assistance of a mediator. Agreements negotiated and prepared by lawyers contain as many questionable provisions.

6. Indeed, a husband or wife would be free to give all of the assets awarded to him/her under an agreement and/or a judgment of divorce (into which the agreement was incorporated) to the other party, if he/she wanted to do so.

Robert W. Langlois is an associate justice of the Massachusetts Probate and Family Court. He can be contacted at the Norfolk Probate and Family Court, 35 Shawmut Road, Canton, MA 02021, (781) 830-1200.

Family Mediation Quarterly

"HYPOTHETICAL" CHILD SUPPORT Fashioning Orders for Children In and Out of Wedlock

By Mark I. Zarrow On July 1st the Supreme Judicial Court resolved, at least partly, a question concerning child support for a child born out of wedlock, where the father also has an intact, marital family. Department of Revenue v. Mason M., 439 Mass. 665 (2003).

The father was a physician earning $104,408 per year. He was married and had one child of his marriage, when the nonmarital child (Erin) was born to the unwed mother. At the time of the hearing a second child of the marriage had been born. The unwed mother had no other children, and was unemployed.

At the time of the hearing, the "minimum presumptive level of support to be awarded" under the Child Support Guidelines was based on $75,000. The judge had discretion to award additional support based on income above that level.

The "minimum presumptive level" has subsequently been raised to $100,000 for the non-custodial parent, (with apologies to John Fiske, FMQ, Vol. 2, No. 2), and $135,000 as the combined income of the parties.

The trial judge stated that applying the guidelines to the minimum presumptive level of income would result in an order of $389.42 per week, based on $75,000 per year. The judge went on, however, to state that such an order would be unfair to the father's marital family. He chose to first fashion a "hypothetical" order for the

father's marital children. Applying the Guidelines for those two children resulted in a "hypothetical award" of $432.69 per week. The judge then deducted this "hypothetical award" from the father's income, and based the award for the nonmarital child as if the father's income was the lower amount. By applying the Guidelines at the lower income level, ($100.69 per week), the judge arrived at a support award of $272.60.

The Supreme Judicial Court held that the judge's application of the Guidelines was erroneous. The SJC acknowledged that the father did have a duty to support his marital children. Nevertheless, the SJC concluded that the trial judge should have deducted the "hypothetical" child support order from his gross income of more than $104,000. It pointed out that the marital children's "hypothetical" support order could have been satisfied from income that was in excess of $75,000. "The father's financial circumstances were such that no downward adjustment to Erin's support order was necessary to ensure his ability adequately and equitably to support all three of his children." The effect of the child support judgment entered here was to treat Erin in a manner that was grossly inferior to the treatment of the two marital children.

"Such treatment was contrary to the fundamental social policies set forth in the guidelines."

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The ruling helps answer questions concerning the application of the Guidelines in cases with facts similar to the ones in DOR v. Mason M. Thus, when the father in a marital family also has a child out of wedlock, and has adequate income over the "minimum presumptive amount" to cover the "hypothetical support order" (calculated using the "minimum

53 Mass.App.Ct. 599 at 604-605 (2002); Richards v. Mason, 54 Mass.App.Ct. 568, 572 (2002) Department of Revenue v.

G.W.A., 412 Mass. 435, 441 (1992).

Furthermore, it will be the rare case indeed that contains similar facts to these. There will be many more cases in which the father in a marital family earns significantly less income.

Questions Questions remain as to what remain as to what discretion a judge has to fashion an discretion a judge has to fashion an equitable equitable order in the far more order in the far more common case where money is tight. common case where money is tight. Must the non-marital child(ren) presumptive income" as the basis for the be treated identically to the marital order), the non-marital child support child(ren)? And what does it mean to treat should also be ordered on the basis of the children identically where the father also minimum presumptive amount without has a legal obligation to support his deduction. spouse? Such questions await further clarification.

The extent to which a judge has discretion to vary these amounts is not discussed.

However, it has been held in other cases that the judge has "considerable discretion" Mark I. Zarrow is an attorney in fashioning a Guidelines Order for an out mediator who practices in Worcester. of wedlock child, both when the husband He represented the defendant Mason has a marital family to support, and when M. Mark can be contacted at (508) 799-4461, he does not. See e.g. O'Meara v. Doherty, or by email at <mzarrow@lzes.com>.

THE MASSACHUSETTS UNIFORM MEDIATION ACT Editors note: The Uniform Mediation Act (UMA) is now pending in Illinois, Indiana, Maine, Massachusetts, Nebraska, New York and Vermont. In March, 2003, the Illinois House of Representatives voted unanimously to adopt the UMA. If it clears the Senate and is signed into law, Illinois will become the first state in the nation to enact the UMA. To date it has been rejected in Nebraska, New York, Oklahoma, South Carolina, Vermont and New Hampshire.

For more information see ACResolution, (the quarterly journal of the Association for Conflict Resolution), Spring, 2003.

“The sum which two married people owe to one another defies calculation”

The UMA is a recent offering of the National Conference of Commissioners on Uniform State Laws ("the Commission"), which has worked to create uniform state laws since 1892! Since then the Commission has drafted more than 200 uniform laws on many subjects and in various fields of law. In 1940 the Commission decided to attack major commercial problems with comprehensive legal solutions—a decision that set in motion the project to produce the Uniform Commercial Code (UCC). The UCC took 10 years to complete and another 14 years before it was enacted nationwide. It remains the Commission's signature accomplishment. The UMA was approved and recommended for enactment in all states by the Commission in August, 2001.

For more information see http://www.nccusl.org/nccusl/aboutus.asp# org.

Johann Wolfgang von Goethe

Following is a copy of the UMA that is

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currently pending in Massachusetts.

HOUSE, No. 96 Accompanying the sixth recommendation of the Commission on Uniform State Laws (House, No. 90). The Judiciary.

The Commonwealth of Massachusetts ______________________ In the Year Two Thousand and Three. ______________________ AN ACT MAKING UNIFORM CERTAIN ASPECTS OF MEDIATION. Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows: SECTION 1. The General Laws are hereby amended by inserting after Chapter 251 the following chapter: CHAPTER 251A UNIFORM MEDIATION ACT Section 1. This chapter may be cited as the UNIFORM MEDIATION ACT. Section 2. In this Act: (1) “Mediation” means a process in which a mediator facilitates communication and negotiation between parties to assist them Continued on next page

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(2) “Mediation communication” means a statement, whether oral or in a record or verbal or nonverbal, that occurs during a mediation or is made for purposes of considering, conducting, participating in, initiating, continuing, or reconvening a mediation or retaining a mediator.

stored in an electronic or other medium and is retrievable in perceivable form.

(9) “Sign” means: (A) to execute or adopt a tangible symbol with the present intent to authenticate a record; or

(3) “Mediator” means an individual who conducts a mediation.

(B) to attach or logically associate an electronic symbol, sound, or process to or with a record with the present intent to authenticate a record.

(4) “Nonparty participant” means a person, other than a party or mediator, that participates in a mediation.

Section 3. (a) Except as otherwise provided in subsection (b) or (c), this chapter applies to a mediation in which:

(5) “Mediation party” means a person that participates in a mediation and whose agreement is necessary to resolve the dispute.

(1) the mediation parties are required to mediate by statute or court or administrative agency rule or referred to mediation by a court, administrative agency, or arbitrator;

(6) “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government; governmental subdivision, agency, or instrumentality; public corporation, or any other legal or commercial entity.

(7) “Proceeding” means: (A) a judicial, administrative, arbitral, or other adjudicative process, including related pre-hearing and post-hearing motions, conferences, and discovery; or

(2) the mediation parties and the mediator agree to mediate in a record that demonstrates an expectation that mediation communications will be privileged against disclosure; or (3) the mediation parties use as a mediator an individual who holds himself or herself out as a mediator or the mediation is provided by a person that holds itself out as providing mediation. (b) The chapter does not apply to a mediation:

(B) a legislative hearing or similar process.

(8) “Record” means information that is inscribed on a tangible medium or that is

(1) relating to the establishment, negotiation, administration, or termination of a collective bargaining relationship;

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(2) relating to a dispute that is pending under or is part of the processes established by a collective bargaining agreement, except that the chapter applies to a mediation arising out of a dispute that has been filed with an administrative agency or court; (3) conducted by a judge who might make a ruling on the case; or (4) conducted under the auspices of: (A) a primary or secondary school if all the parties are students or (B) a correctional institution for youths if all the parties are residents of that institution. (c) If the parties agree in advance in a signed record, or a record of proceeding reflects agreement by the parties, that all or part of a mediation is not privileged, the privileges under sections 4 through 6 do not apply to the mediation or part agreed upon. However, sections 4 through 6 apply to a mediation communication made by a person that has not received actual notice of the agreement before the communication is made.

Section 4. (a) Except as otherwise provided in section 6, a mediation communication is privileged as provided in subsection (b) and is not subject to discovery or admissible in evidence in a proceeding unless waived or precluded as provided by section 5. (b) In a proceeding, the following privileges apply:

(1) A mediation party may refuse to disclose, and may prevent any other person from disclosing, a mediation communication.

(2) A mediator may refuse to disclose a mediation communication, and may prevent any other person from disclosing a mediation communication of the mediator.

(3) A nonparty participant may refuse to disclose, and may prevent any other person from disclosing, a mediation communication of the nonparty participant. (c) Evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its disclosure or use in a mediation.

Section 5. (a) A privilege under section 4 may be waived in a record or orally during a proceeding if it is expressly waived by all parties to the mediation and: (1) in the case of the privilege of a mediator, it is expressly waived by the mediator; and (2) in the case of the privilege of a nonparty participant, it is expressly waived by the nonparty participant. (b) A person that discloses or makes a representation about a mediation communication which prejudices another person in a proceeding is precluded from asserting a privilege under section 4, but Continued on next page

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only to the extent necessary for the person prejudiced to respond to the representation or disclosure. (c) A person that intentionally uses a mediation to plan, attempt to commit or commit a crime, or to conceal an ongoing crime or ongoing criminal activity is precluded from asserting a privilege under section 4.

Section 6. (a) There is no privilege under section 4 for a mediation communication that is: (1) in an agreement evidenced by a record signed by all parties to the agreement; (2) available to the public under [insert statutory reference to open records act] or made during a session of a mediation which is open, or is required by law to be open, to the public; (3) a threat or statement of a plan to inflict bodily injury or commit a crime of violence;

filed against a mediation party, nonparty participant, or representative of a party based on conduct occurring during a mediation; or (7) sought or offered to prove or disprove abuse, neglect, abandonment, or exploitation in a proceeding in which a child or adult protective services agency is a party, unless the case is referred by a court to mediation and a public agency participates. (b) There is no privilege under section 4 if a court, administrative agency, or arbitrator finds, after a hearing in camera, that the party seeking discovery or the proponent of the evidence has shown that the evidence is not otherwise available, that there is a need for the evidence that substantially outweighs the interest in protecting confidentiality, and that the mediation communication is sought or offered in: (1) a court proceeding involving a felony or misdemeanor; or

(4) intentionally used to plan a crime, attempt to commit or commit a crime, or to conceal an ongoing crime or ongoing criminal activity;

(2) except as otherwise provided in subsection (c), a proceeding to prove a claim to rescind or reform or a defense to avoid liability on a contract arising out of the mediation.

(5) sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediator;

(c) A mediator may not be compelled to provide evidence of a mediation communication referred to in subsection (a)(6) or (b)(2).

(6) except as otherwise provided in subsection (c), sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice

(d) If a mediation communication is not privileged under subsection (a) or (b), only the portion of the communication necessary for the application of the

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exception from nondisclosure may be admitted. Admission of evidence under subsection (a) or (b) does not render the evidence, or any other mediation communication, discoverable or admissible for any other purpose.

Section 7. (a) Except as required in subsection (b), a mediator may not make a report, assessment, evaluation, recommendation, finding, or other communication regarding a mediation to a court, administrative agency, or other authority that may make a ruling on the dispute that is the subject of the mediation.

Section 9. (a) Before accepting a mediation, an individual who is requested to serve as a mediator shall: (1) make an inquiry that is reasonable under the circumstances to determine whether there are any known facts that a reasonable individual would consider likely to affect the impartiality of the mediator, including a financial or personal interest in the outcome of the mediation and an existing or past relationship with a mediation party or foreseeable participant in the mediation; and (2) disclose any such known fact to the mediation parties as soon as is practical before accepting a mediation.

(b) A mediator may disclose: (1) whether the mediation occurred or has terminated, whether a settlement was reached, and attendance; (2) a mediation communication permitted under section 6; or

as

(3) a mediation communication evidencing abuse, neglect, abandonment, or exploitation of an individual to a public agency responsible for protecting individuals against such mistreatment. (c) A communication made in violation of subsection (a) may not be considered by a court, administrative agency, or arbitrator.

Section 8. Unless subject to the requirements of chapters 30A, 34, 39, and 40 regarding open meetings and chapter 66 regarding public records, mediation communications are confidential to the extent agreed by the parties or provided by other law or rule of this Commonwealth.

(b) If a mediator learns any fact described in subsection (a)(1) after accepting a mediation, the mediator shall disclose it as soon as is practicable. (c) At the request of a mediation party, an individual who is requested to serve as a mediator shall disclose the mediatorâ&#x20AC;&#x2122;s qualifications to mediate a dispute. (d) A person that violates subsection (a), (b), or (g) is precluded by the violation from asserting a privilege under section 4. (e) Subsections (a), (b), (c), and (g) do not apply to an individual acting as a judge. (f) This chapter does not require that a mediator have a special qualification by background or profession.

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WHAT YOU SHOULD KNOW ABOUT CHAPTER 32 ORDERS

By Lisa M. Ehrmann As an attorney who drafts many domestic relations orders, I am acutely aware of a really big problem with survivor benefits in a division of a pension under G.L. c. 32, Sect. 12 (Massachusetts government pensions).

A number of family law attorneys may not know that dividing a Chapter 32 pension is not a simple matter of splitting it 50-50 between the parties. There are three different options from which a participant in the retirement plan must choose at retirement, and the option chosen determines the amount of benefits to be divided.

A domestic relations order for a Chapter 32 plan (also known as a "Mangiacotti Order," named for the hallmark case Contributory Retirement Board of Arlington v.

Mangiacotti, 406 Mass. 184 (1989)) may be drafted such that the participant agrees ahead of time to choose a particular option at retirement, or it may be drafted to allow for a flexible choice of options at retirement.

Please be mindful of the fact that although a participant may agree in the separation agreement, or in the domestic relations order as to a particular option, there is always a risk that he could choose a different option at retirement regardless of what is stated in the domestic relations order.

In the event that should happen, the

domestic relations order will not be enforced as to the participant's choice of retirement option and the former spouse ("alternate payee") will be stuck with the actual choice made.

Under Option A (G.L. c. 32, Sect. 12(2)(a)), there is no survivor benefit available for an alternate payee but the monthly annuity is the largest.

Under Option B (G.L. c. 32, Sect. 12(2)(b)), there is a limited survivor benefit that is paid from the participant's employee contributions (if any are left by the time the participant dies), and under Option C (G.L. c. 32, Sect. 12(2)(c)), there is a true survivor benefit but the monthly annuity is considerably less than under Option A, to account for the cost of providing the survivor benefit.

However, if the alternate payee is remarried before the participant retires, and the participant chooses Option C at retirement, then the alternate payee simply loses his claim to the survivor benefit.

A domestic relations order may be drafted such that if the alternate payee is married at the time of the participant's retirement, then the participant is directed to choose Option B, which at least might provide some survivor benefit for the alternate payee.

There is one other "option," which is the pre-retirement option, often referred to as "Option D" (G.L. c. 32, Sect. 12(2)(d)),

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which allows a participant to choose a beneficiary for his pre-retirement survivor death benefit. But there is a real catch in this law.

If the participant dies pre-retirement and names the alternate payee as the Option D survivor beneficiary, does alternate payee actually get the survivor benefit? The answer is that it depends.

If the participant has not remarried, and if he has named the alternate payee as the Option D beneficiary (or the beneficiary for the death benefit of the accumulated contributions in the event he has remarried), then the alternate payee will get the preretirement survivor benefit in lieu of any other benefit if the participant dies preretirement.

So what happens if the participant has remarried and dies pre-retirement?

Massachusetts retirement boards have taken the position that the Option D benefit is automatically paid to the current spouse of the participant, regardless of whether or not the alternate payee has been named as the beneficiary.

Therefore, the alternate payee's anticipated nest egg disappears in a puff of bureaucratic smoke, unless the current spouse declines to take the benefit. And how often do you think that happens?

The following scenarios illustrate the above discussion. Assuming that the participant dies pre-retirement: 1) If the participant has no current spouse at his time of death, and the alternate payee is not named as either the "12(2)(d)"

beneficiary or the beneficiary accumulated contributions, then alternate payee gets nothing at all.

for the

2) If the participant has no current spouse at his time of death, and the alternate payee is named as the "12(2)(d)" beneficiary (or as the beneficiary for accumulated contributions if she is remarried) and has not remarried, she gets this survivor benefit under Option D, and nothing else.

3) If the participant has no current spouse at his time of death, and the alternate payee is named as the "12(2)(d)" beneficiary or as the beneficiary for accumulated contributions if she is remarried, and she has remarried, she gets the limited death benefit of the accumulated contributions, and nothing else.

4) If the participant has a current spouse at his time of death, regardless of whether or not the alternate payee is named as the contingent "12(2)(d)" beneficiary or the beneficiary of the accumulated contributions, the current spouse automatically gets the entire survivor benefit by operation of law, and the alternate payee gets nothing at all.

It would be most convenient for everyone if the law were to be changed, such that there would be no automatic pre-retirement payment to the current spouse, but rather, the payment would be solely contingent upon the choice of beneficiary on file.

In the meanwhile, there are really only two ways around this problem, and neither one Continued on next page

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is a fabulous option. The first solution is to offset the pension with another marital asset. This isn't always feasible, as often the pension dwarfs all other marital assets.

The other possible solution is that the former spouse would own a life insurance policy on the life of the participant. The problems with this route are that the participant may not be insurable, and the parties will undoubtedly argue over who should pay for the life insurance.

I strongly recommend squaring away issues concerning options and survivor benefits in the separation agreement in detail, to (hopefully) avoid having to return to them post-divorce.

Lisa M. Ehrmann is an attorney practicing in Sudbury. She can be contacted at (978) 443-6006, or by email at <qdrolisa@aol.com>. This article is re-printed by permission of Lawyers Weekly Inc..

“Disappointment, parent of despair.”

John Keats

Continued from page 12 Uniform Mediation Act

(g) A mediator must be impartial, unless after disclosure of the facts required in subsections (a) and (b) to be disclosed, the parties agree otherwise.

Section 10. An attorney or other individual designated by a party may accompany the party to and participate in a mediation. A waiver of participation given before the mediation may be rescinded.

Section 11. This chapter modifies, limits, or supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. section 7001 et seq., but this chapter does not modify, limit, or supersede section 101(c) of that Act or authorize electronic delivery of any of the notices described in section 103(b) of that Act. Section 12. In applying and construing this chapter, consideration should be given to the need to promote uniformity of the law with respect to its subject matter among States that enact it.

Section 13. (a) This chapter governs a mediation pursuant to a referral or an agreement to mediate made on or after the effective date of this chapter. (b) On or after one year from the effective date of this chapter, this chapter governs an agreement to mediate whenever made.

SECTION 2. This Act takes effect on July first, two thousand and three.

ADR COURT NEWS

by Christine W. Yurgelun Trial Court Receives Funding for Mediation Services Especially in light of this year’s extreme budget pressures which are felt through the trial court and impact all government agencies, I am pleased to have some “good” news. The Fiscal Year 2004 General Appropriation Act (that is, the state budget) funded two line items providing mediation services in the Trial Court, so that (at least some) parties who lack the financial resources to pay may have access to ADR services. One provision specifically supports fifteen community-based programs, seven of which are approved by the Probate and Family Court to serve as court-connected ADR providers; the second designates funds for Permanency Mediation, which supports mediation services offered statewide for abused and neglected children in Care and Protection, and Termination of Parental Rights cases in the Juvenile and Probate and Family Court Departments. We are grateful for the assistance of everyone who helped educate legislators concerning the benefits of mediation.

East Coast Regional Courts ADR Meeting On April 28 and 29, 2003, I attended the East Coast Regional Courts Meeting sponsored by the Courts Section of the Association for Conflict Resolution, the Policy Consensus Initiative, and the Maryland Judiciary’s Mediation and Conflict Resolution Office. There was one representative from each of the following states: New York, New Jersey, New Hampshire, Georgia, Florida, The challenges we face in Delaware, Alabama, North Massachusetts are shared by others Carolina, South Carolina, Virginia, Pennsylvania, Vermont and Maine. Representatives from the National Center for State Courts and American Bar Association were in also attendance. As the representative from Massachusetts, and because of support from the Hewlitt Foundation, I was invited to participate without cost to the Commonwealth.

The meeting was held at the Belmont Conference Center in Elkridge Maryland which was a beautiful setting, but we worked through meals and until 10:00 p.m., so there wasn’t much opportunity to appreciate the blooming lilacs. The meeting was intended to foster our learning from one another, and this was accomplished through the sharing of written materials (including sample forms used in various states), facilitated discussions and informal exchanges of information. Roundtable discussion topics included “Confidentiality,” “Funding and the Future of ADR,” and “Mediator Quality Assurance.” Perhaps not surprisingly, the challenges we face in Massachusetts are shared by others, and I was able to contribute to, and draw from, the collective wisdom in attendance.

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

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SILENCE IS GOLDEN

By Chip Rose It is a matter of self-selection that mediators are born talkers. Conversing, after all, is what we do. Because of this fact, the act of choosing not to speak is a little like trying to write with the other hand. Of course you can do it, if you absolutely have to--for example, if you break your wrist or finger. But for mediators, talking is just so natural and there is the fact that we have so much to say. So, it is against type that we look for one of the most powerful and least considered tactics in the mediator's tool box--the use of silence.

Strategic silence is much more than the absence of words. Depending on the context, it can be validating and supportive or challenging and threatening. Like every other intervention that a mediator may employ, it is most effective when it is used purposefully. Thus it seems fitting that we consider the humble act of silence.

There are any number of silence types. To begin with, we should distinguish strategic or tactical silence from the non-thinking variety. Although we all lapse into periods of the latter, it is the former that is the subject matter of this column. One of the most common types of silence is the kind that is observant. In order to understand the client's state of mind as he or she comes into the process, it is both appropriate and effective to listen and observe the client's demeanor.

This kind of silence allows us to begin learning what we need to know if we are to be skillful in developing a meaningful process.

Clients provide far more information to the mediator than the facts of their story. Their initial communications

reveal values, principles, positions, and interests. This type of silence provides valuable time to organize and strategize the appropriate path to an agreement.

A different kind of silence is the type that makes a statement. This can occur in many situations during the course of the mediation.

The circumstance that comes most readily to mind is the client blow-up. One party makes a statement or uses body language to push the buttons of the other and the parties go off in high conflict. Silence by the mediator can make the statement that the parties will not be rescued from a crisis of their own creation. As with any intervention (passive or active) the context must be considered. In remaining silent, the mediator may need to be prepared to deal with the client perception that the mediator is weak or passive. At the same time, the mediator has a powerful opportunity to demonstrate capacity for process management. Following the John Haynes school of mediation-by-inquiry, the mediator might ask how effective the bilateral verbal assault was in resolving their obvious perspective differences. In response to the predictable negative reply, the mediator might bring the parties back to some of the fundamental process anchors to demonstrate their use and purpose in maximizing the use of mediation time. The impact of such an understated approach is significantly enhanced by its stark contrast to the vacuum that follows their war of words.

A close cousin of the statement silence is the variety that can be described as contemplative. This type can be used as a

Family Mediation Quarterly

pregnant pause in the process, a moment to reflect, cogitate, conceptualize or consider.

Used for its form rather than its content, it

type is the fact that it comes out of our subconscious rather than conscious intentions. Where is the mediator who has never gone over a shopping list or the lunch time errand Strategic silence is much more sequence and not at the same time adopted a facial expression than the absence of words that strongly suggested an can be the bridge between what was being expressive, contemplative, observant silence discussed and what will be offered next for was actually at work there. Intended or not, consideration by the parties. This silence it too conveys a message to the clients who naturally draws the clients' attention into its observe it that the mediator is bored, wordless space, clearing the air and uninterested and wasting the client's money. redirecting their focus toward the desired objective. The longer the pause, the deeper If you have never consciously done so the clients are drawn into the void and the before, consider experimenting with silence more dramatic becomes the impact of to gauge the types, the circumstances and the whatever information is imparted comfort level you have with all the varied immediately thereafter. species of this golden tool.

Silence that is combined with facial communications is expressive silence. A smile, a frown, a furrowed brow all create a meaningful non-verbal communication.

Rolling the eyes, looking away, staring at a distant focal point are types of expressive silence the can serve the purposes of the facilitator in managing the process.

Finally, while it is nice to assume that we are always strategic and purposeful, the fact remains that some of our silence is detached.

The most distinguishing characteristic of this

Chip Rose is an attorney with a private mediation practice in Santa Cruz, CA, and is on the faculty of the Pepperdine Law School. He is currently providing training throughout the USA and Canada on the emerging practice of collaborative law. Chip can be contacted at (831) 429-9721, or by email at <crose@mediate.com>. This article was first published in AFM's Family Mediation News.

â&#x20AC;&#x153;Silence is the most perfect expression of scorn.â&#x20AC;?

George Bernard Shaw Summer 2003 â&#x20AC;˘ Vol. 2 No. 3

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PRESS RELEASE The Probate and Family Court Announces Changes To Parent Education Program Attendance Standing Order The Probate and Family Court also offered in Spanish at 3 locations.

Department announces the deletion of Massachusetts was one of the first states Standing Order 1-99 relative to Parent to include mandatory parent education as Education Program Attendance and has part of the divorce process in 1994. Now, inserted in its place Standing Order 1- a majority of states have implemented 03. Chief Justice Sean M. Dunphy said, similar mandatory parent education “The new Standing Order incorporates the programs across the country. Programs recommendation of our Pro Se Committee’s report and will The new Standing Order shall mandate that parties to a divorce action in which there become effective August 1, 2003 are minor children register with an approved parent education program help parents understand their children’s within sixty (60) days of service of the emotional needs and the effects of divorce original complaint upon the original on child behavior and development. The defendant and attend the next available programs also provide information to session.” Judges will continue to have the parents about constructive conflict authority to require parties in paternity, management, dispute resolution methods modification and contempt actions to and practical suggestions on parenting attend the program. after divorce as well as information about available community resources. All The second change to the Standing approved programs are required to Order is that the parties will be disseminate consumer satisfaction surveys required to pay $65.00 to the provider to the parents at the end of each class. The in advance of the class to offset the cost Probate and Family Court has found that a of materials and facilitators. This fee common theme keeps arising in these may be reduced to $5.00 upon a party surveys in which parents state that they submitting a copy of his or her allowed wish they had attended the parent Affidavit of Indigency and Request for education classes sooner in the divorce Waiver, Substitution or State Payment of process.

Fees and Costs. Parties have paid $50.00 to the providers since 1994. An increase in the fee has been long requested by parent education providers.

The Probate and Family Court now has 31 providers who offer the program at 63 Contact: Mark R. Quigley, locations around the state. The program is Administrative Attorney, (617) 788-6600 Family Mediation Quarterly

TAXING ENIGMAS: The Marital Home In Divorce

By James McCusker To deed, or not to deed - that is the question. Whether 'tis smarter to sell your equitable interest in the marital residence, or suffer the potential slings and arrows of you ex-spouse and continue to co-own it post divorce.

In many cases this conundrum will turn on the size of the marital estate and the value of the residence. Given today's elevated real estate prices, many divorcing couples will be forced into holding the marital residence jointly until it can be sold - simply because neither can afford to buy the other one out.

So what happens in the interim? Who gets to deduct the mortgage interest and real estate taxes? And how does the payment of these carrying costs affect the tax treatment of support payments?

The deductibility of real estate taxes is determined by an individual's ownership interest in property. Real estate taxes can be claimed as a deduction to the extent of the payor's pro rata share of the property.

So a 50% ownership position would allow for a deduction for taxes paid of up to 50% of any real estate taxes due on the property.

During the marriage the mode of ownership is usually a non-issue, because the spouses file a joint return and they both benefit from the deduction regardless of who owns the property. Even if they file separate returns, the IRS has taken the position that if the property is held as tenants by the entirety (TbyE), either spouse can take the full deduction for real estate taxes because they are jointly and

severally liable for all the taxes charged against the property. However, upon divorce, a residence that had been held as TbyE automatically converts to a title of tenants in common (TinC). You then have 2 undivided interests of 50% in the marital residence. If one spouse pays 100% of the real estate taxes due on that property he/she will only be allowed an itemized deduction for up to 50% of those payments. The remaining payments may be lost as nondeductible personal expenditures.

In the case of mortgage interest, deductibility hinges on 2 key questions: who is liable on the underlying note, and is the property in question a personal residence. The first query is easily determined - simply look to the note. Have both spouses signed the note? If they have, in almost all cases they both will be responsible for its repayment in full. And as with real estate taxes, this joint and several liability will allow for the full deduction of mortgage interest by either party. The answer to the second half of the equation is a little bit more obscure.

Once you've cleared the liability hurdle you now must determine whether or not the property constitutes a personal residence, either primary or secondary. For the spouse that stays in the house the answer is easy - it remains their principal residence and any interest paid on the note secured by Continued on next page

Summer 2003 • Vol. 2 No. 3

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the property is tax deductible. For the vacating spouse the answer is shrouded in gray - my favorite color. Well, we can say with certainty that the marital residence is no longer the vacating spouse's primary residence. But what about the designation as a second residence, a category that would still afford the non-occupant spouse the tax deduction for mortgage interest.

can qualify as alimony. To the extent that those payments are made on behalf of the other spouse, and otherwise qualify as alimony, they will be deductible. In other words, if the payor spouse makes payments of expenses for which he or she has no liability the payments can constitute alimony. In this capacity the payor spouse

In the case of mortgage interest, deductibility hinges on 2 key questions: who is liable on the underlying note, and is the property in question a personal residence

In its attempt to explain what constitutes a second residence the tax code gets positively Clintonesque.

It offers no clear guidance and forces us to debate and resolve the meaning of words like "of" and "is" to arrive at a definition.

So if I may jump into the gray abyss, here's what I could discern from the literature. I believe that as long as the ex-spouse and/or their children remain in the marital residence the vacating spouse can claim the marital home as a second residence.

Therefore if any mortgage interest is paid by the non-occupant spouse, and he/she is liable on the note, it should qualify as a valid deduction. A caveat here is that you can only have one qualifying second residence. So if you have another vacation home you will have to make a choice, on a yearly basis, as to which constitutes your one other residence.

So what happens to real estate taxes and mortgage interest paid by the non-occupant spouse that don't qualify as itemized deductions because of failure to meet the above rules? All may not be lost, in some cases those disallowed itemized deductions

is simply acting as an agent for the payee spouse. However, if the payments go toward the maintenance of property for which the payor retains an ownership interest, the portion of the payments allocable to his or her interest will not qualify as alimony. I think an example is in order.

Let's assume Wife (W) and Husband's (H) divorce becomes final in 2003. Under the separation agreement W is to remain in the marital home until the emancipation of their child in 2010. They both continue to own the marital residence as 50% tenants in common and are jointly liable on the mortgage. H is responsible for the payment of real estate taxes, mortgage principal/interest and major home repairs.

In this case 50% of the payments made for real estate taxes, mortgage principal/interest and maintenance would be deductible as alimony, as they were

WRITE ON!

Jane Appell Ed Berger Ken Cloke Peter Coulombe Lynn Cooper John Fiske Fern Frolin Howard Goldstein David Hoffman Mary Johnston Joyce Kauffman Oran Kaufman Marilyn Levitt Jim McCusker Clare McGorrian Patricia Pappernow Lynda Robbins Barry Shelton Debra Smith Kathleen Townsend Jay Uhler Les Wallerstein Bette Winik Janet Wiseman Christine Yurgelun Mark Zarrow

Writers for the FMQ

FMQ

Summer Spring

2002-2003

Continued on page 29

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MCFM News CONGRATULATIONS! UPCOMING EVENTS MCFM will host its 2nd Family Mediation Institute, on Friday, October 24, 2003, in Wellesley. A variety of seminars and workshops will focus on issues mediators confront in their everyday practice. A partial list of confirmed faculty now includes: Robin M. Deutsch, Susan Fay, David H. Goodman, David A. Hoffman, Olive Larson, John A. Moos, Rita Pollak, Vicki Shemin, and Laurie Tunick.

Institute registration includes all written materials and a buffet lunch.

Costs are $125 IF received BEFORE October 10th ($160 non-MCFM members), and $145 IF received AFTER October 10th ($180 non-MCFM member).

Space constraints require registration to be limited to 90 on a first-come, firstserve basis. See the insert in this edition of the FMQ for full details, and visit www.mcfm.org on-line for the latest list of presenters and programs.

REGISTER EARLY!

MCFM’s NEXT MEMBERS MEETING A FINANCIAL PLANNING FORUM Meet and learn from some of the area’s most knowledgeable financial planners in the divorce arena. Jim McCusker, Paulette Speight, Barbara Shapiro and others will answer your questions, discuss topical issues, and point out common financial mistakes that clients should avoid during divorce.

DECEMBER 3RD - SAVE THE DATE! 9:00 - 11:00 AM Lexington, MA (location TBA) See www.mcfm.org for details and driving directions

MCFM Vice President Fern L. Frolin was elected to the board of directors of The Massachusetts Probate & Family Inn Of Court for the 2003 - 2004 term.

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.

EXTRA COPIES The cost of additional FMQs is $5.00 each for members, and $7.50 each for non-members. Please mail requests for additional copies to DeLaurice Fraylick, 23 Parker Road, Needham Heights MA 024942001, and enclose a check made payable to MCFM.

MEMBERS ARE INVITED TO BRING A GUEST

GIVE THE FMQ TO CLIENTS & COLLEAGUES

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Summer 2003 • Vol. 2 No. 3

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Announcements

STAYING HEALTHY: A Guide to Keeping Health Insurance After Divorce GRAY DIVORCE

"In 1990, 6% of senior citizens were divorced or separated. By 2001, that figure had jumped to 10%, with a total of 2.2 million people divorced, according to U.S. Census data.... The late anthropologist Margaret Mead saw it all coming. She argued that marriage was designed for earlier eras, when parents raised children and then died in their 40s or 50s. Now, as people live longer, they're tied to marriages for decades of empty nesting...." Reported by Jeffrey Zaslow in the Wall Street Journal (6/17/2003)

Health Law Advocates (HLA) and Attorney General Tom Reilly are pleased to announce a new booklet: "Staying Healthy." Since 1996, HLA has fought, to eliminate barriers to staying insured after divorce, and to better educate everyone involved in the divorce process. Staying Healthy provides useful information on health insurance rights, options and resources. To request a copy, call Health Law Advocates at (617) 338-5241 or (800) 272-4232 ext. 2980, or e-mail HLA at info@hla-inc.org.

Also available on-line at www.ago.state.ma.us/pubs/stayinghealth02.pdf and www.hla-inc.org/public/StayingHealth0228.pdf.

NEW & FREE!

FEE CHANGES

MASSACHUSETTS COLLABORATIVE LAW COUNCIL, INC.

It now costs $215 to file a joint petition for divorce. Check with the divorce department of the Probate and Family Court in your county for a complete list of recent fee changes

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

CURRENT PARENT EDUCATION PROGRAM PROVIDERS

OPPOSITION TO GAY MARRIAGE DECLINES

The Massachusetts court's web site address is: www.state.ma.us/courts/.

If you click on the "Self Help" menu on the left, the Probate and Family Court's most recent listing of approved Parent Education Program Providers is available. It is "printable" as a list, or if you scroll down to the bottom it is also available for printing in PDF (Portable Document Format). For those with real internet, intestinal fortitude, you can get to the PDF version immediately by accurately entering the court's specific, slightly daunting, one word web page address: http://www.state.ma.us/courts/courtsandjudges/courts/ probateandfamilycourt/providerlist.pdf

Family Mediation Quarterly

"... According to a new poll by the Pew Research Center... 53 percent of respondents said they opposed gay marriages, while 38 percent said they backed them. In 1996, 65 percent said they opposed such marriages while 27 percent favored the idea." Reported by Robin Toner in the New York Times (7/24/2003)

FINANCIAL AID TIED TO FAMILY INCOME "... More than two dozen of the nations most selective (colleges and) universities have started looking at home equity in a new light, a change that could significantly benefit middle-income families.... The approach... will still count homes as an asset, and expect families to contribute as much as 5 percent of their equity toward an education. But it will cap that equity at 2.4 times a household's income, whereas before the entire market value of the home could be considered...." Reported by Greg Winter in the New York Times (7/27/2003) Summer 2003 â&#x20AC;˘ Vol. 2 No. 3

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Editorial Three Achilles Heels Prefaced as "An Act Making Uniform Certain Aspects Of Mediation," the Uniform Mediation Act ("UMA") is an idea whose time has come. If enacted and signed into law it will become Chapter 251A of Massachusetts General Laws.

The UMA is printed in its entirety in this edition of the FMQ. It currently consists of many excellent and some awful components.

Quite properly, the UMA defines mediation as helping parties reach a "voluntary agreement." Astoundingly, the UMA proceeds to violate the very voluntariness it purports to require.

Section 3 (a)(1) applies the UMA to a mediation in which "the mediation parties are required to mediate by statute or court or administrative agency rule...."

(Emphasis added.) Since mediation must be voluntary, it is impossible to mediate under compulsion. This constitutes the UMA's first Achilles heel.

neutrality. While Section 3 (b)(3) states the UMA does not apply to a mediation "conducted by a judge who might make a ruling on the case," Section 9(e) plainly contemplates a mediator "acting as a judge." The concept of a mediator sitting in judgment violates another core tenet of mediation.

A judge is by definition an adjudicator- a person who resolves conflicts by imposing the will of a judicial body upon disputants.

By virtue of her authority to impose settlement, a judge is the polar opposite of a mediator. The failure of the UMA to state in unequivocal terms that a mediator must be a non-decision making neutral marks its second Achilles heel.

Mediation is predicated on the ability of the parties to freely choose to negotiate.

This is an essential distinction between mediation and some other forms of dispute resolution, where the parties can either agree to be bound, or be compelled to abide by the results. Truly voluntary agreements cannot be mediated unless the parties are free to refuse to mediate.

Compulsion corrupts a central core of mediation

Pursuant to Section 9(f), the UMA "does not require that a mediator have a special qualification by background or profession." The UMA's omission of any required educational training or background leaves the public at the mercy of any charlatan who decides to hang out a shingle as a mediator. This is especially short-sighted in Massachusetts. M.G.L. c.

233, § 23C currently confers mediation confidentiality protection to mediators with "at least thirty hours of training in mediation...." The failure to proscribe even minimal, basic mediation training offers a loophole that invites virtually anyone to practice as a mediator under the color of law. This is its third Achilles heel.

Of equally critical significance, the UMA defines mediation in the striking absence of a fundamental requirement of mediator

The UMA has other problems as well. The UMA defines mediation as "a process in which a mediator facilitates

Family Mediation Quarterly

communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute." It also defines a mediator as "an individual who conducts a mediation."

Unfortunately, these definitions are bedeviled with vagueness. If you substitute the words "mediation" and "mediator" with "conciliation" and "conciliator," or "collaborative law" and

delivery of any of the notices described in section 103(b) of that Act."

So what's good about the UMA? First and foremost, its existence anticipates the future. This uniform act is being debated in legislatures across the country. As mediation continues to grow, the need to unify national rules of what's involved in the process increases. The rights of the parties, non-party disputants, Compulsion corrupts a central and the mediator will be enhanced by uniformity. The core of mediation existence of the UMA as "collaborative lawyer," the UMA pending legislation is a testament to the definition produces equally functional work of thousands of mediators. Below formulas. This blurs mediation into are some other positive attributes of the generic facilitation, making the UMA. differences between mediation and other forms of dispute resolution unnecessarily Section 4 proposes significantly expanded ambiguous. protections of privileged communications in mediation. This expansion of rights Section 7(b) states that "a mediator may would allow any mediation party, disclose: (1) whether the mediation has mediator, or non-party participant to occurred or has terminated, whether a refuse to disclose a mediation settlement was reached, and attendance." communication, and "may prevent any As benign as this seem, it is not based on other person from disclosing a mediation the consent of the parties to the mediation. communication."

Absent some compelling reason, the UMA should not empower a mediator disclose Section 5 generally tempers Section 4 by confidential information without allowing privileged mediation permission from both parties. communications to be waived by the express agreement of all parties to the Lastly, as a lawyer, I always get nervous mediation. Section 5(c) precludes a person when I read a law that I need a lawyer to that "intentionally" uses a mediation for interpret. Section 11 of the UMA overtly criminal purposes from asserting illustrates this problem. "This chapter the privilege. modifies, limits, or supersedes the federal Electronic Signatures in Global and Section 7(b)(3) allows a mediator to National Commerce Act, 15 U.S.C. disclose "a mediation communication section 7001 et seq., but this chapter does evidencing abuse, neglect, abandonment, not modify, limit, or supersede section or exploitation of an individual to a public 101(c) of that Act or authorize electronic agency responsible for protecting Summer 2003 â&#x20AC;˘ Vol. 2 No. 3

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individuals against such mistreatment."

Section 9(a)(b)(c) and(g) require mediators to conduct reasonable inquiries for conflicts of interest that would affect the impartiality of the mediator, and to make reasonable disclosures.

Continued from page 21 Taxing Enigmas

made on behalf of W. Fifty percent of the real estate taxes would be deductible by H as an itemized deduction. Also, 50% of the mortgage interest would be deductible as an itemized

The UMA reflects the increasing importance of mediation. Despite the benefits some parts of the UMA would bring to the practice of mediation, other parts would impose unacceptable burdens.

Its three Achilles heels render it insupportable as written. Mediation will eventually be governed by uniform state laws. If the UMA passes in its current form we will have to work to amend it. If it fails to be enacted, we will have to work to improve the text, so that the next time it comes up for a vote it can prevail. In either case we have our work cut out for us.

In its attempt to explain what constitutes a second residence the tax code gets positively Clintonesque

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

Although there are a multitude of fact patterns that can be run in this area, I believe that when a choice exists you should attempt to construe the payment of housing costs as alimony. In most cases this will work to the advantage of the family unit and certainly the payor spouse. As a precaution, when drafting the section of your agreement that relates to housing costs, I would include some type of "tax savings clause." This clause would serve to indemnify the parties should the ultimate tax treatment of the costs be at odds with the agreements original intent.

Email a letter to the editor: wallerstein@socialaw.com

deduction provided H chose the marital residence to be his second home in 2003. The 50% portion of mortgage principal and home repairs, not associated with W's half of the residence, would be lost for tax purposes as nondeductible personal expenditures.

Jim McCusker is a CPA and a certified financial planner. He can be contacted at (978) 2561323, or by email at <James@McCuskerAssociates.com>.

Family Mediation Quarterly

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 Dee Fraylick at <mcfm23@aol.com>.

REFERRAL DIRECTORY: Every MCFM member is eligible to be listed in the MCFM Referral Directory. Each listing in the Referral Directory allows a member to share detailed information explaining 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 (617) 965-2315.

CERTIFICATION: MCFM was the first organization to certify family mediators in Massachusetts. Certification is reserved for mediators with significant mediation experience, advanced training and education. Extensive mediation experience may be substituted for an advanced academic degree. A copy of the MCFM certification requirements is available on-line at the MCFM web site.

Every MCFM certified mediator is designated as such in both the electronic and the printed Referral Directory. Only certified mediators are eligible to provide mediation services to the Massachusetts Probate & Family Court through MCFM. Certification must be renewed every two years.

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 Summer 2003 â&#x20AC;˘ Vol. 2 No. 3

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Directorate

Editorâ&#x20AC;&#x2122;s Notice MCFM

MASSACHUSETTS COUNCIL ON FAMILY MEDIATION, INC. 23 Parker Road, Needham Heights, MA 02494-2001 Local Telephone & Fax: (781) 449-4430 email: mcfm23@rcn.com web site: www.mcfm.org

TOLL FREE: 1-877-777-4430 OFFICERS

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

President

Mary T. Johnston, 47 Church Street, Wellesley, MA 02482-6326, (781) 431-8552,email: maryt.johnston@erols.com

Vice-President

Fern L. Frolin, Grindle, Robinson, Goodhue & Frolin, 40 Grove Street, Wellesley, MA 02482, (781) 235-3300, email: ffrolin@grcattys.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

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

Laurie S. Udell, 399 Chestnut Street, Needham, MA 024922426, (781) 449-3355, email: lsudellesq@aol.com

Treasurer

Frank W. Benson, COMMON GROUND, 20 Park Plaza, Room 530, Boston, MA 02116, (617) 482-8660, email: FDBenson@ix.netcom.com

The FMQ is mailed to all MCFM members. Copies are provided to all Probate & Family Court judges, local dispute resolution coordinators, and all law school libraries in Massachusetts. An archive of previous editions of the FMQ are now available on the MCFM web site <www.mcfm.org>.

DIRECTORS

Lynn K. Cooper, Michael L. Leshin, Karen J. Levitt, Harry E. Manasewich, Steven Nisenbaum, David River, Lynda J. Robbins, Barry L. Shelton, Debra L. Smith, Marion Lee Wasserman, Les Wallerstein & Mark I. Zarrow

DIRECTORS EMERITUS

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

ADMINISTRATOR

DeLaurice Fraylick, 23 Parker Road, Needham Heights, MA 02494-2001, (781) 449-4430, email: mcfm23@rcn.com

Family Mediation Quarterly

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 Winter- January 15th

Fall- October 15th Spring- April 15th

All MCFM members and friends of family mediation are encouraged to contribute to the FMQ. Every mediator has stories to tell and skills to teach. Please share yours.

Summer 2003 â&#x20AC;˘ Vol. 2 No. 3

Family Mediation Quarterly MASSACHUSETTS COUNCIL ON FAMILY MEDIATION 23 Parker Road Needham Heights, MA 02494-2001 MCFM TOLL FREE: 1-877-777-4430

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