Family Mediation Quarterly
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FAMILY MEDIATION QUARTERLY Vol. 5 No. 3
Summer 2006
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: Lynda J. Robbins I am honored to be the new President of the Massachusetts Council on Family Mediation. I am humbled to follow a long list of distinguished past presidents. As I anticipate the next two years, I look forward to both the joys and challenges of leading such a diverse and talented membership. As this goes to press, I am preparing for the ACR Family Section Mid-Year Conference on Cape Cod. MCFM is co-sponsoring this conference. Affiliating with other dispute resolution organizations is one way we can enhance our member services. Our Fall Institute and quarterly members meetings present interesting and informative speakers and are invaluable networking (or as John Fiske likes to say, “schmoozing”) opportunities. Jerry’s List is our way of helping mediators find the outside resources to assist both members and their clients. Our new website with “members only” features, mediator locator and public education material is another way. Our referral directory is a valuable marketing resource the Council has provided for members in addition to speakers on marketing and an informative brochure available for purchase by members for distribution to clients and referral sources. Establishing standards, certification criteria and the annual John Fiske Award for Excellence in Mediation helps maintain our profession in our own eyes and those of the public. And, of course, the Family Mediation Quarterly, a premier journal focused on family mediation and mediators, is distributed to members, judges, court personnel and others interested in mediation in Massachusetts and reaches across the continent and around the world via our website. But, with all MCFM is and does, I am sure there are more ways we can serve our members. Please contact me in person or via telephone or e-mail to share your thoughts and ideas. None of this would be possible without the dedicated Board of Directors and, most certainly, our wonderful administrator, Dee Fraylick. Nevertheless, we want all members to take an active role in the Council. Please write an article for the FMQ, share your expertise at a members meeting or serve on a committee. This is a volunteer organization and we are only as strong as our membership. I look forward to working with all of you as we continue to grow and develop as a Council and as mediators.
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EDITOR’S NOTICE MCFM
Family Mediation Quarterly Les Wallerstein, Editor 1620 Massachusetts Avenue Lexington, MA 02420-3802 (781) 862-1099
wallerstein@socialaw.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. 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. The contents of the FMQ are published at the discretion of the editor, in consultation with the MCFM Board of Directors. The FMQ does not necessarily express the views of the MCFM unless specifically stated. The FMQ is mailed to all MCFM members. Copies are provided to all Probate & Family Court Judges, 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 2006 â&#x20AC;˘ Vol. 5 No. 3
CONTENTS 1
CONFLICT TRANSFORMATION FOR SEPARATING COUPLES By Louise Phipps Senft
5
THE MEDIATOR’S TOOL KIT: Transference and Countertransference, Part I By Steve Nisenbaum & Rina Folman
10
STANDING IN THOSE BIG SHOES: What We Can Learn From Each Other About Marriage By Laurie Israel
17
BUILDING COMMUNITY: SUSTAINING ADR IN THE COURTS A Conference Report By Christine W. Yurgelun
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COURT CONNECTED ADR: A New Start By Mark I. Zarrow
23
THE PERILS OF IMPETUOSITY By Les Wallerstein
25
UPDATE REGARDING JERRY’S LIST: MCFM’s Related Professionals Directory By Mary T. Johnston
26 What’s News? 29 MCFM News 33 Announcements
34 Join Us 35 Directorate 36 Editor’s Notice
MCFM © 2006 All Rights Reserved
Summer 2006 • Vol. 5 No. 3
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CONFLICT TRANSFORMATION FOR SEPARATING COUPLES By Louise Phipps Senft People do not marry to get divorced. When divorce happens, the experience is one of the most complex and profoundly disturbing events of one’s life. The possibility of emerging better and stronger is a remote reality for most. For those who have even a glimmer of a better future, such possibility is often obscured, lost or forgotten in the painful, and often ugly, divorce process.
very different ways by which a mediator can help people come to a fair agreement, this does not answer the question nor yet define the best kind of help mediators can offer divorcing couples.
To understand this further for myself, I have asked hundreds of separating couples who are entering the mediation process the questions, “What is the greatest barrier or concern you face? What gives you the Before mediators can help clients through greatest anxiety about this process? What this process, we must ask ourselves what troubles you most about the divorce kind of help do they need? Many mediators experience and being here in mediation? might say that divorcing couples need help How can I as your mediator be of greatest creating a Separation Agreement. Others assistance to you?” I have resoundingly may expand this and say they need help been told time and time again that the two with decisions about property distribution greatest barriers are, in this order: 1) the and custody arrangements, or parenting other person; and 2) a lack of knowing/ lack plans. Indeed, in asking hundreds of of control (usually relating to the other divorcing couples what matters most to person). And the most common response them about their separation or divorce as about what gives the parties the most they enter into a mediation process, they anxiety is a direct corollary to the above. usually say something about the desire to It’s the anticipated negative quality of the come to a fair agreement or to make fair interaction between the divorcing spouses, decisions, often couched in language about which is also expressed in many forms: “I need him/her to stop ...”; “I want Before mediators can help him/her to understand ...”; “I want to clients through this process, be able to speak”; “I want we must ask ourselves what information”; or “I want respect.”
kind of help do they need? not getting screwed by the other party or hoping that the other party will make fair decisions. Thus many mediators have come to believe, understandably, that the greatest kind of help they can offer to divorcing couples is help in coming to a fair agreement. However, because there are
Thus, it is possible, even probable to consider that the best help mediators can provide to divorcing parties is to help change the negative quality of their interaction to something that is more constructive. That’s it. Elegant. Simple. And it makes good sense. For despite the fact that the decision to divorce — made by
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one or both of the parties — is rarely other, and by encouraging them to believe entered into without months or years of that they have the capacity to do this, with consideration, most couples still come to or without other experts’ assistance. the mediation process with a great deal of Mediators can provide a process that frees confusion and uncertainty and a good dose people to play by their own rules, create of suspicion. Making room for and their own topic agendas, and discuss such highlighting opportunities for both parties topics with clarity and confidence rather to speak to each other as well as providing than fear and bluff. This is what parties the opportunity for each to be It is possible, even probable to consider responsive to the that the best help mediators can provide other, rather than reactive, re- to divorcing parties is to help change the stabilizes both negative quality of their interaction to parties. This then something that is more constructive. allows them each to regain that sense of control they were value and this is what can and does alleviate most concerned about, and to be the devastating experience of the divorce reconnected with themselves and the other process. person, even when they still hold different views or attitudes and may not agree with Mediators also can help by listening each other. When anxiety and fear are carefully for the areas where there is reduced, competence, confidence and uncertainty or confusion, and slowing the decisiveness usually emerge. process down so that both parties have the opportunity to clarify, ask questions and be Thus, a settlement approach could be responsive if they choose. Mediators can replaced with an approach that values and help by listening carefully for the times when supports mediators providing a forum for suspicion or hostility — such as digs, biting divorcing couples to better the quality of remarks, throw-away remarks — occur and their dialogue as they make decisions about slowing down the process to check-in with possible resolutions related to their divorce. the parties and inquire, genuinely, if the This type of an approach is a transformative quality of the interaction is satisfactory or approach, informed by the premise that helpful; it may be or it may not be. If it is, the conflict is a crisis in the interaction between mediator can get out of the way. If it is not, people which presents the opportunity to the mediator can provide the parties the rare change a negative quality of the opportunity to make genuine requests of the communication or negotiation. other, in the presence of a third party, about how each would like to be treated or spoken Mediators have the best chance of to. It’s a powerful moment that most alleviating some of the devastating divorcing couples, otherwise communicating experience of divorce by inviting divorcing unaided during the middle of a divorce, do couples to have a conversation with each Continued on next page Summer 2006 • Vol. 5 No. 3
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not often get the chance to experience.
interact more humanely and decently.
When one spouse is responsive, rather than reactive, to the other, the quality of the interaction shifts, even if in a small way. It feels better to the parties. Such shifts provide a foundation for greater strength of self and openness to the otherâ&#x20AC;&#x2122;s points of view. More often than not, these shifts pave the way for a higher level of quality decision making that more likely than not yields quality terms and genuine agreements.
If we believe that mediation offers an alternative to divorcing families, beyond mere settlement or evaluative conferences, then we as mediators can be of assistance and provide the true alternative when we understand and respect what the experience of going through a divorce means to divorcing couples. We will be most effective with our clients if we genuinely believe that people have the ability to have a conversation and provide the environment for them to do so. We can help parties clarify what they want to do by highlighting new information, common themes, and agreements, as well as by surfacing and sharpening differences to help divorcing spouses clarify what they want to do. Mediation from a transformative approach creates outcomes that are genuinely satisfactory to the divorcing clients because we have trusted them to make their own decisions about the structure of the process as well as the outcome (including the decision to get help or information from other experts, or not). As importantly, this approach also avoids potential mediator abuses, especially the exercise of excessive pressure or dual representation.
In the transformative framework, the mediator replaces the goal of getting the parties to agree with the goal of strengthening both parties in the quality of their interactions. Agreement is not the goal, but it is the likely byproduct when parties are able to interact, communicate, converse or negotiate more confidently and meaningfully. In using this model, I have experienced many couples agreeing to separate legally but not divorce, and still others, although much fewer, agreeing to enter couplesâ&#x20AC;&#x2122; counseling to work on their marriage. Stated in another way, a mediator does not lose sight of what the parties may want, if it is agreement or settlement or otherwise; however, the mediator does not
We must look to the different operational premises on which our family and divorce mediation programs and mediation practices are based, such as clearing court dockets more expeditiously or in a less costly way, or getting people to agree without litigation. Whatever the
Mediators can provide a process that frees people to play by their own rules, create their own topic agendas, and discuss such topics with clarity and confidence rather than fear and bluff. presume any of these outcomes. The mediator is guided by what conflicting human beings express is the deeper need: to
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has a grand opportunity to value and thus integrate transformative premises and interventions into his or her mediation program and practice. Why? Because these transformative premises are what divorcing couples value most.
In the transformative framework, the mediator replaces the goal of getting the parties to agree with the goal of strengthening both parties in the quality of their interactions. premises are, they not only inform the reasons for various mediator interventions, but they also justify them. Some, albeit not all, of these underlying premises most probably include reasons that, while not inherently bad, actually perpetuate rather than alleviate human conflict and suffering; and while not intentional, these premises actually thwart clear decision making and genuine agreement. We are at a time and place in our understanding of the mediation process when the family and divorce mediator, or mediation program manager, regardless of venue — court or private —
Louise Phipps Senft is an Adjunct Professor of Law at the University of Maryland School of Law with over twenty years of mediation training and experience. She was voted “Baltimore’s Best” Mediator by the Daily Record, and is owner of the Baltimore Mediation Center for Divorce And Family Business Conflicts. Louise can be contacted at 443-524-0833, or at her web site www.BaltimoreMediation.com
“The value of an idea lies in the using of it.” Thomas A. Edison
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THE MEDIATOR’S TOOL KIT: Transference and Countertransference: Part I By Steve Nisenbaum and Rina Folman Editor’s Note: Like all professions, psychology has created a technical jargon to describe events and processes discovered in the course of its work. While there may be some general agreement about what key terms mean, there are often serious disputes about their significance and utility. In Part I the authors will focus on transference. Part II will address countertransference. The word transference was first coined by Sigmund Freud over a century ago, while he was creating a new therapeutic intervention known as psychoanalysis. A major part of the psychoanalytic work was to help the patient become conscious of his/her unconscious life. In the course of developing psychoanalysis, Freud discovered that many of his patients ascribed feelings and thoughts to him that seemed unfounded. Freud came to believe these were unconscious projections of his patients’ infantile experiences.
comprise an underlying part of our adult personality, regardless of our awareness of them. The direction of the transference is always toward the therapist. Thus the patient imbues the therapist with unconscious, internalized feelings (positive or negative, or both), based on the sum of historically experienced interactions with parental figures during early formative years.
Psychodynamic psychotherapies are those substantially grounded in a theoretical framework derived from classical Freudian psychoanalysis. Psychoanalysis is a treatment approach premised on human nature and behavior understood as the product of a “dynamic unconscious.” That is, both consciously recognized goals and “underlying” unconscious motives guide actual expression of emotions, thoughts and actions. As therapist and patient jointly In the context of psychotherapy, uncover and explore the patient’s transference describes the events and intrapsychic organization, the patient processes that take place when a patient gradually becomes more self-aware. The perceives and acts as if the therapist goal is for the patient to become sufficiently embodies or represents internalized insightful so that more fully informed choices are possible. Thus Chasing good definitions of key maladaptive or undesirable terms which have universal behaviors can be modified, consensus among practitioners is as discarded, or replaced by more effective options.
elusive as the proverbial dog’s tail.
memories of their parents from early childhood. These internalized memories begin as unconscious, and gradually
In psychodynamic theory, adult personality is the product of assimilating the social world in accordance with an emergent
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6 mental structure established in early interests in both process and outcome. Both formative experiences between the child interventions seek answers to deceptively and key parental How do we enable change? Steer it, if figures. Our internalized parental that can be done? Get out of the way representations can unconsciously filter, when the good things are happening? interpret and guide our interpersonal simple questions like Why do people interactions throughout adulthood. From the change? How do we get folks to listen perspective of psychoanalysis and properly? In other words, how do we psychodynamic therapies these processes enable change? Steer it, if that can be done? are universal. To the extent that they are Get out of the way when the good things are universal they affect all human interactions, happening? An inventory of their shared including mediation. goals would (almost universally) include: Both mediation and psychodynamic couples therapy involve a hired facilitator who is unbiased as to both consumers. Both mediator and therapist meet with clients together, and through artful conversation both helpfully try to facilitate the resolution of a presenting problem. Whatever the parties themselves may put forth as an agenda, the mediator’s and therapist’s expertise hopefully informs their pursuit towards what is truly in their best interests. In both endeavors a significant inducement is that participation is voluntary, and confidentiality is maintained throughout and thereafter.
• Developing an alliance with the client(s), • Educating the client(s) about his/her/their problems and possible solutions, • Helping the client(s) reconceptualize his or her problems in a more hopeful fashion, • Ensuring that the client(s) have basic coping skills, • Encouraging the client(s) to take responsibility for change, and • Nurturing the client(s) sense of personal mastery.
To the extent that participants are better able to resolve their disputes through an increased understanding of its underlying causes, an awareness of transference offers mediators another lens through which to refract the behaviors of those in dispute hopefully assisting them in reaching a mutually satisfactory agreement.
Surely we are in need of serviceable definitions. Unfortunately, chasing good definitions of key terms which have universal consensus among practitioners is as elusive as the proverbial dog’s tail. Despite the lack of universally accepted jargon, appreciating the universality of unconscious life and the feeling states that clients may attribute to their mediators can only enrich the process of mediation.
Despite their many differences, mediation and psychotherapy share some mutual
Continued on next page
Summer 2006 • Vol. 5 No. 3
7 A MEDIATOR’S TOOL KIT For practical purposes, here’s a randomly ordered inventory of 40 techniques wellworth considering. 1. Reframing
17. Pacing the process (setting the rhythm and timelines) 18. Lending “borrowed” ego of mediator to a party
2. Detoxifying
19. Inventing common parlance for private language between parties
3. Generating options
20. Role modeling
4. Validation
21. Humor
5. Empathic confrontation, (e.g., posing questions, identifying insinuations, innuendos and ulterior motives)
22. Reciprocal validation 23. Face-saving 24. Strategic working silence
6. Conjectural speculation about future implications and consequences
25. Creating a plan of action
7. Reality-testing
26. Determining need for education of a party and a learning curve
8. Hypothetical scenario-building 27. Adjusting expectations 9. Limit-setting 28. Posing hypothetical outcomes 10. Brainstorming solutions without critique or judgment
29. Simplifying (parceling into bite-size chunks)
11. Process commentary 12. Commenting on the past traditions and patterns the parties’ relational interactions 13 Causal analysis and interpretation (why do you think this is happening?) 14. Ethical analysis (what do you think is wrong here?)
30. Consoling disappointment (mourning loss, grieving) 31. Normalizing emotionality and permission to vent 32. Maintaining ethical and safety boundaries 33. Aspirational goal-setting
15. Paradoxical intervention (intending to elicit a contrary response) 16. Consolidation of issues and clarification
34. Facilitating apologies and forgiveness 35. Allowing parties to agree to disagree on some items
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The style and preference of some mediators may be to stay highly task-focused in order to avoid unproductive escalated tensions 37. Being mindful of body language & and unnecessary digressions which delay or impede reaching tangible agreement nonverbal communication quickly and less expensively. This bottom38. Promoting transparency line approach may neither encourage nor (communications open to all) permit the discussion of topics which invite transference. Indeed, despite their attention 39. Analogizing to body language, seating arrangements, evenhanded statements, and the like; many 40. Floating trial balloons (perhaps most) mediators adopt a style and Mediation typically unfolds in a relatively techniques to emphasize the here-and-now, lessened stress and short time. While it often focuses on pragmatics, emotionality. The existence of transference concrete, practical matters, there are always in the mediation relationship does not require its analysis for a successful In common parlance outcome. Conversely, an awareness transference appreciates that of its existence canâ&#x20AC;&#x2122;t hurt.
every relationship bears obvious identifiable traces recapitulating encoded earlier formative experiences. a myriad of emotion-laden issues that underlie the process. Illustrative of these are topics ranging from the care and custody of children, vacating the marital home, a sense of betrayal of trust from adultery, and the frustration of not being heard. Add to this the frightening specter of unanticipated expenses, the rapacious cost of litigation, insensitive lawyers and the opaque, dehumanizing legal process which often seems entirely disconnected from justice â&#x20AC;&#x201D; and its a wonder that so many mediations succeed. Perhaps the people who seek mediation are self-selecting, more secure, and better able to avoid some of the common rancor of divorce.
Nor should an appreciation of the role of the unconscious in the lives of potential mediation clients exempt them from being screened by the exclusionary criteria each mediator maintains. Mediation may be properly declined in cases involving domestic abuse, high conflict, coerced participation, intentional concealment, lack of negotiating skill, power imbalances, conflicts-of-interest, and so forth. A request to mediate cannot excuse a mediator from exercising good judgment In common parlance transference appreciates that every relationship bears obvious identifiable traces recapitulating encoded earlier formative experiences. Folk psychology had always known the acorn falls not far from the tree. The answer to the question whether transference is operative Continued on next page
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9 in the context of mediation is an easy yes. The answer to the questions of whether, and to what extent the transference affects and/or should be used in the process is far more complex. Ultimately, it depends on the expertise of the mediator, the collective goals for the process, the psychological sophistication of the clients, and the values offered by the particular mediator in his or her unique approach. Nothing more, and nothing less. Steve Nisenbaum, Ph.D., J.D., is on the staff at MGH, and is a Mediator, GAL, and Parenting Coordinator for the firm CO Solutions, LLP. He is a Member of the MCFM Board of Directors. He has previously served as President, Massachusetts Psychological Association; President, Massachusetts Chapter, AFCC; President, APA Division 18 (Public Service
Psychology) for the U.S. and Canada; Hearing Officer, Board of Bar Overseers; Board of Directors, MAGAL. Steve can be contacted at (978) 887-6606.
Rina Folman, Ph.D., is on the staff at University of Massachusetts Memorial Health Alliance. She has private practice offices for psychotherapy and parenting coordination in Brookline and Fitchburg. Dr. Folman also has special expertise in divorce, professional ethics and boundaries in sexual abuse, trauma, and coaching law clients to prepare them for the rigors of divorce litigation. She has also been active over the years in many professional organizations, including APA, MPA, MAGAL, AFCC and MCFM. Rina can be contacted at (978) 534-5365.
â&#x20AC;&#x153;Writing is perfume, each nose has its own opinions, and nobody smells good to everyone.â&#x20AC;? Elissa Ely
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STANDING IN THOSE BIG SHOES: What We Can Learn From Each Other About Marriage By Laurie Israel I don’t generally find myself agreeing with President Bush, but when he recently said that marriage is the most enduring and important human institution, I couldn’t have agreed with him more. Although I found his conclusion wrong — that gays and lesbians should not be permitted to marry and partake of this vital human institution — I thought his assessment of the importance of marriage absolutely on the right track. I am one of the people who married in Massachusetts after the ban on same-sex marriage here was lifted. I married Elaine after seventeen years of “engagement.”
to enter into a full-fledged legal marriage, with no difference from an opposite-sex marriage. We would not settle for running to Canada to marry, and we would not settle for running to Vermont to have a “civil union,” which is an entirely separate set of laws than marriage in that state. We would no longer run and hide. We were not willing to be second-class citizens any longer. Better to not marry with pride than to accept anything less than our neighbors next door had — full-fledged marriage, without ifs, ands or buts. Elaine and I felt it was time to symbolize our relationship with a ring. So we went to the jeweler who made the rings of our
Prior to our marriage, Elaine and I had completely lost hope that we Better to not marry with pride would ever have a legal, full-fledged than to accept anything less marriage during our lifetimes. We than our neighbors next door were in our late fifties at the time of had — full-fledged marriage, Goodridge, and had lived through many liberation movements, without ifs, ands or buts. including gay liberation. But the idea that a legislature or a court would (straight) friends who had recently come to the conclusion that we had the married. He made up matching rings which right to be legally married seemed so far- combined a ring of my mother and a ring of fetched, especially given the angry climate a grandmother. They were beautiful, had towards same-sex marriage on the part of great meaning, and with the “engagement” many religious groups. Gay marriage rings we had gotten 12 years earlier, we would then be the final frontier, one that were as close as we thought we would get would only take place after our deaths. to marriage. We also had decided, unlike some of our gay and lesbian colleagues, that we would marry only if we could in our home state (Massachusetts), and only if we were able
Eight months later, in November, 2003, the Goodridge decision came out. It was a surprise to everyone. We were shocked and
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11 overjoyed. The feeling during the days after Goodridge in the gay and lesbian community (and among our straight allies) was unbelievable. Then Goodridge II came out. This is the case which answered the question whether the rights of gays and lesbians would be legally satisfied with a separate system of civil unions for gays and lesbians and “marriage” for straight people. The answer of the court was a terse “no,” followed by the beautifully articulated reasoning. The Court said that a separate but equal system was inherently unequal, and that gays and lesbians should be able to marry on the exact same basis and with the exact same rules as straight people. It was another joyful day when that decision came out in February, 2004. That was when gay and lesbian people in Massachusetts started making wedding plans in earnest.
Because of the instability in relationships, same-sex couples usually maintained personal financial independence to a much greater extent than married couples. Gay and lesbian couples usually had separate bank accounts, financial assets, and strived to equally share expenses. Both parties generally worked outside the home. It was a very rare relationship where one of the parties maintained the household and the other party was the breadwinner.
Because the chances of having a lifetime relationship in a same-sex couple were so slim, everyone wanted to be protected when the relationship fell apart. As a practicing attorney, I had first-hand experience with many horror cases where there was a termination of the relationship of someone in a 20 or 25-year relationship with no money of his/her own, and nothing Gays and lesbians who were in coupled titled in his or her own name. When this relationships had to really think about what takes place in the context of no firm law marriage meant, and whether they wanted to (such as divorce laws) to determine what marry. The psychology and culture of gays will happen financially, the results are and lesbians has generally been (with devastating. The litigation on these issues exceptions) that relationships are conducted is always complex, indeterminate, and in serial monogamy and discarded when the costly in all ways. Sometimes same-sex partners had transferred or held property in joint Because same-sex couples did not prior to the have all the cultural expectations and names break-up. Litigation on family support of legal marriage, the issue of who had often when the going got tough, the what rights to this property and in what relationship would come to an end. amounts was fierce. inevitable difficulties in long-term And I saw many instances of surviving relationships arise. Because same-sex partners in same-sex relationships of many couples did not have all the cultural years duration impoverished and with no expectations and family support of legal legal rights when his or her partner had marriage, often when the going got tough, died. the relationship would come to an end. Family Mediation Quarterly
12 So gays and lesbians usually strove for People in difficult and uncertain financial independence in their relationships were being asked “So when relationships. An interesting result of this are you getting married?” People in very independence is that I believe it After much intricate planning (where were actually further our mothers when we needed them?) weakened the we had a wonderful, large wedding. relationships. As a lawyer dealing with married couples in many short relationships were under pressure to contexts, I have come to the conclusion get married. Everyone had to decide that financial necessity and financial whether they now wanted to stay with their interdependence is one of the important partners for the rest of their lives. People in “glues” which holds a marriage together. long relationships like me and Elaine were (See my article, “How to Save Your put in the position of having to decide Marriage” at www.laurieisrael.com) whether to continue and ratify their relationship. The relationship of anyone But financial interdependence rather then who chose not to marry was deemed self-protecting independence can only suspect or questionable. Gays and lesbians happen in the context of the helpful laws in Massachusetts started thinking about the (statutory and judge-made) that comprise implications of marriage. the laws of marriage and divorce. In addition, I believe in order for marriage to Elaine and are were in the seventeenth year flourish, there has to be some risk taken in of our relationship. We had been through the marital enterprise. A contract, even if it much in those seventeen years. We were contained the thousands of laws and court not at the beginning of our relationship, decisions of the common law (which is and although we knew that we wanted to be impossible), would not do as much for the in our relationship for a lifetime, what relationship as the simple words “we are would “marriage” bring? It was like married.” “We are married” is really stepping into a new world. We didn’t know shorthand for the thousands of concepts, if, or how, anything would change if we got developed by human history, societies, married. We both thought about it seriously literature, psychology, and culture, that (for a couple of days) and decided to marry. comprise marriage. These clearly cannot be We wanted to be in our relationship, warts fully obtained by entering into a written and all, and for the long-term. I also (as it civil contract. turned out wrongly) thought that marriage would not change anything. So when Goodridge came out, gay and lesbian people in relationships started So, after much intricate planning (where thinking about getting married. This was a were our mothers when we needed them?) complex process for all of us, with many we had a wonderful, large wedding with experiencing a great deal of pressure. Continued on next page Summer 2006 • Vol. 5 No. 3
13 many events in September, 2004. Most of our guests (our friends and relatives) were straight. We had a rabbi perform the ceremony, because we wanted to show people that we could get civilly married and religiously married — just like other folk. During the ceremony my son presented us with our wedding rings — the rings we had made up the year before. Everyone (including Elaine) wept at the ceremony. We all felt that we had come to a very special day. Elaine and I felt very supported by our friends, relatives and colleagues. At the wedding dinner, a lesbian friend who had recently married under Goodridge, gave a toast. She and her partner had been together 20 years prior to their marriage a few months earlier. Our friend said that after their marriage, they were surprised how much everything changed, “Our love has burst over and overflowed” she said. They were touched by how close they felt, and how their love had grown after the wedding. She said their relationship had really changed and deepened after finally being allowed to marry. At the time, I thought, I wouldn’t feel that way — that marriage wouldn’t deepen the commitment Elaine and I already felt. But I was wrong. At first after the wedding, I felt unchanged. (I am not saying “we” because Elaine tells me that she immediately felt different.) The wedding was wonderful, but we were still
When you get married, ‘the back door closes.’ the same people in a long-term relationship. But then, gradually, we both started tuning
into all the references to marriage and married people and married life in the media — on TV, in newspapers, in the books we were reading. Gradually, day by day, I started feeling “married,” and Elaine was feeling “more married.” We began to connect to all the references and allusions we saw in the media and in daily life to us and our marriage. It felt like we were stepping into big shoes and starting to walk in them. By tapping into the cultural understandings of what marriage is, we were building our own marriage. Our feelings towards each other were growing, as predicted by our friend at the wedding. Our way of treating each other on a daily basis improved. We were totally committed to each other. After all, we were now married. And yes, being married really changed things for the better. As we started to tap into the institution of marriage, we started growing and changing. We were repatterning our behavior and expectations. The well-trained impulse to see our relationship as somehow nonpermanent or lesser than straight relationships started to disappear. As we experienced being married, we realized that previously had felt a deep sense of inferiority about our relationship. Now we were actually married and our relationship had the same status as everyone else’s. We had more respect for ourselves, each other, our relationship, and our place in society. Elaine started putting out the American flag on July 4th. We really felt like Americans for the first time, and not outsiders.
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14 As we continued to experience marriage, “significant others” — we are “married,” we started really understanding the with all the comfort and complexity that harshness of not being able to be married. word designates. Although we made the President Bush is right — marriage is the rabbi conducting our wedding ceremony most important and enduring human institution. We finally were allowed Being married really changed to be fully human. It was wonderful.
things for the better.
A straight neighbor (in a successful second marriage) articulated one of the wonderful things about marriage better than anyone I’ve ever heard. After he congratulated us on our marriage, he said that when you get married, “the back door closes.” He described how good that feeling was. No more wondering if this is the relationship you should or shouldn’t be in. No more wondering if it’s permanent. No more looking for other people or another life. That decision has been made. You have made the ultimate commitment to another person. Now it’s time to relax and delve into whatever the marital relationship offers. After the marriage, Elaine and I have continued to process what it means to be “married.” We had no direct social history of gays and lesbians being legally married (although we know there have been many devoted, committed couples in the past, such as Gertrude Stein and Alice Toklas). We feel like pioneers. Now, after almost two years of marriage, we simply feel, well, married. And it feels very good. Our understanding of “marriage” increases month by month and we start to absorb it into our lives. It has strengthened our relationship and our relationship with others. We are no longer “partners” (such a cold word!) or cohabitants, or
say “spouse” or “spouses” when referring to us in our new status, very shortly after the marriage, we started referring to each other as “my wife.” The men who got married started calling each other “husband.” This change in terminology among gay and lesbian people came about naturally, and is almost now universal. It was actually a surprise to all of us. We feel we have reclaimed for ourselves the warmth and affection of the words “wife” and “husband.” They are, indeed, wonderful terms so full of so much meaning. In this and in other ways, we believe we are helping to redefine and revitalize marriage as a more positive institution. After all, we have chosen and fought for marriage. It was not imposed on us by cultural or family expectations. We cherish the opportunity for personal growth, community ties and security that long-term marriage offers. Because it was denied to us for so long, we value it in a way that perhaps many straight people do not. We hope that more straight people (and even those who are now of the opinion that we shouldn’t be permitted to be married) come to the realization (as many already have) that our marriages have the potential to
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15 invigorate and strengthen the institution of marriage as no historic event has ever had. As a lawyer practicing in the area of divorce, I have clearly seen how marriages break up for little or no good reason. I have personally dealt with in my practice the results of marriages entered into lightly, and discarded easily. You can imagine how hurtful this scenario is to lesbian and gay people who cannot get married. I have seen marriages of many years duration where the parties clearly (and often for no good reason) cannot abide the other party. What happened to the love they felt at the beginning? Why can’t they appreciate the opportunity to cherish each other and care for each other? I have seen and heard about all the ugly things married people can say and do to each other. I know about all the bad events and disappointments that married life brings that sometimes kill a marriage. I can see how fragile marriages are if the daily work of commitment, communication and cherishing is not done. I can generally tell within several minutes of a meeting with a couple (in a non-divorce matter) whether this marriage is likely to survive or fail. I also see that marriage has great value. It creates personal and financial security, interest in life, someone to talk with on a daily basis and with whom to experience
Know that every marriage strengthens society. the flow of human events. Marriage is a process that I believe can be worked out by almost every married couple if they really
want to. I view life-long marriages, even if not perfect, as a good thing, and an old age together as a reward for work well-done in the marriage. I see the value in all our imperfect marriages. In short, even before Goodridge, but more strongly afterwards (now that I have a personal stake in it), I have become a marriage “booster.” My practice of law has also blossomed since Goodridge. Because I am now really married, I no longer feel like a “sham” when I counsel married couples and help divorcing clients. Now I can wholeheartedly work as a legal professional working in the context of marriages as it comes up in divorce law, estate planning, or other issues my married clients are experiencing. And, since Goodridge, I have more strongly focused my practice in the areas of marriage, divorce, post-nuptial mediation and preand post-nuptial legal counseling. It is where I feel most driven to practice. These are the areas I love to work in and where I feel totally comfortable and effective. And I feel my skills in counseling others have grown as a result of my own real, legal, bona fide marriage. Elaine and I continue to step into those big shoes as we absorb the lessons of marriage on a daily basis. The back door has closed, and we can process our marriage until our deaths. We are grateful to be included in this most important vital institution. And we reclaim the words that fit our situation. We are married, Elaine is my wife. I am her wife. So what can straight people teach gays and lesbians about marriage? That it is a
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16 strong, complex, culturally-based institution that promotes personal growth,
marriage should be nourished and treated with great care. Don’t marry lightly, but once you do, make the Marriage should be nourished and ultimate commitment. And always appreciate the fact treated with great care. that you have the opportunity family connections, psychological health to be married - it is the most precious thing and financial security. Know that every life has to offer. marriage strengthens society and that marriage has a myriad of implications and Together we can forge a stronger and more a great history. That even if your marriage enduring institution. is not perfect and you may sometimes have great conflict with your spouse, it is ultimately worthwhile and the day will come when you will adore him or her Laurie Israel established her again. We learn that lifetime relationships Boston area law office in 1991. It with no end until death are extremely provides representation for valuable even if achieved at some hard individuals and small businesses costs. in the areas of real estate, taxation, debtor and creditor law, estate planning, estate And what can gays and lesbians teach administration, probate of estates, divorce, straight people about marriage? That divorce mediation, collaborative law and marriage is precious, and is a great bankruptcy. Laurie can be contacted at 617opportunity for personal growth. That 277-3774, or by email at marriage should be cherished, savored and <lisrael@socialaw.com> © 2006 Laurie protected and not thrown away. That Israel. All rights reserved.
“A happy marriage is the union of two good forgivers.” Robert Quillen (1887-1948)
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BUILDING COMMUNITY: SUSTAINING ADR IN THE COURTS A Conference Report by Christine W. Yurgelun The Administrative Office of the Trial Court, The Standing Committee on Dispute Resolution and the Massachusetts Office of Dispute Resolution (MODR) cosponsored a one-day Court-Connected ADR conference at the Sheraton Four Points in Leominster on June 15, 2006. The conference theme was “Building Community: Sustaining ADR in the Courts.” According to the conference announcement sent by Hon. Robert A. Mulligan, Chief Justice for Administration and Management of the Trial Court, the conference was intended to explore ways to implement fully the Uniform Rules and rejuvenate ADR services in the Trial Court. In past years, court- connected ADR conferences have focused on the programs which have been approved to provide court-connected dispute resolution services; this conference was designed to address the specific needs and interests of Local Dispute Resolution Coordinators who have been appointed pursuant to Rule 4(d) of the Uniform Rules on Dispute Resolution (SJC Rule 1:18) in each department. Conference goals included: sharing skills about how to discuss ADR options with litigants and court personnel; building relationships among coordinators and between coordinators and “their” local approved programs; and providing information about ADR process options and services available in each department. Hon. Sean M. Dunphy, Chief Justice of the Probate and Family Court, encouraged attendance observing the program would
be “an important opportunity to receive and share information concerning implementation of SJC Rule 1:18.” Noting that this conference was the first opportunity for Local Dispute Resolution Coordinators to gather and discuss their roles and duties since all trial court departments adopted proactive case management Time Standards, he encouraged conference participation because “well-informed Local Dispute Resolution Coordinators can make a substantial contribution to the awareness and understanding of ADR options which will assist parties in reaching their own resolution”. The Probate and Family Court seeks to integrate ADR within case management efforts. For example, ADR referrals are suggested in Probate and Family Court revised Case Management Standing Order 1-06. Opening remarks were made by Susan Jeghelian, Director of MODR; Mark Mason, President-Elect of the Massachusetts Bar Association; Judge Gail Perlman, First Justice of Hampshire Division and Chair of the Trial Court’s Standing Committee on Dispute Resolution; and Hon. Robert A Mulligan; Chief Justice for Administration and Management. Beth Crawford, Local Dispute Resolution Coordinator and Assistant Register in Hampshire Division, presented an overview of the Local Dispute Resolution Coordinator’s role and responsibilities. The rest of the day’s agenda included: a demonstration of mediation; interactive interdepartmental
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18 small group sessions, and small group sessions by department. Over 150 individuals attended the conference. Attendees included Chief Justice Dunphy as well as twenty-five individuals from the Probate and Family Court. Insights drawn from the conference will be compiled by the Standing Committee (which is not meeting this summer.) We expect the compilation to be completed and shared with each department this fall. The list of Local Dispute Resolution Coordinators (as of July, 2006) follows. It can also be downloaded from the trial court website at www.state.ma.us/courts. 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.
MASSACHUSETTS PROBATE & FAMILY COURT LOCAL DISPUTE RESOLUTION COORDINATORS Barnstable Division Michael Stevens Barnstable Probate & Family Court Main Street, P.O. Box 346 Barnstable, MA 02630 (508) 375-6718
Berkshire Division Clement Ferris Berkshire Probate & Family Court 44 Bank Row Pittsfield, MA 01201 (413) 442-6941 ext. 7209
Bristol Division Tricia Poole Bristol Probate & Family Court 11 Court Street, Box 567 Taunton, MA 02780 (508) 672-1751 x200 (Fall River) (508) 999-5249 (New Bedford)
Essex Division Julie Stiles Matuschak Essex Probate & Family Court 36 Federal Street Salem, MA 01970 (978) 744-1020 ext. 324
Franklin Division Jodie Nolan Franklin Probate & Family Court P.O. Box 590 Greenfield, MA 01302 (413) 774-7011
Hampden Division Elizabeth Sickelco Hampden Probate & Family Court 50 State Street Springfield, MA 01103 (413) 748-7786 Continued on next page
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19 Hampshire Division Beth Crawford Hampshire Probate & Family Court 33 King Street Northampton, MA 01060 (413) 586-8500 ext. 259
Middlesex Division Alison McCrone & Krishna Butaney Middlesex Probate & Family Court 208 Cambridge Street P.O. Box 410-480 East Cambridge, MA 02141 (617) 768-5843 (Alison McCrone) (617) 768-5853 (Krishna Butaney)
Norfolk Division Edmund Harrington Norfolk Probate & Family Court 35 Shawmut Road Canton, MA 02021 (781) 830-4356
Plymouth Division David Nolan Plymouth Probate and Family Court 215 Main Street, P.O. Box 7277 Brockton, MA 02303-7277 (508) 897-5429
Suffolk Division Daniel Gibson Suffolk Probate & Family Court 24 New Chardon Street Boston, MA 02114 (617) 788-8359
Worcester Division Robert Terk Worcester Probate & Family Court Two Main Street Worcester, MA 01608 (508) 770-0825 ext.207
“As to marriage or celibacy, let a man take which course he will, he will be sure to repent.” Socrates
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COURT CONNECTED ADR: A NEW START By Mark I. Zarrow Court-connected ADR in Massachusetts has long held the promise of promoting ADR to litigants and offering ADR practitioners an opportunity to expand their practices. But that promise has remained largely unfulfilled. Now, under the umbrella of the Administrative Office of the Trial Court (AOTC) and the Chief Justice for Administration (CJAM) Judge Robert Mulligan, and with the leadership of Judge Gail Perlman, the Standing Committee on ADR has been renewed and revitalized. With this new energy comes hope that ADR can at last take its place as an equal beside litigation as an accepted, accessible means of settling disputes in the courts.
called for the court to ensure the quality of court-connected ADR, use consistent standards, make ADR services available throughout the court system, and guarantee that access to ADR doesn’t depend on parties’ ability to pay. Soon afterward, the Supreme Judicial Court formed the Standing Committee on Dispute Resolution to formulate uniform rules for the courts. In 1998 the Uniform Rules on Dispute Resolution were adopted by the SJC in phases. The most contentious, Rule 8, which spelled out qualifications for courtapproved neutrals, was not settled upon and adopted until November 2003.
The Renewed Effort After completion of Some History Various forms of ADR the Uniform Rules, the Standing Committee have been used in some departments of the became a committee of the Trial Court, trial court for many years. For example, charged with taking up the task of helping since 1983, the Attorney General’s office the CJAM implement the new Rules, that is has been involved with some community making ADR a reality in the courts. Today’s mediation programs that provide mediators committee is composed of one to small claims sessions at many district representative (and in some cases, two courts. The Housing Court has long had a representatives) of each of the seven program in which trained staff engage departments of the trial court, usually a parties in “dispute intervention,” a process judge, administrator, or ADR coordinator. similar to mediation. So too, With new energy comes hope that the Probate Court through its probation department has ADR can at last take its place as an used this process to help equal beside litigation as an parties settle or narrow their issues in domestic relations accepted, accessible means of cases.
settling disputes in the courts.
In the early 1990s the Supreme Judicial Court, in consultation with the CJAM, adopted the Policy Statement on Dispute Resolution Alternatives. The statement
Attorneys, ADR practitioners, and a representative of a community mediation
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21 program fill in the rest of the committee. Since its inception, the committee has participated in two conferences on courtconnected ADR sponsored by the Trial
Public awareness: educating litigants and the public in general about ADR and its advantages
Perhaps the biggest challenge ahead of the Standing Committee is one grounded in reality: finding enough funding to put these plans into action. Court. In June 2005 a conference, “Implementation and Beyond, Sustaining ADR in the Courts,” was aimed at ADRapproved programs and their needs and interests. “Building Community: Sustaining ADR in the Courts,” held in June 2006, was aimed at local ADR coordinators who, at least theoretically, have been appointed for each court location in the Commonwealth. The purpose was to: • inspire local ADR Coordinators to do their ADR tasks • share basic skills about how to discuss ADR with litigants and others, • build relationships among local coordinators and between them and their local ADR programs, and • provide information. The Standing Committee itself has addressed its responsibility to explore implementation ideas by appointing or assisting six working groups, each of which has examined one way to make courtconnected ADR a vital force. The working groups’ focuses are:
Court systems: developing systems to improve case referral, communication between programs and the courts, expanding visibility of programs at each court division
Training, mentoring, and evaluating neutrals under Rule 8: establishing state-of-the-art methods for carrying out the mandate of Rule 8, while keeping an eye on the practicable Enlisting support of judges, attorneys, and court personnel: finding creative ways to enlist the support of the above about ADR as a core function of each department of the Trial Court Data collection and evaluation of the court ADR system: identifying a system for collecting data that’s useful but not burdensome and designing methods for evaluating the data The Budget Coalition of Community Mediation Programs: coordinating existing court-connected programs to get as much money as possible from the legislature and exploring ways to increase funding within and outside the legislature Each working group includes at least one Standing Committee member as well as court employees and ADR practitioners. With the exception of the Budget Coalition, whose work continues, all the working groups are drafting reports that will go to
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22 the Standing Committee in September. Once the Standing Committee has reviewed it, the full report will go to the CJAM. The Future Because Judge Perlman recognizes that a cultural change must take place before ADR can be implemented into the judicial system, she has asked the working groups to think small and big, to propose low-cost approaches as well as farreaching, expensive efforts. She has asked the groups to look locally and statewide, short-range and long-range, considering all forms of ADR and all seven departments of
the trial court. Perhaps the biggest challenge ahead of the Standing Committee is one grounded in reality: finding enough funding to put these plans into action. Mark I. Zarrow, Esq. is a member of the Administrative Office of the Trial Court’s Standing Committee on Dispute Resolution, and an MCFM Officer. Mark welcomes any questions or comments about the Standing Committee’s work. He can be reached at (508) 799-4461, or by email at <mzarrow@lzes.com>
Doubt, indulged and cherished, is in danger of becoming denial; but if honest, and bent on thorough investigation, it may soon lead to full establishment of the truth. Ambrose Bierce
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THE PERILS OF IMPETUOSITY By Les Wallerstein After 25 years and three children José and Carmen never dreamed of divorce. As Mexican professors at major universities both spoke impeccable English, but money was in short supply. In fact, it was Carmen’s discovery of José’s secret and sizable gambling debts that precipitated their break-up. José was deeply ashamed, but his apologies fell on deaf ears. Not even
sincerity to finish the mediation. Besides, they had both started dating and she was ready to move on.
Unbeknownst to her, José had already moved on. He had discovered new love and planned to propose. Frustrated at the sluggish pace of the mediation and energized at the prospect of marrying a woman who appreciated A Massachusetts court is not bound him, José wanted to expedite the divorce. He to give the judicial acts of any went online. A “quickie sovereign nation the same “full faith divorce” search led him to a handful of Latin and credit” that it is required to American countries that afford every American state. offered divorces with residency requirements his steadfast support of Carmen during her satisfied by simply appearing in court. His years of treatment for a cancer now in fluency in Spanish made choosing remission was enough to dissuade her. She irresistible. José filled out the forms and declared their marriage was over. Only José flew south. The next day he appeared in wore a wedding ring at our first meeting, court and flew back. and only he was in tears when it ended. It took much longer for the paperwork to We began to mediate. José was eager to follow him home. During that time José felt provide everything Carmen asked for. He his luck improving. Within weeks he found even took a second job to give her what he a better paying position, allowing him to couldn’t afford. He gladly paid child quit his second job. His new benefits support in excess of the guidelines and included more comprehensive health readily relinquished his equity in the insurance for Carmen and the kids. Having marital home. But his enthusiasm to please learned to live in fear of a recurrence her and willingness to assume all his Carmen was truly grateful. With life on the gambling debts evoked little but upswing and the paperwork finally in hand, skepticism. Carmen had been betrayed, and José decided that it was time to share the she demanded that he atone with time- news of his upcoming nuptials. tested good faith. For many months we didn’t meet. After almost two years He was genuinely dumbfounded when his Carmen had regained enough trust in his joyful news had a devastating effect. Since Family Mediation Quarterly
24 she wanted the divorce, José assumed that Carmen would be pleased. He never imagined she would construe his secret divorce as another betrayal. More importantly, neither realized that if the quickie divorce was valid, Carmen was not his wife at the time he applied for her new health insurance. Since family coverage from his old job had lapsed, Carmen faced the prospect of being uninsured. The mediation was in shambles and José was in tears again.
state. Second, Carmen had not been notified of the proceeding. Thus she neither appeared nor was represented by counsel.
In order to preserve Carmen’s health insurance the quickie divorce would have to be nullified. The objective now was to validate their Mexican marriage. If successful, a Massachusetts court could grant a divorce after Carmen’s new health insurance was in effect — protecting her continued coverage.
Despite their predicament, José and Carmen both ignored my repeated advice to hire counsel. They were determined to file their uncontested divorce pro se. Their petition would simultaneously disclose and disavow the quickie divorce. As they hoped for the best, Carmen categorically insisted that if the judge ruled against them — leaving her without health insurance — he would have to pay her counsel to file an appeal. With hands clasped José prayed he wouldn’t have to, but if necessary promised that he would.
Having never dealt with anything like this, I sought advice from anyone who would risk offering it. From that process two arguments from several lawyer-mediators gave rise to cautious optimism. First, a Massachusetts court is not bound to give the judicial acts of any sovereign nation the same “full faith and credit” that it is required to afford every American
A divorcing spouse in Massachusetts has due process rights, i.e., the right to notice and the right to be heard, either personally or through her attorney. Since the quickie divorce was violative of Massachusetts law, their hopes hinged on the discretion of a Probate and Family Court judge to find it invalid.
Les Wallerstein is a family mediator and collaborative lawyer in Lexington. He can be contacted at (781) 862-1099, or at wallerstein@socialaw.com.
“A moment’s insight is sometimes worth a lifetime’s experience.” Oliver Wendell Holmes Jr. Summer 2006 • Vol. 5 No. 3
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UPDATE REGARDING JERRY’S LIST: MCFM’s Related Professionals Directory By Mary T. Johnston Thanks to those members who have sent in recommendations for our planned Jerry’s List: MCFM’s Related Professionals Directory. We hope to continue to receive your suggestions for others to be included in the directory. You might also want to encourage another mediator to concur on your recommendation. We hope that Jerry’s List will provide a source for recommended specialists in areas of expertise related to family mediation, such as parenting schedules, tax issues, and real estate appraisals, with the recommendations coming from our fellow mediators with the aim of helping other mediators with the information. All MCFM members are encouraged to share their recommendations of related professionals with whom they have shared positive mediation experiences. Recommendation forms are available online at www.mcfm.org. When completed, please email to <mcfm@rcn.com>. Completed hand written forms should be mailed to MCFM, c/o DeLaurice H. Fraylick, 23 Parker Road, Needham Heights, MA 02494-2001 JERRY’S LIST RECOMMENDATION FORM LISTING REQUIREMENTS: Licensed in profession of specialty, Member of profession in good standing, Bachelor’s Degree or appropriate higher degree or suitable training in one’s field, and Written recommendations from at least two MCFM members. NAME OF RELATED PROFESSIONAL: __________________________________ PROFESSION OR SPECIALTY: __________________________________________ ADDRESS: ___________________________________________________________ TELEPHONE NUMBER: ________________________________________________ INFORMATION REGARDING PROFESSIONAL’S EXPERIENCE WORKING WITH DIVORCING INDIVIDUALS OR THOSE IN TRANSITION: ___________________ ______________________________________________________________________ ______________________________________________________________________ MCFM MEMBER MAKING RECOMMENDATION: __________________________ OTHER MEDIATORS WHO MIGHT CORROBORATE NOMINEE _____________ ______________________________________________________________________ ADDITIONAL COMMENTS REGARDING PROFESSIONAL: _________________ _______________________________________________________________________
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WHAT’S NEWS? Chronologically Compiled by Les Wallerstein Who’s the Daddy? ‘Not Me’ Often Means ‘In Denial’ A review of more than 65 studies of paternity has concluded that in the US, men confident about their paternity are almost always right, but those who insist that children are not their own are almost always wrong. Using the most extensive data on nonpaternity rates assembled to date, those who insist they are not the fathers are in fact the biological fathers in more than 70 percent of the cases. (Nicholas Bakalar, New York Times, 4/25/2006) Kansas Raises Age of Consent to Marry The state legislature passed a bill banning anyone under the age of 15 from getting married in Kansas. The bill was sponsored in response to the case of a 22 year-old Nebraska man who married his 14 year-old girlfriend after she became pregnant. Henceforth, 15 year-olds can marry in Kansas if a judge determines its in their best interest, and 16 and 17 yearolds can marry with either parental or judicial consent. (New York Times, 5/5/2006) Divorce & Identity Theft A recently arrested 23 year-old methamphetamine user in a Scotsdale, AZ police station pulled up a local divorce document listing the parties’ names, addresses and bank account numbers, along with scans of their signatures. With a common software program and some check stationary, the document provided all he needed to print checks in his victims names - all made available by the county recorder’s office.... According to a Federal Trade Commission survey in 2003, about 10 million Americans — 1 in 30 — had their identifies stolen in the previous year, with losses to the economy of $48 billion. (John Leland and Tom Zeller, Jr., New York Times, 5/30/2006) US Senate Rebuffs Same-Sex Marriage Ban The Senate rejected a proposed constitutional amendment to ban same-sex marriage, rebuffing both President Bush and the social conservative movement. This effectively killed the issue for the year. (Carl Hulse, New York Times, 6/8/2006) Gay Providence Couple Seek Marriage License A Massachusetts Superior Court judge heard arguments that a gay couple from Rhode Island should be allowed to marry in the Bay State because Rhode Island law does not explicitly ban same-sex marriage. The couple, who have been together for 18 years, said they hoped that the example of more and more happily married gay couples would lead to greater acceptance by the public and lawmakers. The court’s decision is not expected for several weeks. (Brian MacQuarrie, Boston Globe, 6/27/2006) Continued on next page Summer 2006 • Vol. 5 No. 3
27 Court Overturns Arkansas Ban on Same-Sex Foster Parents By a unanimous decision, the Supreme Court of Arkansas held that the state cannot bar gay men and lesbians from becoming foster parents because there is no link between their sexual orientation and a child’s well-being. (AP, New York Times, 6/30/2006) New York Rejects Any Right to Gay Marriage By a 4-2 majority, New York’s highest court found that the State Legislature, in laws dating back nearly 100 years, intended to limit marriage to a union of a man and a woman, and that the Legislature had a rational basis for doing so. The court said it would be up to lawmakers to decide whether same-sex marriage should be permitted. The court’s chief judge issued a sharp dissent saying that barring gay marriage was tantamount to barring interracial marriage, as laws formerly did. “The long duration of a constitutional wrong cannot justify its perpetuation, no matter how strongly tradition or public sentiment might support it.” (Anemona Hartocollis, New York Times, 7/7/2006) Georgia Upholds Same-Sex Marriage Ban In a unanimous reversal of a lower court decision, six justices of the Georgia Supreme Court ruled that the state’s 2004 ban against same-sex marriage was not unconstitutional. (Brenda Goodman, New York Times, 7/7/2006) Amendment Banning MA Same-Sex Marriage Passes Constitutional Muster The Massachusetts Supreme Judicial Court unanimously ruled that a proposed constitutional amendment to ban future same-sex marriages can be placed on the ballot, if approved by the Legislature. It said that the constitution does not bar citizen initiatives from making prospective changes to the constitution, even if that effectively overrules the effect of a prior court decision, because that change would not be a reversal. (Denise Lavoie, Boston Globe, 7/10/2006) Vote on Same-Sex Marriage Amendment is Delayed in MA The Massachusetts Legislature postponed until after Election Day what promises to be an impassioned debate and vote on a constitutional amendment to ban future same-sex marriages. The vote was 100 to 91 to recess until November 9th. The postponement infuriated opponents of same-sex marriage and galvanized its supporters. (Katie Zezima, New York Times, 7/13/2006) Two Rulings Deal Blow to Same-Sex Marriage In Nebraska, a federal appeals court, the highest-level federal court to take up the issue, reinstated a ban on same-sex marriage that had been approved by voters on 2000. A federal district court judge had overturned the ban last year, saying it was Family Mediation Quarterly
28 discriminatory and punitive. In Tennessee, the State Supreme Court ruled that a proposed constitutional amendment against same-sex marriage could stay on the November ballot. (Pam Belluck and Gretchen Ruethling, New York Times, 7/15/2006) Audit: “Deadbeat” Laws are Failing Under Massachusetts law any parent who is at least 56 days delinquent in his child support payments — or who owes more than $500 in back child support — can have his driver’s license suspended. But during a single two-month period the state’s Child Support Enforcement Division sent out warning letters to only 3 percent of the nearly 27,000 parents who were eligible to have their licenses suspended. Delinquent parents in Massachusetts owe about $1.5 billion in unpaid child support. A DOR spokesman said a recent change in the system will automatically send out initial warning letters to parents once they pass the threshold. (Massachusetts Lawyers Weekly, 7/17/2006) Amendment to Ban Same-Sex Marriage Fails in House of Representatives Republicans in the US House of Representative failed in their effort to pass a constitutional amendment banning same-sex marriage. The vote, 237 to 187 (with one member voting “present”) was largely symbolic because the Senate rejected a similar bill in May. (Kate Zernike, New York Times, 7/19/2006)
“Though it be honest, it is never good to bring bad news.” William Shakespeare
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MCFM NEWS JUNE 14th ELECTION RESULTS: Congratulations to the newly elected MCFM Officers & Directors! Officers, elected to two-year terms, from June, 2006 â&#x20AC;&#x201D; June, 2008: President: Lynda J. Robbins Vice-President: Kathleen A. Townsend Vice-President: Marion Lee Wasserman Clerk: Jonathan E. Fields Treasurer: Mark I. Zarrow The following members were elected to the Board of Directors to serve two-year terms, from June, 2006 through June, 2008: Robert V. Deiana, S. Tracy Fischer, Howard I. Goldstein, Mary T. Johnston, Patricia A. Shea, Mary A. Socha, Debra L. Smith and Les Wallerstein. The following Directors will continue their current two-year terms, which will expire in June, 2007: Lynn K. Cooper, Michael L. Leshin, Harry E. Manasewich and Steven Nisenbaum In addition, the past-president, Laurie S. Udell, will act as an unelected Director from June, 2006 through June, 2008. In accord with the MCFM By-Laws, the officers, Lynda J. Robbins, Kathleen A. Townsend, Marion Lee Wasserman, Jonathan E. Fields and Mark I. Zarrow, as well as past-president Laurie S. Udell will comprise the 2006-2008 Executive Committee. Unelected Board Members Emeritus are John A. Fiske, Janet B. Weinberger, Jerome H. Weinstein and Barbara N. White.
NEXT EXECUTIVE COMMITTEE & BOARD OF DIRECTORS MEETING Monday, September 18, 2006 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 Family Mediation Quarterly
30 Directions to Deb’s office are available online at www.lawdebsmith.com PLEASE EMAIL ANY AGENDA ITEMS FOR CONSIDERATION TO: Lynda J. Robbins at <ljrobbinsesq@verizon.net>, or to any other officer, all of whom are listed in the DIRECTORATE on page 35.
NEXT MEMBERS MEETING DIVORCE AND THE SPECIAL NEEDS CHILD Wednesday, September 13, 2006 9:00 - 11:00 AM The Wakelin Room, WELLESLEY FREE LIBRARY Route 16, Wellesley Center Neal A. Winston, Esq. of Moschella & Winston, LLP, and Dafna Krouk-Gordon, President of TILL (Toward Independent Living and Learning, Inc.), will present a workshop covering what every divorce mediator needs to know about special needs children’s issues in the context of divorce. always MEMBERS ARE WELCOME TO BRING GUESTS!
MCFM’s MCFM’s 5th ANNUAL FAMILY AMILY MEDIATION MEDIATION INSTITUTE Friday, October 20th, 2006 8:30 - 5:00 PM Wellesley Community Center Learn about BODY LANGUAGE AND STRESS with Joe Tecce, Ph.D., Explore BEYOND REASON: DEALING WITH EMOTIONS IN MEDIATION with Daniel Shapiro, Ph.D. AFTER A SUMPTUOUS LUNCH, choose two of the following six workshops presented by a distinguished faculty of experts. • MEDIATING PARENT/CHILD DISPUTES • MEDIATING GRANDMA’S AND GRANDPA’S DIVORCE • POWER IMBALANCES • RECENT DEVELOPMENTS IN FAMILY LAW • COACHING, PSYCHO-EDUCATION, PARENTING COORDINATION & RESILIENCE MODEL APPROACHES IN DIVORCE MEDIATION • CHALLENGES IN CHILD SUPPORT
FOR INSTITUTE DETAILS SEE INSERTED FLIER OR VISIT MCFM.ORG MAXIMUM ATTENDANCE 90! - REGISTER EARLY!! EARLY!! Summer 2006 • Vol. 5 No. 3
31 CERTIFICATION & RECERTIFICATION CHANGES At MCFM’s annual, long range planning meeting on June 23rd, the board voted to amend the bylaws regarding certification requirements as follows, effective immediately: • Recertification will occur every two years, only on odd-numbered years, regardless of when the mediator was originally certified. • Documentation of malpractice insurance covering mediation (in amounts not less than $300,000 aggregate, $100,000 per incident) is mandatory for certification and recertification. • The fee to apply for certification is $150, and the fee to apply for recertification is $75. For more information contact Lynn Cooper at <lynnkcooper@aol.com>. For certification or re-certification applications contact DeLaurice Fraylick at <masscouncil@mcfm.org>.
MEDIATION PEER GROUP MEETINGS 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) 2568178 or Karen Levitt at (978)458-5550 for information and directions. All MCFM members are welcome. Metro-West Mediators Group: The Metro-West group (usually) meets on the first 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.
“Any group that would have me as a member isn’t worth joining.” Groucho Marx Family Mediation Quarterly
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ANNOUNCEMENTS NOMINATIONS ARE OPEN! FOR THE ANNUAL JOHN ADAMS FISKE AWARD FOR EXCELLENCE IN MEDIATION MEDIATION Last year, MCFM established the annual, John Adams Fiske Award for Excellence in Mediation. Anyone who has shown excellence in and/or contributed to family mediation in Massachusetts is eligible to win. The first honoree was John Fiske. This year’s award will be presented at the Fall Institute on October 20, 2006. Please submit your nomination (explaining your choice in 100 words or less) to Lynda Robbins at ljrobbinsesq@verizon.net
THE FMQ WANTS YOU!
The Family Mediation Quarterly is always open to submissions, especially from new authors! Every mediator has stories to tell and skills to share. To submit articles or discuss proposed articles call Les Wallerstein (781) 862-1099 or email wallerstein@socialaw.com ITS TIME TO SHARE YOUR STORY! Continued on next page
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33 HELP BUILD AN ARCHIVE! In the early summer of 2006, the Healey Library at the University of Massachusetts in Boston agreed to create an archive of Massachusetts dispute resolution materials. Two key goals are to preserve our history and make materials available for research purposes. To date six boxes have been donated by John Fiske and Jerry Weinstein. The scope of interest in Massachusetts mediation materials is broad. It ranges from originals and copies of meeting agendas and minutes, budgets, treasurer’s reports, committee reports, correspondence, publications, fliers, posters, photographs, advertisements and announcements. We need your help to maximize this opportunity to preserve the history of mediation in Massachusetts. Please rummage through your office files, attics, basements and garages. If you discover materials that you are willing to donate please contact Les Wallerstein at wallerstein@socialaw.com.
COMMUNITY DISPUTE SETTLEMENT CENTER Building Bridges • People to People • Face to Face 60 Gore Street Cambridge, MA 02141 Established in 1979, the CDSC is a private, not-for-profit mediation service dedicated to providing an alternative and affordable forum for resolving conflict. CDSC also provides training programs in mediation and conflict management to individuals and organizations. For more information please contact us at (617) 876-5376, or by email: cdscinfo@communitydispute.org, or at our web site: www.communitydispute.org.
MASSACHUSETTS COLLABORATIVE LAW COUNCIL, INC. The MCLC offers legal representation to people in conflicts who share a commitment to resolving disputes without litigation. To find out more, or to locate a collaborative lawyer near you, visit MCLC on-line at www.massclc.org.
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JOIN US MEMBERSHIP: MCFM is open to all practitioners and friends of family mediation. MCFM invites guest speakers to present topics of interest at four, free, member 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 serve on any MCFM Committee. All members are listed online at MCFM’s web site, and all listings are “linked” to a member’s email. Annual membership dues are $90, or $50 for full-time students. Please direct all membership inquiries to DeLaurice Fraylick at <masscouncil@mcfm.org>. REFERRAL DIRECTORY: Every MCFM member is eligible to be listed in MCFM’s 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 annually and mailed to all Massachusetts judges, and to each listed member. The most current referral directory is also available online at www.mcfm.org. The annual Referral Directory fee is $60. Please direct all referral directory inquiries to Jerry Weinstein at <JWeinsteinDivorce@comcast.net>. PRACTICE STANDARDS: 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 MCFM’s Standards of Practice. MCFM’s Standards of Practice are available online at www.mcfm.org. CERTIFICATION & RE-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. MCFM’s certification and re-certification requirements are available on-line at www.mcfm.org. Every MCFM certified mediator is designated as such both online and in the printed Referral Directory. Certified mediators must have malpractice insurance, and certification must be renewed every two years. Only certified mediators are eligible to receive referrals from the Massachusetts Probate & Family Court through MCFM. Certification applications cost $150 and re-certification applications cost $75. For more information contact Lynn Cooper at <lynnkcooper@aol.com>. For certification or recertification applications contact DeLaurice Fraylick at <masscouncil@mcfm.org>.
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DIRECTORATE MASSACHUSETTS COUNCIL ON FAMILY MEDIATION, INC. 23 Parker Road, Needham Heights, MA 02494-2001 Local Telephone & Fax: (781) 449-4430 email: masscouncil@mcfm.org web site: www.mcfm.org TOLL FREE: 1-877-777-4430 OFFICERS President
Lynda J. Robbins, 11 Summer Street, Chelmsford, MA 01824 (978) 256-8178, ljrobbinsesq@verizon.net
Vice-President
Kathleen A. Townsend, Divorce Mediation Group, Inc., 1441 Main Street, Springfield, MA 01103, (413) 733-4444, kathleen@divmedgroup.com
Vice-President
Marion Lee Wasserman, 199 Wells Avenue, Suite 201, Newton, MA 02459, (781) 449-4815, marionlw@comcast.net
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, S. Tracy Fisher, Howard I. Goldstein, Mary T. Johnston, Michael L. Leshin, Harry E. Manasewich, Steven Nisenbaum, Patricia A. Shea, Mary A. Socha, 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, email: masscouncil@mcfm.org
Family Mediation Quarterly