Family Mediation Quarterly
INSPIRING SETTLEMENTS SINCE 1982
MASSACHUSETTS COUNCIL ON FAMILY MEDIATION 23 Parker Road Needham Heights, MA 02494-2001
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FAMILY MEDIATION QUARTERLY Vol. 4 No. 3
Summer 2005
NONPROFIT ORG. U.S. POSTAGE PAID NEEDHAM, MA PERMIT NO. 53289
MCFM
The Massachusetts Council On Family Mediation is a nonprofit corporation established in 1982 by family mediators interested in sharing knowledge and setting guidelines for mediation. MCFM is the oldest professional organization in Massachusetts devoted exclusively to family mediation.
Contents
V I N TA G E A D V E R T I S E M E N T 1
MEDIATING THE ORIGINS OF FAMILY CONFLICT: Part I of II By Kenneth Cloke
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RED FLAGS IN A BLUE STATE Lesbian and Gay Divorce in Massachusetts By Joyce Kauffman
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FROM THE LAND OF LINCOLN... By John A. Fiske
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COURT COMPELLED “MEDIATION?” By Floyd Borakov
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DIRECTORY OF RELATED PROFESSIONALS An Idea Whose Time Has Come By Mary T. Johnston
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LESSONS FOR MEDIATORS FROM MALCOLM GLADWELL'S "BLINK" A Book Review by By Debra L. Smith
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MEDIATING THE ORIGINS OF FAMILY CONFLICT Part I of II By Kenneth Cloke [Some passages are drawn from Kenneth Cloke and Joan Goldsmith, The Art of Waking People Up, Jossey Bass/Wiley, 2003] Our earliest experiences with conflict take place in our families of origin, where we first learned how to react when other people became angry or upset at what we said or did, or when we made mistakes, or competed for limited resources, or when things did not go our way. These early lessons solidified into patterns that helped us navigate our way through early family conflicts and cope with the systemic dysfunctions that often characterize family relationships. These patterns then became engrained after years of rewards and punishments, successes and failures, and to the degree that they remained unconscious and outside the realm of choice, were brought whole into our later, adult relationships, covertly influencing our conflict behaviors, both at home and at work. When the family sources of these learned conflict behaviors remain unexamined and inexplicit, they generate chronic conflicts and breed frustration and impasse. Behaviors that may seem irrational to others commonly yield rational, resolvable explanations when traced back to their family origins.
While mediation is a forum in which the family origins of family conflicts ought to be recognized, discussed, and potentially transcended, many mediators are reluctant to inquire into these sensitive areas, believe it is unnecessary to do so, or do not know how to safely and successfully surface family patterns. Families as Generators of Conflict When we recognize that families are generators and crucibles of conflict, we begin to notice that they are also systems that regularly produce — not only chronic disagreements and antagonisms between family members, but patterned, ritualistic responses to dysfunctional behaviors that revolve in a circle and become “default settings” that continue to influence conflict behaviors even after the family has ceased to exist. The most primordial archetypal conflicts occur in families. As units of intense attraction, families also generate forces of intense repulsion. The coexistence of contradictory dynamics, such as desire and revulsion, secrecy and intimacy, passivity and aggression, intimacy and emotional distance, power and powerlessness, addiction and dependency, anarchy and autocracy, stimulate and shape family conflicts. The centrifugal and centripetal forces that draw families together and thrust them apart co-exist throughout their
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members’ lifetimes, sometimes urging them to deeper levels of bonding, sometimes making them feel utterly alone. A constant struggle between tenderness and rage, loyalty and betrayal, control and surrender, gain and loss, life and death often seethe beneath the surface of public politeness and domestic bliss. These forces, along with those arising from raising children, maintaining separate work lives, financial constraints, stepfamilies, deaths, illnesses, and similar crises, can force family members together or drive them apart. A gulf of silence can then begin to grow, increasing in size and weight until it becomes so burdensome and oppressive that love dies and the family ends. These tensions are equally present in married and unmarried families, families with same-sex parents, and step families. Therefore, instead of referring to “marriage” or “divorce,” I prefer the more inclusive terms: “relationship” and “separation.”
Many children learn from their parents how to discriminate against and exclude those without power; how to distribute resources based on acquiescence or subjective preferences; how to punish those who resist or disobey; and how to lie in order to avoid punishment. Others are taught how to pass the buck and deny responsibility for what they did; how to avoid conflict and use negative emotions to get what they want; and how to protect themselves by blaming or attacking others. What many children ultimately learn through early conflict experiences are two very clear messages: First, that power allows them to treat others disrespectfully; and second, that it is easier and safer to avoid conflicts, or fight back, or be obedient, than to be honest, empathetic and committed to engaging their opponents constructively. For the most part, these early conflict lessons are lost from conscious awareness and seldom recognized or discussed in mediation, even when they
When the family sources of learned
How Parents Teach conflict behaviors remain Children Conflict The Responses unexamined and inexplicit, they lessons parents teach their children include generate chronic conflicts and breed not only the behaviors frustration and impasse. they consciously and explicitly want them to learn, for directly impact the sources of the example, about safety and politeness, but conflict, or actively hinder steps toward others they may not even be aware they resolution. Yet to the extent that they are teaching, including how to respond to remain unexamined, they indirectly conflict. shape people’s responses and the Continued on next page Summer 2005 • Vol. 4 No. 3
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possibilities for resolution. It is not necessary for mediators to function as psychotherapists in order to surface and discuss family patterns, or to assist the parties in critically examining their family patterns and the consequences that flow from them. By doing so, we can help them gain insight and release from their unconscious conflict archetypes, discover the family origins of many of their conflicts, and improve their ability to resolve them successfully.
themselves through their members’ responsive behaviors, partly out of an assumption that only the equally dysfunctional responses of others can justify one’s own negative behaviors, overcome one’s subconscious guilt and shame, rationalize the initial dysfunctions by making them appear normal, and create a self-fulfilling prophecy that transforms aberrant behaviors into cyclical, systemically reinforced patterns.
Those who grow up in dysfunctional families generally feel they have limited options, and the It is not necessary for mediators to only choices they function as psychotherapists in order are able to are to surface and discuss family patterns. recognize those that, in one Early family experiences with conflict way or another, permit the dysfunction to can reduce family members’ skills and continue. These include: self-confidence in being able to successfully resolve future disputes, • Denying the existence of the constrict their spirits and limit their dysfunction and sweeping it under the ability to participate in democratic rug. decision-making. In these ways, dysfunctional conflict experiences in • Becoming apathetic or cynical, going families reinforce hierarchical, with the flow, and putting a minimum bureaucratic, and autocratic behaviors amount of energy and effort into and organizational systems. They resolving disputes. undermine people’s capacity for independence, self-determination, • Gossiping, complaining, judging, critical thinking, collaboration, and spreading rumors, encouraging others to constructive dissent, which are fight, or becoming professional victims. prerequisites for conflict resolution — not merely in families, but in workplaces • Blaming or directing anger at those who are dysfunctional and taking time and social and political activities. from creative endeavors to engage in Options in Responding to Family dysfunctional battles with them. Dysfunctions Dysfunctional family systems routinely seek to replicate • Choosing not to surround themselves Family Mediation Quarterly
with the dysfunction and leaving. • Adapting, accommodating and becoming dysfunctional themselves. None of these responses eliminates the dysfunction. Each traps those involved in equal or opposite dysfunctions, and cheats them out of learning, functionality and growth. Contrasted with these strategies for escaping and recovering from family dysfunction are responses that require greater courage, support, and determination. These strategies break with the past, seek to prevent the destructive behavior from moving forward, and acknowledge the need for renewal and healing. They include: • Openly confronting the dysfunctional behavior and initiating a personal search for the underlying reasons that gave rise to it. • Dismantling whatever it was in themselves that encouraged, accepted, or allowed the dysfunctional behavior to occur. • Negotiating agreements to end or marginalize the behavior. • Seeking assistance from experts such as therapists, counselors, facilitators, and mediators in resisting the dysfunction. • Using mediation to better understand, end, and transcend dysfunctional behavior.
• Choosing, at whatever cost, not to become dysfunctional themselves. • Breaking contact with those who engage in dysfunctional behaviors or invite dysfunctional responses in others. • Joining others in collaboratively opposing and eliminating the perceived need to engage in dysfunctional behavior. The choices available to family members in addressing systemic dysfunctions fundamentally boil down to two: they can either tolerate the dysfunction and adapt their thinking and behavior to it, or act to limit it by transforming the way they think and behave when they are in its presence. Whichever choice they make will be based partly on what they learned in their families of origin about their ability to overcome dysfunction, and partly on the availability of support for personal and familial change in mediation. When people learn to successfully oppose dysfunctional behaviors — even in small ways — they feel more powerful in resolving their disputes, and able to confront their next dysfunctional encounters with greater self-confidence. In many cases, this may be enough to break their cycle of conflict, even if their present dispute is unresolved. Overcoming Over- and UnderCompensations Many dysfunctional behaviors originate in a perceived need by people in conflict to over- or underContinued on next page
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compensate for what their families did or did not do when there was conflict. If, for example, they grew up in families in which there was a great deal of yelling, they may learn to yell louder, or decide to withdraw and become incapable of responding skillfully when someone yells at them. Or, if they grew up in families where there was no yelling, they may never learn how to handle it and be unable to hear aggressive communications accurately at an emotional level, or become frightened and try to control everything that could threaten their stability.
auto-pilot, simply trying to hold onto the status quo and protect the fragile identities they feel they need in order to survive. They avoid explicit and implicit feedback and do whatever is required to meet the minimum demands imposed by life, work, and intimacy. Yet keeping silent, going to sleep, and doing the minimum have internal and external consequences. Ultimately, they produce lives and relationships that are regressive, self-defeating and meaningless, producing poor selfesteem, loss of intimacy and separation or divorce.
We all learn to survive our families of origin and develop strengths that allow us to succeed. We hone the skills that result in success and shun those that end in failure. Yet we rarely recognize that our very strengths conceal corresponding weaknesses; that a preoccupation with success can prevent us from learning from failure; and that we can continue inventing strategies for getting what we want by recognizing and sensibly compensating for our family patterns. It is possible in mediation for either or both parties to acknowledge the impact these defining forces had on their responses to conflict and their ability to interact successfully with each other. It then becomes possible for them to own their family histories and choose how they want to interact in their present conflict.
The degree to which people in conflict are able to openly question and respond successfully to dysfunctional behaviors reflects the degree to which they have awakened and accepted responsibility for their own roles in maintaining dysfunctional family systems.
Four Steps in Mediating Dysfunctional Family Patterns As a result of dysfunctional childhood experiences, many people spend much of their time on
Four steps mediators can take to encourage conflicting parties to change their approach to family patterns consist of encouraging them to: 1. Become aware of how their own thinking, feeling, and acting is based on patterns from the past, and how these patterns play out in their present conflicted relationships. 2. Take responsibility for the negative effects these patterns have created for themselves, their partners and relationships. 3. Choose to break these patterns and work collaboratively with others to
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invent new ways of responding to problems and challenges.
on.
Admittedly, this is dangerous territory. 4. Solicit honest feedback and learn from As stated earlier, many mediators feel their conflicts how to develop the skills, uncomfortable probing into family support and strategies they By seeking permission to ask questions that direct people to their inner truths need to break old patterns. about past family experiences, we can
help them complete these experiences As people in conflict become and move on. Admittedly, this is more conscious dangerous territory. of their inherited patterns of thinking, feeling histories, or believe they lack the skills to and acting, they can assess their do so. Others consider it an intrusion behavioral legacies and choose to no into intimate, non-conflict-related areas. longer be controlled by them. As they Still others feel anxious because they take charge of their lives, they have not resolved their own family automatically become more responsible experiences. Yet by failing to examine and satisfied in their family interactions and discuss these issues, both with and more conscious and effective ourselves and with the parties, we ignore relational citizens. When they become one of the most important causal factors self-reflecting and responsible, they can in shaping dysfunctional attitudes, not only learn from their past, but design habits, and behaviors. Worse, we different futures and become fully condemn conflicted parties to continue responsible for their roles in the present. blindly following unconscious family patterns and experiencing the same Exploring Family Patterns in preventable chronic conflicts. Mediation Mediators rarely inquire into the family backgrounds of those It is always important to step lightly in with whom they mediate. But unless we these conversations. If the inquiry takes learn to address these early family place in caucus, privately, experiences it will be difficult for people empathetically, constructively, and in the who sincerely want to change to context of trusting, ongoing dialogue, we recognize the true source of their can more easily ask permission to difficulties, or discover how they can discuss family patterns without sparking become free of them. By seeking embarrassment, defensiveness, or permission to ask questions that direct resistance. It is quite easy in mediation, people to their inner truths about past for example, to simply request family experiences, we can help them permission to ask someone about their complete these experiences and move Continued on next page Summer 2005 • Vol. 4 No. 3
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family background. If we probe gently, tentatively, and empathetically to assess each person’s level of comfort with the topic, we can gain permission to go a little further. We can then ask progressively more probing questions while sensitively monitoring verbal and nonverbal signals, encouraging each person through their resistance and providing supportive feedback as important stories, insights, and revelations emerge. Here are some of the questions I find useful: • Can you each tell me a little something about yourself and your family background? • Is there anything about [the other person] or issue that reminds you of someone or some problem from your family of origin? How? • How did you respond when this happened in the past? What was the outcome? What did you learn from that experience?
behave in conflict? What did you learn? Was it successful then? Is it successful now? • Do you believe your family background has affected the way you are approaching the issues or difficulties you are facing today? How? What messages did your family communicate regarding this issue or problem? Regarding conflict? • What is your sibling order? Did your relationship with your siblings have an impact on your attitudes and ideas about yourself? On the issues in this dispute? What is the sibling order of [the other person]?
• What kind of relationship would you like to have with [the other person]? Why?
• Have you ever found yourself in this position before? When? What did you do? What was the outcome? • From whom did you first learn how to
A mediator may ask the parties to agree
• Do you have any feelings or reactions left over from the past that are similar to those you are feeling now?
check-in sessions to see if old patterns are recurring; or give permission for open declarations that certain dysfunctional behaviors are no longer acceptable. Kenneth Cloke is the director of the Center for Dispute Resolution in Santa Monica, CA. He has been a mediator, arbitrator, university professor, and judge, and the author of several books, including Mediating Dangerously. Ken can be contacted at Kcloke@aol.com.
• Do you want to achieve a different result now? Why? Would you be willing to say that to [the other person]?
A mediator may also assign homework that allows each person to probe deeper into their family issues, for example, by asking someone to talk with parents or siblings and find out their version of what happened; or to write down all the words that describe the other person in their conflict and afterwards write the name of the member of their family who behaved most similarly; or to keep a journal or diary and record insights and thoughts regarding the person or problem, then look back over it for patterns before the next session.
• What were some of the unwritten rules or unspoken expectations about conflict in your family of origin?
on ground rules for future behaviors, request support from each other in making needed changes, and invite feedback when old behavioral patterns resurface. The change process can be made more casual and enjoyable by negotiating low-level prizes or rewards for successfully transcending the conflict and agreeing on penalties for regression. Or a mediator may offer support to keep the parties on track; or identify words, signals, or gestures that the other party can use to provide subtle reminders about backsliding; or request periodic
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"Problems cannot be solved at the same level of awareness that created them." Albert Einstein
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RED FLAGS IN A BLUE STATE: Lesbian and Gay Divorce in Massachusetts By Joyce Kauffman Access to the legal rights and responsibilities of marriage, granted by the SJC in the landmark decision, Goodridge v.Department of Public Health, 440 Mass. 309 (2003) is crucial for lesbian and gay couples. The ability to marry not only puts a public face on our relationships and our families, it may indeed be the single most important step on the road to full equality for the lesbian and gay community. On November 18, 2003, Chief Justice Margaret Marshall, in Goodridge v. Department of Public Health, wrote: Marriage is a vital social institution. The exclusive commitment of two individuals to each other nurtures love and mutual support; it brings stability to our society. For those who choose to marry, and for their children, marriage provides an abundance of legal, financial, and social benefits. In return it imposes weighty legal, financial, and social obligations. The question before us is whether, consistent with the Massachusetts Constitution, the Commonwealth may deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry. We conclude that it may not. The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of secondclass citizens. In reaching our conclusion we have given full deference to the arguments made by the Commonwealth. But it has failed to
identify any constitutionally adequate reason for denying civil marriage to same-sex couples. Six months later, on May 17th, 2004, for the first time in the history of our nation, same-sex couples began to legally marry in the Commonwealth of Massachusetts. It is natural that we would have many questions about what this means for us, given that it is a right to which we have never had access. Some of those questions may not be fully answered for years to come while we watch how the system grapples with the many legal challenges ahead. Marriage for lesbian and gay couples is not the same as marriage for heterosexual couples. It is only the statebased benefits that are gained. It is not that these benefits are insignificant – they are not – but it is crucial to understand that these benefits are in large part not portable. Not only does the federal government have the Defense of Marriage Act (DOMA), but 40 states now have “mini-DOMAs,” either in the form of legislation or more and more in the form of constitutional amendments. Effectively, this means that the federal government and at least forty states will not recognize lesbian and gay couples married in Massachusetts as married; indeed the federal government and those DOMA states may not recognize the validity of a same-sex divorce. This means that married gay
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couples must continue to protect themselves through estate planning documents, partnership agreements, coparent adoptions – the belt and suspenders approach to living. It is important to point out four red flags for couples considering marriage. These are situations in which people should seriously consider avoiding marriage: 1. Military personnel – getting married is obviously a violating of “don’t ask, don’t tell” and is likely to result in discharge.
married. This is because getting married is a clear signal that you intend to remain in the US, an intent that may result in deportation. In my opinion, one of the best things about being able to marry is creating access to divorce. For both unmarried heterosexual and unmarried gay couples, dissolving our relationships is extraordinarily difficult under the present legal system. Since most couples simply do not create written partnership agreements (as the couple in Wilcox v. Trautz, 427 Mass. 326 (1998) did), the
2. Income-based state Married gay couples must continue benefits – if one of the to protect themselves through parties is receiving any income-based benefits estate planning documents, from the Commonwealth (such as partnership agreements, co-parent Section 8 housing), the adoptions – the belt and spouse’s income will be suspenders approach to living. included in the determination of continued eligibility distribution of their financial assets and liabilities can be a legal nightmare. and they may lose the benefit. Particularly for the individual who is in a 3. Adoption – anyone who is considering lesser position economically, the struggle international adoption should wait to to recoup economically can be daunting marry until after the adoption is – and often impossible. finalized. There is no other country in the example, non-economic world that allows openly gay individuals For to adopt and the required home study contributions (such as caring for the must reveal marital status. There is home and children) are not credited as debate about whether this will also be a they would be in a marriage. Although problem in the context of domestic there are legal remedies available adoptions given the 40 states that have –through an equity action or a petition to DOMA laws but there is a bit more hope partition real estate – and legal theories (unjust enrichment and implied contract, on this front. for example), they are cumbersome, 4. Finally, immigration –bi-national difficult to prove, and costly to litigate. this couples absolutely should not get All Continued on next page Summer 2005 • Vol. 4 No. 3
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12 makes divorce look pretty good. And even better when you consider that married gay couples who leave Massachusetts may end up in a legal quagmire because they can’t get divorced. Just as marriage itself is not the same for gay couples as it is for heterosexuals, neither is divorce. Consider, for example, the first factor listed in Chapter 208, §34 - length of marriage. If a couple had been together for twenty years when they married in 2004, how long is their marriage? Several judges have intimated that they would consider evidence that such a marriage should be considered long-term on the theory that if the couple could have married, they would have. This of course is crucial in making a determination of what is equitable in terms of a division of assets. The outcome will be drastically different if our couple, together for twenty-one years when they divorce in 2005, are seen as having a short-term (one-year) marriage.
this will not be possible for divorcing gay couples. How do you negotiate a settlement under such circumstances? Will a retirement fund have to be cashed out – incurring the 10% penalty as well as the tax liability – in order to create an “equitable” division of assets? And now consider the home. In a heterosexual divorce, the transfer of the home from one spouse to the other results in zero tax consequence. However, again because of the federal DOMA, transfers between divorcing gay couples will not receive preferential tax treatment by the IRS. How will we counsel our clients – and mediate divorces – to account for possible capital gains or gift tax implications?
Then there is the question of support – child support, of course, will not be a problem; there are no tax implications for the payment of child support. Please note, however, that married gay couples who have children born into the marriage must do co-parent adoptions – if they do Often the major assets in a divorce are a not, federal benefits such as tax home and/or retirement funds. Consider deductions will not be available to the non-biological parent and the Married gay couples who have legal relationship between that and the child will not be children born into the marriage parent recognized in at least forty must do co-parent adoptions other states. first the division of retirement assets. Making a determination as to a transfer of retirement assets in a heterosexual divorce is quite straightforward; a QDRO will be drafted and the transfer effectuated. Since most retirement plans are governed by ERISA – federal law –
Married children who had children before the marriage obviously must also do adoptions; otherwise one of the parents will have no legal relationship to the children and may have to pursue a de facto parent claim in addition to the divorce.
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The payment of alimony, on the other whether the federal government will hand does present a problem. Again, honor a divorce judgment when it does what we take for granted – alimony is not honor the marriage itself. deductible to the payor and Just as marriage itself is not the taxable to the payee – will not be true for divorcing same for gay couples as it is for gay couples. The federal heterosexuals, neither is divorce. government will not recognize the validity of the marriage nor of the divorce. Creativity will need to be Litigation is currently ongoing in a employed to determine how to provide number of lesbian and gay divorce needed support without undue tax situations. We have yet to see how these will play out – some are being mediated, consequences. some are being negotiated by attorneys, It has been suggested that there is one and I’m aware of at least one that is other solution: litigation. A judgment by being litigated. We will all need to be the Court must be followed and there are relentlessly creative as we guide our no tax consequences. If a party is clients through this legal landscape. awarded an amount of money or an asset Divorce is hard enough – I hope we can through a court judgment (just as in a make it a little less burdensome than it personal injury judgment), she does not seems it must be for our lesbian and gay pay taxes on that settlement. This of clients. course means one of two things: all gay Joyce Kauffman specializes in divorces are litigated (not an family law including co-parent insignificant expense and certainly more adoptions, estate planning and emotionally draining than a negotiated or divorce mediation. She brought mediated settlement) or we find ‘friendly’ judges who will, after brief and won the first case to get two women hearings, incorporate the attorneys on a birth certificate without an adoption. proposed findings of fact and Joyce can be contacted at her Cambridge conclusions of law and enter judgments. office at (617) 577-1505, or at It still remains to be seen, however, joycekauffman@mindspring.com
"Marriage has many pains, but celibacy has no pleasures." Samuel Johnson, 1709- 1784
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FROM THE LAND OF LINCOLN... By John A. Fiske You may be shocked to learn that the Illinois Bar Association has just released an April opinion which seems to say that a lawyer who is mediating a divorce cannot write the Separation Agreement. See http://pub.bna.com/fl/0403.htm. The same issue of the BNA Family Law Reporter, May 17 I believe, includes a Utah Ethics Committee opinion saying basically the same thing, with 5 out of 14 members dissenting. I naively thought, 25 years after the Boston Bar opined on the subject, that the subject was sort of passé. Silly me. Please note that Illinois State Bar Association Advisory Opinions on Professional Conduct “are prepared as an educational service... in response to a specific hypothesized fact situation... they do not have the weight of law.” Below are excerpts of their views. FACTS A divorce lawyer acts as a mediator in domestic relations matters. At the conclusion of a successful mediation between husband and wife - neither of whom are represented by counsel - lawyermediator drafts a proposed judgment of dissolution of marriage, marriage separation agreement and joint parenting
“A divorce, even when uncontested, is litigation.” agreement. Lawyer does not place lawyer’s name on the documents and does not enter an appearance for either husband or wife. The parties take the documents drafted by lawyer-mediator, file those documents with the court, and appear pro se at all
subsequent court hearings. QUESTIONS May a lawyer who mediated a divorce settlement between unrepresented husband and wife prepare a proposed judgment of dissolution of marriage, a marriage separation agreement and a joint parenting agreement for husband and wife? May the lawyer who drafted these documents for unrepresented husband and wife allow them to file these documents with the court and appear pro se at all subsequent court hearings? OPINION It is improper for a lawyer who mediated a divorce settlement to draft a proposed judgment of dissolution of marriage, marriage separation agreement and joint parenting agreement for unrepresented parties. When drafting said documents for these unrepresented litigants, the lawyer-mediator moves beyond the role of mediator and takes on the role of lawyer representing both parties. This creates a conflict of interest that the lawyer-mediator cannot cure.... The mediator has a duty to advise the mediation participants to obtain legal counsel and advice prior to reaching an understanding. A referral for legal advice should be made before the decision making process and not after the participants have already reached a full accord to which they may have made an emotional commitment. Mediators, including attorney-mediators, shall not advise either party as to their legal rights or responsibilities so as to direct the parties’ decision on an issue. Each party
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must be referred to independent legal counsel for that advice. A single attorney to advise the participants as to the law in the course of a mediation is not a substitute for independent legal advice.... A divorce, even when uncontested, is litigation. It involves the filing of a lawsuit and a judgment being entered against both parties.... Thus, the lawyer cannot represent opposing sides in even an “uncontested” divorce.... Addressing the second question presented, the Committee believes that under the facts presented by this inquiry, this lawyermediator may not limit the scope of legal representation to the preparation of a proposed judgment of dissolution of marriage, a marriage separation agreement and a joint parenting agreement.... The Committee noted that the client must give “his fully informed consent to such limitation of employment” and that the lawyer must take reasonable steps to avoid foreseeable prejudice to the client including being certain that the client fully understands the merits of the client’s position, the position the other party to the litigation is likely to take, the procedures involved in the trial - including the requirements for a valid prove-up, and the consequences of the lawyer not appearing in the proceeding.... By sending the client to court after preparation of the petitions showing the client to be pro se, the lawyer has taken part in a plan or scheme to avoid his punctual fulfillment of professional commitments and he has failed to treat the court with the proper courtesy and consideration....
Author’s Afterthoughts Can people be trained to write good legal contracts without being lawyers? At the risk of offending law schools, I suppose so. For example, there are people who go to law school and never bother taking the bar exam and becoming lawyers, and I suppose
Gifted human beings make great mediators. they could write good agreements. Gifted human beings make great mediators. They do not have to come from any particular profession of origin. A homemaker on Nantucket was one of the best mediators we ever trained at Divorce Mediation Training Associates, with an amazing ability to calm angry people. She knew how to write a memorandum of what they agreed to, and left it to their lawyers to write a legally binding contract. What if MCLE gave a course in writing Separation Agreements for non lawyers? Even if it were just one afternoon, the people who took it (a) would presumably be coming in order to learn and (b) would learn something that would improve their writing. So what if the MCFM had an educational program on agreement writing? It would last two hours, and it would be very well attended I predict. Even if it just pointed out three huge pitfalls to avoid, that could be helpful. At the moment I think I value the bright
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COURT COMPELLED “MEDIATION?” By Floyd Borakov Editor’s Note: This article was emailed to some members of the MCFM Board of Directors, and it raises issues of broad concern.
and reported to the judge along with a recommendation. I was informed that this process is governed by rule 1:18 of the Massachusetts Supreme Judicial Court.
I am writing your board so that you might consider some disturbing information. Last week I entered into a forum on www.divorcenet.com regarding visitation issues. I noticed a posting that indicated that during a mandatory court ordered mediation, the mediator was making decisions for the agreement, and offering recommendations for the judge on an appropriate order, as well as sharing any communication that occurred during the session to the judge.
Rule 1:18 states in part:
Of course this raised the yellow flag for me, so I inquired further. I learned from the posters that these third parties are not mediators, but rather Family Support Probation Officers practicing dispute intervention. Under ADR “dispute intervention” is listed along with mediation.1 I called the family and probate department and learned that these officers are employees of the court. They do not provide mediation services but rather “dispute intervention services.” I was told that they can help the parties come to an agreement and make recommendations to the judge on what should be ordered. I was also told that there is no confidentiality and that this is not voluntary in nature. If someone decides not to participate after a few minutes or at any point, this is noted
(i) Dispute Intervention Neutrals. (i) Training Requirement. A provider of dispute intervention services shall successfully complete a training course and a court orientation, both of which comply with the guidelines adopted pursuant to Rule 8(b)(iv). A provider of dispute resolution services shall also complete any additional specialized training required by the Trial Court Department in which he or she is providing dispute intervention services. (ii) Mentoring and Evaluation Requirement. A provider of dispute intervention services shall complete the mentoring and evaluation requirements set forth in the guidelines adopted pursuant to Rule 8(b)(iv). (iii) Continuing Education. A provider of dispute resolution services shall participate in any continuing education required by the approved program with which he or she is affiliated or by the court department in which he or she is providing services. (iv) Continuing Evaluation. A provider of dispute resolution services shall participate in regular evaluation as may be required by the relevant Trial Court Department.
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In the ADR court publication,2 the description of ADR includes self determination, informed consent, integrity, quality of qualifications including highest ethical standards. (NOTE: dispute intervention services are listed under ADR.) It further states that the court can order parties into dispute intervention, (see pages 9, 10, 11 & 13).
to <http://www.acrnet.org/pdfs/hoffmanaffolder.pdf>. When people go to court for a modification, the judge has most parties (and their attorneys, if represented by counsel) meet with a family service officer. When differences are successfully hashed out parties agree to a stipulation. Most often there are arguments — and each side
The intervention process seems in its The intervention process seems in its basic description basic description very much like very much like mediation. The mediation with the exception of it being exception is that it mandatory, not confidential and formal is mandatory, not recommendations are made. confidential and f o r m a l recommendations are made. wants to “win.” The officer then tells people what the judge will most likely Upon review of posts to the forum noted order. Each judge is different and the above you will see that the participants officer knows each judge’s quirks. If the themselves called this process mediation, parties cannot agree, they go back before and the providers mediators. There is even the judge and he/she hears the merits of the a reference that the participant’s attorney case and rules (most of the time) as the referred to the provider as a mediator. This officer said they would. would indicate that there is confusion between the two processes. The posters Based upon the information available to note that there is no document to sign date I have formed these opinions: stating precisely what the role of this provider is and that there is no 1. This program is very confusing to confidentiality or identifying what the participants who have a difficult enough participants’ rights include. time understanding mediation/arbitration and all the other dispute resolution Furthermore, the posts mention that the options. service provider states his/her opinion of how the judge would likely rule in a 2. There is an abuse of practice of law and particular case. This seems to me to be forcing participants into agreements that unauthorized practice of law. As a handy may not be in their best interest (I wonder well written reference on mediation and the how many are represented by attorneys unauthorized practice of law you, may refer Continued on next page Summer 2005 • Vol. 4 No. 3
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when in this process). 3. Participants are not properly informed in writing just prior to starting the meeting as to the nature of the process and all their options, rights, legal exposure and obligations. 4. The court brochure lumps this process in with ADR further confusing the public who is just barely coming to learn about mediation. 5. I see no justification for this process being used instead of mediation or full blown arbitration. This process seems to remove important protection to the parties in the guise of a simple conversation with the support of some neutral caring individual (in a quasi judicial process). The private room instead of open court creates the impression of confidentiality when in fact it can all be reported to the judge and have a major impact upon the case. 6. It is not clear what the parameters are for the recommendations to the judge. In other words do they report character or just focus on their parenting time recommendations without judging the individuals. Do they provide reasons and justifications for their recommendations? What other facts are able to be brought forth in the case after such a process? 7. What are the qualifications and training for these officers? I know that even with my 500+ hours of related training I am not particularly qualified to offer a meaningful recommendation to the court (I certainly could have a valued educated opinion but
that does not make it much more meaningful than any one else’s, nor am I in the position to make recommendations in the context of case law). 8. Do these officers have psychiatric training or domestic violence training or are they former judges?
End notes 1.www.mass.gov/courts/courtsandjudges/c ourts/probateandfamilycourt/selfhelp.html 2.www.mass.gov/courts/courtsandjudges/c ourts/supremejudicialcourt/ccadr0601large .pdf
Floyd Borakov is President & CEO of Rocky Mountain Mediation in Colorado. He was trained in Franklin County, Massachusetts in 1992, and his main practice area is in family mediation. Floyd can be contacted at (303) 910-6964, contact@rockymountainmediation.com, or at www.rockymountainmediation.com
9. Are these officers practicing attorneys or trained in legal matters? I know they have attended court process training (that Is no different than my formal court training). 10. Do these officers state to the participants that they can not offer legal advice or case evaluative opinions? Is this written in documents that the participants review prior to commencement?
"Discourage litigation" Abraham Lincoln
11. I assume that this process in general is legal but in my opinion it is highly unethical and how it is implemented in the field illegal. Land of Lincoln...continued from page 14
12. I believe this process as described and even more so as implemented violates the tenets of ADR as described in the court brochure on ADR linked above. 13. I believe this process fails to advance the development of a creative agreement because it takes away the confidentiality and provides power to the court officer. These two elements are powerful leverage points in any mediation as you know, providing safety, comfort and neutrality assurances to the participants involved. If you have any further question in this matter please do not hesitate to contact me.
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line: if you’re a lawyer you can write legal agreements as a lawyer or as a mediator. If you’re not a lawyer and you try to write something that people will sign, especially if they do not have it reviewed by a lawyer before signing it, you pose two risks: (1) jeopardizing your own credibility as a mediator and 2) hurting the profession. My dismay about Illinois is that their ethics committee seems to trample the whole concept of a bright line and may just ban Illinois lawyers from performing a very efficient, consumer demanded service of writing their agreement as neutrally as possible. So they go back to resolving their disputes in another Illinois fashion:
“Where is Fedora, the wild virago? I’m glad I missed her gangster sister from Chicago” From”Where is the Life that Late I Led,” Kiss Me Kate. It’s all fascinating and we’re all part of an important encouraging journey. John A. Fiske is a founding member, past president and director emeritus of MCFM. He is also a partner at Healy, Fiske, Woodbury & Richmond, a Cambridge firm concentrating in family law and mediation. John can be contacted at (617) 354-7133, or at jadamsfiske@yahoo.com
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LESSONS FOR MEDIATORS FROM MALCOLM GLADWELL’S “BLINK” A Book Review by By Debra L. Smith Can mediators learn from the best selling book “Blink”? Is it true that good mediators just know, as we watch facial expressions and listen to what couples say? Thin-slicing According to Gladwell, “Thin-slicing” refers to the ability of our unconscious to find patterns in situations and behavior based on very narrow slices of experience.” He calls it “rapid cognition.” Thin-slicing happens instantaneously outside of our conscious awareness. It distills years of experience into a split-second reaction that seems uncannily accurate. As an example of thin-slicing in “Blink,” Gladwell discusses John Gottman, a psychologist from the University of Washington, who has brought in over 3,000 married couples into his “love lab” near the university to evaluate them as to whether they would still be together in 15 years. Gottman observed a videotape of a couple for emotional responses, gave a number to twenty separate categories for emotions, such as contempt, anger, defensiveness, disgust and so on and used equations. Gottman claimed he could analyze a couple talking for an hour and predict with 95% accuracy whether the couple will be married 15 years later and with 90% accuracy if he observed a couple for 15 minutes.
Gladwell states that Gottman looked at “Four Horseman: defensiveness, stonewalling, criticism and contempt,” with contempt as the worst. Gladwell states that “when our unconscious engages in thin-slicing, what we are doing is an automated, accelerated unconscious version of what Gottman does with his videotapes and equations.” Nonverbal Cues When we as divorce mediators fail to pay attention and observe the couple, we may miss something. A great analogy that Gladwell uses in “Blink” is when he discusses autism. Gladwell states: people with autism “have difficulty interpreting nonverbal cues, such as gestures and facial expressions or putting themselves inside someone else’s head or drawing understanding from anything other than the literal meaning of words. Their firstimpression apparatus is fundamentally disabled, and the way that people with autism see the world gives us a very good sense of what happens when our mind-reading faculties fail.” As mediators we have to watch the couple’s nonverbal cues as it may help us in our task in assisting them in obtaining a resolution. Being Careful of our Prejudices and One chapter in “Blink” Biases focuses on “The Warren Harding
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Error.” Warren Harding served two years as a Republican President of the United States beginning in 1920. He opined that people vote for good looking candidates. The public voted for Harding as he looked presidential. Gladwell described Harding as handsome, but not “a particularly intelligent man. He liked to play poker and golf and to drink and, most of all to chase women...” He states that Harding “was, most historians agree, one of the worst presidents in American history.”
there were few women in the orchestra and none playing the trombone. Since she was a woman, she had difficulty in getting hired with the same pay as the men due to the gender prejudices at the time. Gladwell’s second lesson in “Blink” is that we do have control of our unconscious “if we can take control the environment in which rapid cognition takes place, then we can control rapid cognition.” Conclusion Gladwell does provide lessons for all of us, especially
According to “Thin-slicing” refers to the ability of Gladwell, a our unconscious to find patterns in dark side of thin slicing is situations and behavior based on very if we let our narrow slices of experience. prejudices and discrimination lead us astray. He mediators. We should be aware of our states: “Our first impressions are reactions due to our rapid cognition. generated by our experiences and our We should watch facial expressions of environment, which means that we can the couple that we are mediating. change our first impressions-by Mediators should be conscious of their changing the experiences that prejudices and not let it affect our compromise those impressions.” mediation. “Blink” is a helpful book Gladwell suggests that we take “active on making us aware that we should steps to manage and control those listening with our eyes and ears. impressions.” In the chapter on “Conclusion Listening with Your Eyes: The Lessons of Blink,” Gladwell describes a woman professional musician, who auditioned behind a screen by playing trombone for the Munich Philharmonic Orchestra in 1980. She played extremely well. At that time
Debra L. Smith, Esq. practices family law and mediation in Watertown. She is a MCFM Director and currently serves as Educational Program Chair. Deb can be reached at Lawdeb@aol.com, or at her web site: www.lawdebsmith.com.
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MCFM INVITES YOU TO ITS 4TH ANNUAL FAMILY MEDIATION INSTITUTE
COLLEGE EDUCATION: PRACTICE TIPS Amy Lyn Blake, Esq.
OCTOBER 21, 2005 8:30 – 5:00 PM Wellesley Community Center
THE ROLE & USES OF DIVORCE COACHING IN MEDIATION Sanford Portnoy, Ph.D.
Introduction WHY MEDIATED AGREEMENTS GET REJECTED Hon. Eileen M. Shaevel, (Ret.)
Keynote Speaker
RECENT DEVELOPMENTS IN FAMILY LAW Fern L. Frolin, Esq. THE CONUNDRUM OF THE “SECOND SHIFT” When the Primary Caretaker is the Primary Breadwinner
Michael L. Leshin, Esq. WHAT PROMOTES RESILIENCE IN CHILDREN & FAMILIES OF DIVORCE Jane Appell, Ph.D. & Robert A. Zibbell, Ph.D.
KENNETH CLOKE, J.D., Ph.D. INTO THE HEART OF CONFLICT Techniques For Family Mediators Come learn how to elicit openhearted communications between people who don’t trust or like each other, how to get divorcing couples to speak vulnerably from a place of separation and how to move the conversation in a more profound direction.
REGISTER EARLY - MAXIMUM ATTENDANCE 90! written materials & sumptuous buffet lunch included Early registration: received before September 15th MCFM MEMBERS $140, $175 non-MCFM members
CHOOSE TWO OF THE SIX AFTERNOON SEMINARS & WORKSHOPS
Late registration: received after September 15th MCFM MEMBERS $160, $195 non-MCFM members
MEDIATION TECHNIQUES FOR WORKING WITH HIGHLY CONTESTED CUSTODY CASES Kenneth Cloke, Esq., Ph.D. & John A. Fiske, Esq.
MAIL CHECKS PAYABLE TO MCFM 23 Parker Road, Needham Heights, MA 02494-2001
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Summer 2005 • Vol. 4 No. 3
limited scholarship assistance is available on written request
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WHAT'S NEWS? Compiled By Les Wallerstein Same-sex Marriage Demographics May 17, 2005 marks the anniversary of the landmark legalization of same-sex marriage in Massachusetts. Close to 5,400 couples have married since then, representing nearly a third of all the same-sex partner households in the state, and almost two-thirds of the couples have been women. Boston was one of the few places where male marriages outnumbered female marriages.... The predominance of female marriages is not unique to Massachusetts. More women than men married in San Francisco when the mayor permitted 4,000 same-sex marriages to be performed... as well as in British Columbia, where same-sex marriage has been legal since 2003. (Ginia Bellafante, NY Times, May 8, 2005) Connecticut Approves Same-sex Civil Unions As of October 1, 2005, Connecticut will become the second state to offer civil unions to gay and lesbian couples—and the first to do so without being compelled by the courts. Last summer, seven same-sex couples sued in Connecticut after being denied marriage licenses, and that case has not been resolved. (Lawyers Weekly USA, May 9, 2005) Judge Voids Same-sex Marriage Ban in Nebraska A federal judge struck down Nebraska’s ban on same sex marriage, saying the measure interfered not only with the rights of gay couples, but also with those of foster parents, adopted children and people in a variety of other living arrangements. The amendment to the state’s Constitution, which defined marriage as a union between a man and a woman, was passed overwhelmingly by the voters in November, 2000. The Nebraska ruling is the first in which a federal court has struck down a state ban on same-sex marriage. (AP, NY Times, May 13, 2005) California Partners Law Upheld In a unanimous decision, the State Supreme Court let stand a new law granting registered domestic partners many of the same rights and protections available to married couples. (AP, NY Times, June 30, 2005)
Worcester P&F Court to Take Space in Middlesex Beginning on August 1st, Worcester County Probate & Family Court matters will be heard at the Marlborough District Court, pending the completion of the new Worcester County Courthouse. Judges will preside in Marlborough on a rotating basis. For more information call Robert E. Terk, first assistant register, at (508) 770-0825 X 207. (Massachusetts Lawyers Weekly, July 4, 2005) Troops Must Name Caretaker for Their Remains After two sets of divorced parents disagreed over where their sons who were killed in Iraq should be buried, the military will begin requiring service members to designate someone to handle their remains. The defense Department is modifying its forms to allow soldiers the final say. (AP, NY Times, July 8, 2005) Gay Marriage is Extended Nationwide in Canada Canada legalized gay marriage, becoming the world’s fourth nation to grant full legal rights to samesex couples. The Netherlands, Belgium and Spain are the other nations that allow gay marriage. (AP, NY Times, July 21, 2005)
"For what is wedlock forced, but a hell, An age of discord and continual strife? Whereas the contrary bringeth bliss, And is a pattern of celestial peace." William Shakespeare, King Henry VI
Spain Legalizes Gay Marriage The Spanish parliament voted to legalize gay marriage, giving final approval to a bill that would make Spain the first nation to eliminate all legal distinctions between same-sex and heterosexual unions.... The Spanish bill merely adds one sentence to existing law: “Marriage will have the same requirements and results when the two people entering into the contract are of the same sex or different sexes.” (Renwick McLean, NY Times, July 1, 2005)
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DIRECTORY OF RELATED PROFESSIONALS An Idea Whose Time Has Come By Mary T. Johnston The MCFM Board plans to produce a directory of recommended professionals in fields related to divorce mediation. These professionals will be recommended by MCFM members based on their direct or professional experience. This directory, to be published by MCFM, will be made available to MCFM members as a separate, small brochure or publication. The directory is intended as a service to MCFM members, designed to facilitate the location of allied professionals committed to helping individuals and families in transition without resorting to adversarial interventions. The Board hopes to include professionals knowledgeable about and sensitive to the divorce process. For the initial Related Professionals Directory (RPD), a letter will be sent soon to MCFM members explaining the RPD plan and requesting recommendations. The MCFM Board hopes MCFM members will begin thinking about individuals in allied professions to be included. All professionals recommended will be contacted regarding listing information, affidavits of licensure and good standing, and willingness to be listed. The Related Professionals Directory (RPD) will be updated regularly, annually if possible. PROFESSIONS TO BE INCLUDED Related professionals to be listed would include social workers, psychologists, psychotherapists, psychiatrists, marriage counselors, parenting specialists, child development specialists, accountants, fee-only financial planners, fee-only investment specialists, appraisers, actuaries, pension specialists, QDRO specialists, attorneys and estate planners. LISTING REQUIREMENTS Licensed in profession of specialty, Member of profession in good standing, Each individual listed must have at least a Bachelor’s Degree, and Each individual to be included to have written recommendation by at least two MCFM members. Mary T. Johnston is a family lawyer and mediator who practices in Wellesley. She is a past president of MCFM, and can be contacted at (781) 431-8552, or at maryt.johnston@erols.com.
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EDITORIAL: Common Knowledge Like everyone, divorce mediators make assumptions that aren’t always true. Some effect our client interactions while others find their way into the language of the agreements we draft. For example, it is common knowledge that since divorce entails the loss of a future relationship, grief is an inherent part of the process. While that may often be true, it isn’t always. In my practice its actually rare for both spouses to decide “its over” at the same time. Its much more common for one spouse to reach that decision first. The spouse looking to end the relationship usually experiences relief, sometimes bordering on joy. The more positive the anticipation of a future unencumbered by “my-soon-to-be-ex,” the more common the sense of liberation. Naturally, this tends to exacerbate the grief of the rejected spouse. Although exceptional, sometimes both spouses really do agree that their marriage has run its course. When that happens grief is nowhere on the horizon. Each looks forward to life with the other as friends apart, not intimate enemies. Thus the role of grief always varies.
The more positive the
In general we try to insure anticipation of a future that payments for big ticket unencumbered by “my-soonitems (like college and uninsured medical to-be-ex,” the more common expenses) are fair. It is the sense of liberation. common to draft agreements saying that each party will contribute to such expenses “in proportion to his and her income.” This works well with two working parents, but what happens when one spouse is the breadwinner while the other has no income beyond alimony? In the case of my clients, the homemaker wife was expecting to inherit significant assets (undeveloped land) that produce no income. Should the breadwinner be required to foot the entire bill while the homemaker is excused from contribution? And if the asset-rich, cash poor wife agrees to contribute a fixed percent (e.g. 50/50), how is she to raise the money? Recently I was upbraided during the review of a separation agreement I drafted. It included the following boilerplate: “Whenever reasonably possible the children will spend each father’s day with the husband, and each mother’s day with the wife.” Mom took umbrage at my bland assumption. She explained that in their family it was traditional for mother’s day to be a celebration of mom being free of the kids. She was in no mood to contemplate the loss of “MY time just for me!” Continued on next page
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28 It is common knowledge that all people are different — a truism to say that each couple in mediation is unique. Despite general similarities, we should routinely expect exceptions to the general rules. Only by anticipating the special circumstances of our clients will we find validity for our general assumptions. In short, we all need to temper our common knowledge by asking questions, and letting the answers guide our work. The opinions expressed in this editorial are those of Les Wallerstein. He can be contacted at (781) 862-1099, or at <wallerstein@socialaw.com>
Editor’s note: The spring 2005 FMQ editorial, “A Deafening Silence,” criticized the omission of mediation from a major MCLC sponsored advertising campaign. It prompted three emails, excerpted below.
PUT YOUR THOUGHTS
WRITE ON!
INTO PRINT
June 14, 2005 Letter to the Editor:
email the editor: wallerstein@socialaw.com
The relationship between mediation, litigation, and collaborative law and practice, has been the subject of much discussion amongst lawyers, mediators, and other allied professionals. I agree with everything the editor says about the benefits of mediation, and agree with Chip Rose in recognizing, honoring, and celebrating the past, current, and future close relationship between collaborative practice and mediation. I believe in mediation, and I acknowledge and accept that there are many similarities to mediation in collaborative practice. Chip Rose, for example, has done two trainings for MCLC here in Boston and MCFM
FMQ members have been invited to both. But with all their similarities, mediation and collaborative practice are different. To say this is not to demean or dishonor either; it is to recognize and celebrate both, and the differences between them. Different does not have to mean better or worse. The public education materials developed by the IACP and purchased and distributed by many collaborative practice groups are meant to promote
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collaborative practice. The MCFM brochures regarding mediation do not mention collaborative law practice. This does not mean either method of dispute resolution is promoting itself as the “only” or “best” form of dispute resolution; rather, the materials of such groups endorse what they are respectively promoting, and in this case MCFM is promoting mediation and the IACP materials are promoting collaborative practice. Many mediators belong to MCLC and the IACP. Many of us who helped develop the public education materials are also mediators. Mediation is included, to varying degrees, in collaborative practice around North America. It is also a significant tool. No collaborative practitioner I know disputes this. And, just as there are many mediation models, so are there many collaborative practice models. Just as with mediation, collaborative practice uses allied professionals in different ways. It tends to be more formal in some collaborative models than mediation, as explained in the public education materials. We are simply trying to educate the public and practitioners about these different approaches. The MCFM also developed a new brochure last year. Nowhere does it mention collaborative practice as another approach. Nor should it necessarily do so. The failure to mention collaborative practice in a brochure promoting mediation (or mediation in a brochure promoting
collaborative practice) clearly does not mean failure to recognize the value of dispute resolution mechanisms that provide alternatives to litigation for clients. It is simply a matter of focusing, for purposes of the public education brochure, on promotion. Chevys and Fords both get you where you need to go. They each have various attributes that appeal to different users. Having options makes it more likely that a consumer will find the right fit. In an area so much more important, the quality of our lives and those of our children, shouldn’t consumers be encouraged to find the right fit? MCFM, MCLC, and similar groups should support one another by opening a positive dialogue to discuss how mediation and collaborative practice can complement each other and how we can promote both to our clients responsibly, supportively, and productively. Lynda J. Robbins, Esq. Lynda is a founding member and past president of MCLC, and a longstanding member and current director of MCFM.
June 29, 2005 Letter to the Editor: Collaborative practice does not pretend “to offer an alternative to a litigated divorce,” it really does offer the client a choice, an alternative to litigation or
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MCFM NEWS even the traditional negotiated divorce. Neither mediation nor collaborative practice purports to be “the” only answer, as Les suggests. In fact the MCFM brochure states “Promoting Mediation as a Better Method of Resolving Family Disputes.” Does that mean that MCFM, or the world- wide mediation community is holding itself out as Better without mentioning other dispute resolution options, like collaborative practice? The IACP public education materials, were designed by a paid professionals, working in conjunction with a carefully selected group of volunteers from the United States and Canada, representing lawyers, financial specialists and mental health professionals, many of whom are mediators. The purpose of the public education materials is to educate the consumer about the elements of collaborative practice. The purpose of the brochures is to compare collaborative practice with a litigated divorce. If the goal of the marketing materials and education campaign was to dishonor mediation, the substance of the brochures would compare collaborative practice to mediation by explicitly trying to persuade the client that collaborative practice has supplanted mediation. That is clearly not the goal or focus of the IACP public education campaign. To briefly address the substance of Les’ remarks, I want to point out that while mediators (not mediation) may have
made referrals to allied professionals on an “as needed basis,” there is no comprehensive training that I am aware of which specifically invites and includes allied professionals. By the way, litigators also use and refer their clients to financial experts, therapists, child evaluators, parent coordinators etc. I have had more than one collaborative client who has come to me to finish up their work, after they had been in mediation. That is not a failure of the mediation process. The intersection between mediation and collaborative practice seem obvious to me, in only positive ways. If I needed to bring in a mediator to help break an impasse, I would not hesitate to do so. Colleagues and I have discussed that very option when things get tough in our cases. Finally, it seems to me that if one wants to point out concerns, while creating an opportunity for constructive dialog, one doesn’t frame the issue using provocative language, like “...it renders mediation unrecognized, uncelebrated and dishonored.” How much more collaborative it would be to identify the concerns and then extend an invitation to talk.
Rita S. Pollak, Esq. Rita is a founding member and past president of MCLC. Continued on page 33
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2005 ANNUAL ELECTIONS THE DIRECTORS BELOW WERE RE-ELECTED FOR TWO YEAR TERMS Lynn K. Cooper, Michael L. Leshin, Harry E. Manasewich, Steven Nisenbaum & Lynda J. Robbins
AND... Vicki Shemin was elected as a new director for a two year term.
Congratulations to All ! POT LUCK SUPPER All MCFM members & significant others welcome! Saturday, September 18th, 4 PM - 7 PM 262 Kenrick Street, Newton, Massachusetts 1st letter of last name - please bring: A - F: Appetizers; G - R Main Dishes; S - Z: Desserts MCFM will provide all libations Questions & Directions: (781) 449-4430
NEXT MEMBERS MEETING September 22, 2005 2-4 PM Concord Court House THE URGE TO MERGE vs. THE DRIVE TO SURVIVE Presented by Howard I. Goldstein, Esq. Even the most experienced practitioners can get confused about incorporation, merger and survival of divorce agreements. This talk will review the case law and the practical implications of these concepts, so you can explain what they mean, figure out when is it a good idea to survive or merge an agreement, and be sure that you draft understandable provisions that will be approved by a judge. Bring your questions! always
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ANNOUNCEMENTS NEXT EXECUTIVE COMMITTEE & BOARD OF DIRECTORS MEETING September 19, 2005 5 PM: Executive Committee 6 PM: Directors
In the Office of Debra L. Smith 134 Main Street, Watertown, MA 02472 Phone: (617) 924-6728 Email: lawdeb@aol.com Directions to Deb’s office are available online at
www.lawdebsmith.com
SIX-DAY BASIC MEDIATION TRAINING Sept. 24 & 29, Oct. 6, 20 & 27, Nov. 5, 2005 Presented by The Mediation & Training Collaborative (TMTC) Greenfield, Massachusetts This 34-hour interactive, practice-based training is open to anyone who wishes to increase his or her ability to help others deal with conflict, whether through formal mediation or informal third-party intervention processes in other professional settings. TMTC is a court-approved mediation program, and this training meets SJC Rule 8 and Guidelines training requirements for those who wish to become courtqualified mediators. For more details or brochure, contact Cheryl Fox <cfox@fcac.net> or Susan Hackney <shackney@fcac.net>, or call 413-774-7469.
PLEASE EMAIL ANY AGENDA ITEMS FOR CONSIDERATION TO:
President Laurie Udell at lsudellesq@aol.com, or to any officer, all of whom are listed in the DIRECTORATE on page 35.
FIVE-DAY COMPREHENSIVE MEDIATION TRAINING
MEDIATION PEER GROUP MEETINGS
DMTA’s 40 hour divorce mediating training program is presented by John A. Fiske, Diane Neumann and Philip D. Woodbury — all past presidents of MCFM. This course includes luncheons and extensive written materials. For more information and to reserve a place please call 617-354-7113, or visit our web site, www.dmtatraining.com.
Merrimack Valley Mediators Group: We are a group of family law mediators who have been meeting (almost) monthly since before the turn of the century! The criterion for membership is a desire to learn and share. Meetings are held at 8:15 AM on the last Tuesday of the month from January to June, and from September to November, at the office of Lynda Robbins, 11 Summer Street, Chelmsford. Please call Lynda at (978) 256-8178 or Karen Levitt at (978)4585550 for information and directions. All MCFM members are welcome.
October 13, 14, 15, 28 & 29, 2005 Wellesley College Club Offered by Divorce Mediation Training Associates
COMMUNITY DISPUTE SETTLEMENT CENTER Building Bridges • People to People • Face to Face 60 Gore Street Cambridge, MA 02141
Metro-West Mediators Group: The Metro-West group (usually) meets on the second Friday of the month at the home of S. Tracy Fischer, located at 120 Cynthia Road, in Newton. Monthly meetings begin at 9:15 AM and are open to all MCFM members. Please call (617) 964-4742 or email <tracyfischer@rcn.com> for confirmed dates and directions.
Established in 1979, the CDSC is a private, not-for-profit mediation service dedicated to providing an alternative and affordable forum for resolving conflict. CDSC also provides training programs in mediation and conflict management to individuals and organizations. For more information please contact us by phone: 617-876-5376, by email: cdscinfo@communitydispute.org, or at our web site: www.communitydispute.org.
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JOIN US MASSACHUSETTS COLLABORATIVE LAW COUNCIL, INC. The MCLC offers legal representation to people in conflicts who share a commitment to resolving disputes without litigation. To find out more, or to locate a collaborative lawyer near you, visit MCLC on-line at www.massclc.org.
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July 15, 2005 Letter to the Editor: Collaborative practice and some of the recent marketing materials made available to collaborative practitioners were negatively portrayed in a way that “pits” mediators against collaborative practitioners. Not only is this totally unnecessary, but it does a disservice to mediators and collaborative practitioners, who are providing varied and important services to a public with complex and differing needs in resolving their family conflicts. This editorial does nothing positive to serve the public, mediators, or collaborative practitioners, but rather tries to widen the divide instead of promoting communication. The use of marketing materials by MCFM and MCLC is just that; mediators market mediation, collaborative practitioners’ market collaborative practice. Regardless of how one feels about the differences between the two forms of dispute resolution, the answer is not to point to one or the other as either better or worse. After all, both can co-exist and both may even benefit from each other. In a world filled with conflict, why is there not room for collaborative practice? Lawyers had to make room for mediators; mediators need to make room for collaborative practitioners; and collaborative practitioners will have to make room for the next generation of alternative dispute resolution practices and practitioners, whatever and whoever they may be. Karen J. Levitt, Esq. Karen is a founding member of MCLC, and a longstanding member of MCFM.
MCFM membership is open to all practitioners and friends of family mediation. MCFM invites guest speakers to present topics of interest at four, free, member education meetings annually. Educational meetings often satisfy certification requirements. Members are encouraged to bring guests at no cost. MCFM members also receive the Family Mediation Quarterly and are welcome to participate on any MCFM Committee. All members are listed on-line at MCFM’s web site, and all listings may be “linked” to a member’s email and web site. Annual membership dues are $90. Please direct all membership inquiries to DeLaurice Fraylick at masscouncil@mcfm.org. REFFERAL DIRECTORY: Every MCFM member is eligible to be listed in the MCFM Referral Directory. Each listing in the Referral Directory allows a member to share detailed information explaining her/his mediation practice and philosophy with prospective clients. The Referral Directory is printed and mailed to all Massachusetts judges, and to each listed member. The referral directory is also available on-line at the MCFM web site. MCFM was the first organization to issue Practice Standards for mediators in Massachusetts. To be listed in the MCFM Referral Directory each member must agree to uphold the MCFM Standards of Practice. Copies of the MCFM Standards of Practice are available on-line at the MCFM web site. The annual Referral Directory fee is $60. Please direct all referral directory inquiries to Jerry Weinstein at JWeinsteinDivorce@comcast.net. CERTIFICATION: MCFM was the first organization to certify family mediators in Massachusetts. Certification is reserved for mediators with significant mediation experience, advanced training and education. Extensive mediation experience may be substituted for an advanced academic degree. A copy of the MCFM certification requirements is available on-line at the MCFM web site. Every MCFM certified mediator is designated as such in both the electronic and the printed Referral Directory. Only certified mediators are eligible to provide mediation services to the Massachusetts Probate & Family Court through MCFM. Certification must be renewed every two years. Certification applications cost $100, and re-certification applications cost $50. Certification and re-certification applications are available on request from Lynn Cooper at lynnkcooper@aol.com. MCFM’s web site: www.mcfm.org
Family Mediation Quarterly
Summer 2005 • Vol. 4 No. 3
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EDITORâ&#x20AC;&#x2122;S NOTICE
DIRECTORATE MASSACHUSETTS COUNCIL ON FAMILY MEDIATION, INC. 23 Parker Road, Needham Heights, MA 02494-2001 Local Telephone & Fax: (781) 449-4430 masscouncil@mcfm.org www.mcfm.org
TOLL FREE: 1-877-777-4430
MCFM
Family Mediation Quarterly Les Wallerstein, Editor 1620 Massachusetts Avenue Lexington, MA 02420-3802 (781) 862-1099
wallerstein@socialaw.com OFFICERS President
Laurie S. Udell, 399 Chestnut Street, Needham, MA 02492-2426, (781) 449-3355, lsudellesq@aol.com
The FMQ is dedicated to family mediators working with traditional and non-traditional families. All family mediators share common interests and concerns. The FMQ will provide a forum to explore that common ground.
Vice-President
Kathleen A. Townsend, Divorce Mediation Group, Inc., 1441 Main Street, Springfield, MA 01103, (413) 733-4444, kathleen@divmedgroup.com
The FMQ intends to be a journal of practical use to family mediators. As mediation is designed to resolve conflicts, the FMQ will not shy away from controversy. The FMQ welcomes the broadest spectrum of diverse opinions that effect the practice of family mediation.
Vice-President
Marion Lee Wasserman, 199 Wells Avenue, Suite 201, Newton, MA 02459(781) 449-4815, mlw@reachaccord.com
The contents of the FMQ are published at the discretion of the editor, in consultation with the MCFM Board of Directors. The FMQ does not necessarily express the views of the MCFM unless specifically stated.
Secretary
Jonathan E. Fields, Fields & Dennis, LLP, 20 Pickering Street, Needham, MA 02492, (781) 433-0330, jfields@fieldsdennis.com
Treasurer
Mark I. Zarrow, Lian, Zarrow, Eynon & Shea, 34 Mechanic Street, Worcester, MA 01608, (508) 799-4461, mzarrow@lzes.com
DIRECTORS
Lynn K. Cooper, Robert V. Deiana, Howard I. Goldstein, Mary T. Johnston, Michael L. Leshin, Harry E. Manasewich, Steven Nisenbaum, Lynda J. Robbins, Patricia A. Shea, Vicki L. Shemin, Debra L. Smith & Les Wallerstein
DIRECTORS EMERITUS
John A. Fiske, Janet B. Weinberger, Jerome Weinstein & Barbara N. White
ADMINISTRATOR DeLaurice Fraylick, 23 Parker Road, Needham Heights, MA 02494-2001, (781) 449-4430, masscouncil@mcfm.org
Family Mediation Quarterly
The FMQ is mailed to all MCFM members. Copies are provided to all Probate & Family Court Judges, all local Dispute Resolution Coordinators, all Family Service Officers and all law school libraries in Massachusetts. An archive of all previous editions of the FMQ are available on-line in PDF at <www.mcfm.org>, accompanied by a cumulative index of articles to facilitate data retrieval. MCFM members may submit notices of mediation-related events for free publication. Complimentary publication of notices from mediation-related organizations is available on a reciprocal basis. Commercial advertising is also available. Please submit all contributions for the FMQ to the editor, either by email or computer disk. Submissions may be edited for clarity and length, and must scrupulously safeguard client confidentiality. The following deadlines for all submissions will be observed: Summer- July 15th Fall- October 15th Winter-January 15th Spring- April 15th All MCFM members and friends of family mediation are encouraged to contribute to the FMQ. Every mediator has stories to tell and skills to teach. Please share yours.
Summer 2005 â&#x20AC;˘ Vol. 4 No. 3