winter03

MCFM

FAMILY MEDIATION QUARTERLY Vol. 2 No. 1

Winter 2003

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

From The President An important advantage of membership in the Massachusetts Council on Family Mediation is the opportunity to attend educational meetings held throughout the year. The well-attended presentations held in October and December generated lively discussions while providing ample time to address questions to the expert speakers.

While MCFM is a statewide organization, our members are primarily concentrated in Boston and its surrounding suburbs. As a result, these education programs have been held in the greater Boston area.

However, we recognize that our members located farther from Boston, such as in the Worcester area or western Massachusetts, cannot easily attend these meetings. With the aim of being more inclusive, we plan to repeat some of our presentations at locations farther from Boston.

As the first step in the direction of expanding our outreach, James McCusker, CPA will be duplicating his October program regarding alternative strategies for reaching a "fair deal" for marital support and the balance between child support and alimony. The meeting (which may precede your receipt of this FMQ issue) will be held on January 30th at 8:15 a.m. in the Chelmsford office of Lynda Robbins, who has graciously invited area members to attend.

We need your help to meet our goal of expanding our programs statewide. Can you recommend a speaker in your out-of-GreaterBoston area? Would you be willing to sponsor a meeting at your location, be it South Shore, mid-state, or elsewhere beyond metropolitan Boston. Please contact the MCFM program organizers, John Fiske at <jfiske@hfwr.com> or David River at <d.river@divorcemed.com>, or me at <maryt.johnston@erols.com> with your thoughts, ideas, and comments. We look forward to working with you to generate mediation interest and information statewide.

Family Mediation Quarterly

Contents 1 Paradoxes of Mediation, Part I of II

By David Hoffman 7 De Facto Parents: State of the Law in Massachusetts

By Joyce Kauffman 10 How Much is a Child Worth?

By James McCusker 13 New Beginnings

By Barry Shelton 15 ADR Court News

By Christine Yurgelun 17 Practice Tips: 1A Affidavits

By Les Wallerstein 19 Juggling Act: Handling Divorce Without Dropping the Ball Reviewed by Mark Zarrow 21 PC From A to Z

By Bette Winik & Jane Appell 23 Mediating a Child Removal Case

By Howard Goldstein 27 28 29 30

MCFM News Announcements Corrections Letters to the Editor

31 34 35 36

Editorial Join Us Directorate Editor's Notice

MCFM © 2003 All Rights Reserved

Winter 2003 • Vol. 2 No. 1

1

PARADOXES OF MEDIATION, PART I OF II

by David A. Hoffman According to Zen Buddhism, one way enlightenment can be achieved is by holding two contradictory thoughts in the mind simultaneously. This, I have found, is more easily said than done. Perhaps I am handicapped in this endeavor by virtue of professional training: as a lawyer (or, as the joke goes, recovering lawyer), my mental functioning has shifted decidedly to the left brain. In fact, I know one lawyerturned-mediator that describes law school as a process in which the left brain circles around the right brain and eats it.

If that is the case, learning to practice mediation has presented me with the task of recovering the right-brain function - the place where creativity and non-linear thinking flourish. Indeed, restoring the balance between the two hemispheres may be necessary to succeed at mediation because the work is inherently difficult, multi-dimensional, and requires not only logic but also inventiveness and a tolerance for ambiguity.

Managing complexity As mediators, we must hold in the mind simultaneously the perspective of each of the parties perspectives that often have little in common with each other and are usually contradictory or mutually exclusive. As we manage the interactions of these parties, we find ourselves enmeshed in a breathtakingly intricate matrix of psychological issues, negotiation dynamics, communication problems, subtleties of inflection and body language, barriers of gender, culture, race, and class,

and disagreements about legal issues and the facts that gave rise to the dispute. The very complexity of the work is one of the things that make it so appealing: no matter how much experience we have, no matter how skilled we may become, mastery will always elude us.

For people who love challenges, mediation is a natural calling. The division of labor between left brain and right brain is a good metaphor for considering the paradoxes of mediation because it exemplifies the way in which, as mediators, we often need to be engaged in multiple - often mutually exclusive - activities simultaneously.

I am also struck by the similarity in these paradoxes to those identified by psychotherapist and scholar Sophie Freud in her article, "The Paradoxes of Parenthood: On the Impossibility of Being a Perfect Parent."(1) Freud's article describes the missteps that we make as parents as inevitable because of the conflicting responsibilities involved in raising children. For example, we must protect them, while at the same time letting them make their own mistakes. We must praise and encourage them, but without overdoing it, so that they will learn how to manage criticism. Freud also identifies the dilemma of "fostering simultaneous attachment and separation" as "perhaps the most difficult parental task": "It involves promoting individuation and autonomy, essential life goals, while also offering the child an experience of

Family Mediation Quarterly

2 attachment profound and meaningful enough to evoke a lifelong capacity to love, feel, and care. . . . [This is a] paradox of parenthood: disenchantment with and rebelliousness against parents is a necessary part of the relationship; a [parent-child] relationship is flawed if it remains conflict free and apparently totally harmonious." (Freud, p. 183.)

been astonished to hear mixed reviews on mediators whom I regard as some of the most skilled practitioners in the field.

"Perhaps the mediator had a bad day," I thought. But more often, I suspect, the mediator's style did not fit the particular people or circumstances of the case - the techniques they used were a mismatch for one or more of the parties or their lawyers.

The moral of Dr. Freud's For people who love challenges, article is that perfection in mediation is a natural calling parenting is unattainable because there is no perfect balance of these conflicting duties. Or perhaps the inherent tensions in the Certainly, this is true from the standpoint of perspectives or negotiation styles of the our children who, as silent critics or noisy parties made success impossible. In short, detractors, often tell us we're doing our the mediators may have found themselves work as parents wrong if we're doing it in a situation where no amount of skill right. And it is unattainable in our own would have sufficed. eyes as well. Our children are mortal and therefore fallible - in a word, imperfect. Striving for perfection I do not Likewise, our efforts as parents are underestimate the difficulty of getting it all inherently imperfect. right - indeed, the complexity of the work is one of the premises of this article. What Similarities to mediation Is our work as I am suggesting is that by exploring the mediators different? It seems to me that fundamental and to some extent mediators try to balance some of the same irreconcilable tensions in what we do, we tensions and deal with some of the same mediators will gain a fuller understanding paradoxes that parents encounter. For of how very difficult - indeed, sometimes example, if the parties in a mediation leave impossible - our work is, thus enabling us the process annoyed with us but to do a better job while relinquishing the reconnected with each other, have we ambition of doing a perfect one. We all succeeded or failed? Do we not have to know the saying about the perfect being the manage the tension in mediation between enemy of the good. So it is with attachment and separation, relationship and mediation. autonomy?

So what are these irreconcilable tensions I have had occasion over the years to these paradoxes, if you will? In Part I of observe some gifted mediators at work and this article, I outline the first five of 10 to talk with lawyers about their experience micro-level paradoxes, describing tensions with these same mediators. And I have Continued on next page

Winter 2003 â&#x20AC;˘ Vol. 2 No. 1

3 in the practice of mediation. In Part II, which will appear in the spring issue of the Family Mediation Quarterly, I will describe the five more micro-level paradoxes, along with a group of macro-level paradoxes for the field of mediation as a whole.

MICRO-LEVEL PARADOXES Mediator "pressure" vs. party autonomy Robert Baruch Bush and Joseph Folger have pointed out the ways in which mediators unavoidably affect or steer the process of mediation, even when they believe that their exclusive role is to carry out the parties' intentions.(2) Their solution to this dilemma is to participate in the process in such a way as to promote empowerment and recognition.

For other mediators, the solution is to promote settlement. Their dilemma is different: how to manage the tension between parties, each of whom wants the mediator to apply settlement pressure to their opponents (through reason, appeals to emotion, and other means) but not to them.

In his article "Mediator Pressure and Party Autonomy: Are They Consistent with Each Other," mediator and professor David Matz notes that "for a mediator to encourage the free expression of a party's will, the mediator may (and in some circumstances must) . . . pressure a party to enable that party to achieve autonomy."(3) For some mediators, there is a paradox within this paradox, because often the most effective "pressure" is simply agreeing with the parties. As mediator Robert Benjamin has noted in his pair of articles on mediators as "tricksters," mediators sometimes use what

are known among psychotherapists as "paradoxical interventions" to move the process along; that is, suggesting one thing while meaning another.(4) For example, when we talk with a party who is hell-bent on proving her case in court, we might discuss all the advantages of a trial because discussing the disadvantages would simply deepen her resistance to settlement. Only by first exploring and supporting the parties' thinking and encouraging them to hold on to their entrenched positions can the mediator move them to allow themselves to consider other options.

Thus is the paradox: intensifying the commitment to a stated course of action allows for the lessening of that commitment. Conversely, [disagreeing with the parties' views] will only serve to bolster the resistance.(5) As a mediator, I have found that in the final, hard-bargaining stage of a mediation in which the dispute often boils down to money and a zero-sum negotiation (after full consideration of the possibilities for mutual gains, integrative bargaining, and "expanding the pie"), I am often skating a fine line between the parties' desire to get the deal done and their annoyance with me for extracting yet another concession from them. This situation presents an equally paradoxical dilemma for the parties, because they must skate the line, in their communications with me, between resisting concessions firmly enough to achieve their bargaining objectives without overdoing it and sabotaging the opportunity for a settlement.(6) Mediator "presence" vs. party control Another paradox can be found in a

Family Mediation Quarterly

4 phenomenon noted by a number of mediation clients is that they look for mediators: the positive impact that a mediators who are knowledgeable, only to mediator's "presence" can have as a factor find that mediators are often reluctant to in promoting resolution.(7) The reasons for share with them what they know. Divorce the effectiveness of a mediator's presence mediators, for example, acquire a good are not only difficult to define, but they deal of knowledge over the years about the also vary from one mediator to the next. various arrangements that lawyers and the Some mediators seek, by their demeanor, to courts consider customary with regard to "bring peace into the room."(8) Other asset division, custody, alimony, and child The parties often prefer mediators may, by virtue of their charisma, support. credibility, or charm, create an mediators who have such knowledge, but environment in which the parties find themselves No matter how much experience motivated to achieve we have, no matter how skilled we settlement.

may become, mastery will always elude us

And yet, as mediator Gary Gill-Austern has pointed out, the very effectiveness of the mediator's presence is problematic: "The mediator's role is complex, even paradoxical. A mediator must be remarkably and uniquely present - a full participant. At the same time, and more fundamentally, the mediator must be present in a manner that embodies an understanding that she or he has no significance at all to the dispute and its resolution.... The mediator must function within a paradox: how to be central and matter not at all."(9) There is the further paradox of mediator "presence" that mediators try to be present in the moment (putting to one side any concern about the future) while, at the same time trying to attend to the strategic direction and effectiveness of their interventions - that is, seeking to influence the future while simultaneously ignoring it.

Mediator knowledge vs. party expertise One of the most frustrating paradoxes for

we mediators send the parties off to lawyers to get answers to their questions because, when serving as mediators, we are not permitted to give legal advice or engage in the practice of law. (Even if we are lawyers, ethical principles prohibit us from mixing the two roles, and those mediators who are not lawyers are also prohibited by statute from practicing law.)

Thus, parties who came to us in order to minimize the role of lawyers in the resolution of their dispute are being sent to the law offices they sought to avoid. The hoped-for result of these referrals is better informed parties. But often the result is to inject a higher degree of contentiousness into the process - thus undermining one of the reasons the parties chose mediation.

Confidentiality: keeping secrets vs. "noisy" communication Mediators usually begin a mediation session by assuring the parties that their Continued on next page

Winter 2003 â&#x20AC;˘ Vol. 2 No. 1

5 communications will be confidential - not only from outsiders but also from each other, if the mediator meets with the parties separately and they disclose information they do not wish the other party or parties to know. The conventional wisdom is that

confidences while at the same time disclosing them - albeit "noisily" - to the other side. "Mediators," write Brown and Ayres, "can productively control the flow of information between the parties by filtering or inserting noise into their private disclosure."(13) Mediators By exploring the fundamental and learn to manage this tension with time and experience, to some extent irreconcilable and the parties learn, during tensions in what we do, we the course of the mediation, they can trust the mediators will gain a fuller whether mediator to manage it understanding of how very difficult successfully. The parties - indeed, sometimes impossible - gauge, to some degree, what the mediator is doing our work is in meetings with the opposing party by what she confidentiality fosters candor, which in does with them. Although the mediator turns fosters settlement.(10) Ethical rules can bargain with the parties for leeway in for mediators also require making disclosures, there is usually a need, confidentiality.(11) And yet some even without such bargaining, for noisy, commentators have noted that the filtered, indirect communications by the mediator's success in settling cases may mediator that will enable the parties to depend, at least in part, on her ability to navigate their way to a settlement.(14) make indirect disclosures to each of the parties concerning their opponent's Empathy vs. candor Ken Cloke has Mediators make such described empathy and honesty as two of position.(12) disclosures (assertedly without violating the principal attributes of effective ethical rules) by cloaking the disclosures in mediators.(15) And while it is possible for what Jennifer Brown and Ian Ayres a mediator to be both empathic and honest describe as "noise" - a smoke screen of at the same time, the effort calls for hemming, hawing, and "what-if"-ing - that exquisite balance. For example, in a allows the parties to discern more recent mediation in which such balance effectively each other's perspectives and was not achieved, I suggested to divorced bargaining positions, while at the same parents who were engaged in a tug-of-war time protecting them from being asked to over their kids that each of them might be make bargaining concessions that are not feeling a personal stake - beyond the best interests of the children - in winning. likely to be reciprocated.

Unready to hear this, both denied caring The paradox here is that the parties are which of them "won," and I came away counting on the mediator to keep their with the feeling that I had perhaps tipped Family Mediation Quarterly

6 the balance too hard in the direction of honesty.

Through Empowerment and Recognition 75 (1994).

Empathy requires engagement; honesty requires objectivity and detachment.

Engagement fosters safety, while candor may create difficulty. The paradox is to be both engaged and detached at the same time.

3. D. Matz, Mediator Pressure and Party Autonomy: Are They Consistent with Each Other, 10 Negot. J. 359, 362 (1994).

A number of mediators describe mediation as "making a safe place for a difficult conversation."(16) Thus, the mediator's job is to strike a balance between the difficult and the safe in a way that motivates change and the taking of fresh perspectives, while at the same time creating a level of comfort that fosters resolution.

David A. Hoffman is a mediator, arbitrator and attorney at The New Law Center, with offices in Newton and Boston. He wishes to thank Prof. Frank Sander, Beth Andrews, Diane DiLeo, Melissa Filgerleski, and Lily Hoffman-Andrews for their comments on a prior version of this article, and Bhavani Murugesan for research assistance. David can be contacted at (617) 439-4700, or by email at <DHoffman@TheNewLawCenter.com>.

Footnotes 1. S. Freud, The Paradoxes of Parenthood: On the Impossibility of Being a Perfect Parent, in My Three Mothers and Other Passions 178 (1988).

2. R. Bush & J. Folger, The Promise of Mediation: Responding to Conflict

4. R. Benjamin, The Constructive Uses of Deception: Skills, Strategies and Techniques of the Folkloric Trickster Figure and Their Application by Mediators, 13 Mediation Q. 3 (1995); R. Benjamin, The Mediator as Trickster: The Folkloric Figure as Professional Role Model, 13 Mediation Q. 131 (1995).

5. R. Benjamin, The Constructive Uses of Deception: Skills, Strategies and Techniques of the Folkloric Trickster Figure and Their Application by Mediators, 13 Meditation Q. 3, 10 (1995).

6. Prof. Frank Sander has also noted the risk that mediators may feel pressured by the tyranny of "settlement rate" statistics as a form of market pressure on mediators to promote settlement at the expense of other values. F. Sander, The Obsession with Settlement Rates, 11 Negot. J. 329 (Oct. 1995).

7. D. Bowling & D. Hoffman, Bringing Peace into the Room: The Personal Qualities of the Mediator and Their Impact on the Mediation, Negot. J. 5 (2000); L. Gold, Influencing Unconscious Influences, 11 Mediation Q. 55 (1993); G. GillAustern, Faithful, J. of Disp. Resol. 343 (2000).

8. D. Bowling & D. Hoffman, supra.

Continued on page 18

Winter 2003 â&#x20AC;˘ Vol. 2 No. 1

7 DE FACTO PARENTS State of the Law in Massachusetts

by Joyce Kauffman The American Bar Association estimates after the dissolution of her relationship that there are at least six to ten million with the child's biological mother. The children being raised by lesbian, gay and aunt and the lesbian co-parent were bisexual parents in the United States. determined to fit the definition of "de Only a handful of jurisdictions across the facto" parent, one who has no biological country give legal recognition to the relation to the child, but has participated in relationships between the non-biological or the child's life as a member of the child's non-adoptive parent and thechildren. Here family. The de facto parent resides with in Massachusetts, we are fortunate that the the child and with the consent and court recognizes the rights of unmarried encouragement of the legal parent, cohabitants (heterosexual or homosexual) performs a share of caretaking functions at to adopt one another's children. least as great as the legal parent....[A de Unfortunately, not everyone can or does take advantage Respect the relationships created of this opportunity.

by

the

parties

prior

to

the

A breakdown of a dissolution of the partnership lesbian/gay relationship involving children who do not have a legal relationship to one of their facto parent] shapes the child's daily parents can wreak havoc in the lives of routine, addresses his developmental those children and deprive them - and their needs, disciplines the child, provides for non-legal parent - of a very important his education and medical care and serves as a moral guide. ENO v. LMM, 429 Mass. relationship.

824, 829 (1999).(1) Until the decisions in Youmans v. Ramos, 429 Mass. 165 (1999), and ENO v. LMM, The criteria established by the court are 429 Mass. 824 (1999), the prevailing law strict and to date, narrowly defined. More was that a "legal stranger" to a child could than one attorney has questioned whether not obtain visitation or custodial rights to a the father in a traditional marriage would child he or she had parented, due to lack of actually fit these same criteria, but for his standing. All that has changed. In biological relation to the child. There have Youmans, the court affirmed a lower been no reported cases applying the de court's decision granting visitation to an facto parent criteria to determine what facts aunt who had parented her deceased sister's or levels of proof are sufficient for a litigant daughter. In ENO, the court affirmed a to satisfy the test. There have, however, decision allowing visitation rights for a been several lower court decisions of lesbian co-parent who was not the interest. Legal parents and de facto biological or adoptive parent of the child parents have entered into agreements,

Family Mediation Quarterly

8 subsequently made orders or judgments of the court, in which they have agreed to shared legal custody. To date, however, no court has granted legal custody to a de facto parent. On the other hand, more than one lower court has ordered a de facto parent to pay child support to her See, e.g., Connolly v. children.(2) Michelle (Lawyers Weekly No. 15-00402) (Kagan, J.) (Middlesex Probate & Family Court, Docket Nos. 99E-0183 and 99E-0184).

It is within this context that the mediator should approach a custody dispute involving a lesbian/gay couple, where one of the parents does not have a legal relationship to the child. The legal parent does have a distinct advantage in this situation; it is the non-legal parent who must assert and prove his or her de facto parent status. And, absent an agreement to shared legal custody, it is unlikely that a court will grant legal custody to a de facto parent.(3) Lesbian and gay couples who decide to have children do so in an extremely conscious and thoughtful way - children come into these relationships through reproductive technology, domestic and international adoption, surrogacy, or from a prior heterosexual relationship. When the adult relationship breaks down, the emotional impact is often devastating, particularly where one of the parties does not have a legal relationship with his or her children. The legal parent has an extraordinary amount of power under the law; the non-legal parent is far more vulnerable. The power balance can be further skewed if one of the parties is

fearful of being exposed as lesbian/gay in the more public forum of the court.

Tips for the Mediator: Determine the existence of legal relationships between each party and the child/ren. Be aware of the power imbalance the legal relationships (or lack thereof) create. Familiarize yourself with the state of the law for lesbian/gay families (e.g., availability of co-parent adoption, effect of adoption, de facto parent caselaw, enforceability of cohabitation agreement and co-parenting agreements).

Information can be obtained through Gay and Lesbian Advocates and Defenders (GLAD) <http://www.glad.org> and the Massachusetts Lesbian and Gay Bar Association (see web site address below).

Advise both parties to seek competent legal advice from attorneys experienced in this area of the law. [that the Massachusetts Lesbian and Gay Bar Association has an on-line directory at <http://www.mlgba.org>. GLAD also provides referrals (617) 426-1350].

Become familiar with the document entitled "Protecting Families: Standards for Custody Disputes in Nontraditional Families," which can be found on-line at <http://www.familypride.org/library>.

Educate yourself about the national and local organizations working on lesbian and gay issues: Family Pride at <http://www.familypride.org>, COLAGE (Children of Lesbians and Gays Everywhere) at <http://www.colage.org>, National Center for Lesbian Rights at <http://www.nclrights.org>, Lamda Legal Continued on next page

Winter 2003 â&#x20AC;˘ Vol. 2 No. 1

9 Defense at <http://www.lambdalegal.org>, Parenting Services at Fenway Community Health at <http://www.fenwayhealth.org>, and GLAD and MLGBA, referenced above.

Respect the relationships created by the parties prior to the dissolution of the partnership. Remember the children and the importance to them of being able to continue the parenting relationships they have enjoyed. Understand that the person who can best answer the question is the child. Don't be afraid to ask both parties: "If I were to ask Johnny who his parents are, what would he say?"

Footnotes 1. Only a very few jurisdictions around the country recognize the rights of such a person. See, e.g., JAL v. EPH, 453 Pa.

Super. 78 (1996); Holtzman v. Knott, 193 Wis. 2d 649, cert. denied, 516 U.S. 975 (1995); AC v. CB, 113 N.M. 581 (1992).

2. The decisions ordering child support use the Child Support Guidelines to determine the level of support.

3. Certainly, many would argue, there are facts that would support the grant of legal custody to a non-legal de facto parent; e.g., where the legal parent is unfit. This case has not yet been litigated in Massachusetts.

Joyce Kauffman is an attorney who practices in Cambridge. She can be contacted at (617) 577-1505, or by email at <JoyceKauffman@mindspring.com>.

"All happy families resemble one another, but each unhappy family is unhappy in its own way."

Leo Tolstoy, Anna Karenina Family Mediation Quarterly

10 HOW MUCH IS A CHILD WORTH?

by James McCusker The worth of a child in humanistic terms is a question that represents a conundrum for all time. In the realm of divorce taxation, however, it's a riddle that can be unlocked with a little planning. Since the passage of the Tax Reform Act of 1997, the true dollar worth of the child dependency exemption has become obscured by an array of related credits, deductions and associated "phase-outs." Phase-outs represent income ranges between which the associated deductions and credits begin to lose value. Thus, it is no longer as simple as giving the dependency exemption to the spouse in the higher tax bracket.

Descriptions

Tax Credits /Deductions

Tax Savings

AGI Phaseout Ranges

Dependency Exemption

$3,000

$810

Single $137,300$259,801HoH

$171,650-$294,151-

Child Tax Credit (Children 17 & under)

$600

$600

Single $ 75,000HoH $ 87,000-

Hope EducationCredit (Tuition 1st 2 years post-secondary)

$1,500

$1,500

Single $ 41,000HoH $ 51,000-

Lifetime Learning Credit (Tuition after 1st 2 years post-secondary)

$1,000

$1,000

Single $ 41,000HoH $ 51,000-

Student Loan Interest

$2,500

$675

Single $ 50,000HoH $ 65,000-

Deduction for Qualified Tuition

$3,000

$810

Single $ 65,000-HoH $ 65,000-

With this added complexity comes opportunity. If used properly, the dependency exemption can now be worth thousands of dollars in tax savings. What follows is a short walk through the maze of child related tax deductions and credits.

Winter 2003 â&#x20AC;˘ Vol. 2 No. 1

11 Above is a tax information table of some of the most common child related deductions and credits for the year 2002. The phase-outs contained in the table are based on Adjusted Gross Income (AGI) levels. The phase-outs in this table are for Single and Head of Household (HoH) taxpayers, which should be the filing statuses initially encountered in divorce cases. The reduction formulas vary by deduction, but usually the phase-out is computed on a pro-rata basis over a range Divorcing couples should think of income.

Where appropriate, the lower and twice before blithely assigning upper limits of that income those exemptions range are provided. Tax savings on deductions are computed at an assumed tax rate of 27%, whereas tax credits represent a "dollar-for dollar" reduction of the tax liability.

Note: In the Deduction for Qualified Tuition category above, $65,000 does not represent a phase-out range. This is because the Deduction for Qualified Tuition is not available for either Single or HoH filers when their income reaches $65,000.

The particulars having been provided, a brief example will help illustrate how the value of these deductions and credits can vary depending upon an individual's tax attributes.

In the first scenario, assume that the husband's AGI is $175,000 and he has a marginal tax rate of 35%, while the wife's AGI is $35,000 and she has a marginal tax rate of 15%. They have 2 children ages 12 and 19 years, and the wife is the custodial parent. The oldest child is in college and has incurred tuition expenses totaling $10,000 and student loan interest of $2,500. The spouse claiming the dependency exemption will pay all educational costs. In this scenario, assume that the husband takes both dependency exemptions.

Scenario #1 - Tax Savings Dependency Exemption Child Tax Credit Hope Scholarship Credit Education Loan Interest Total Tax Savings

Husband $1,428 $ 0 $ 0 0 $ $1,428

Family Mediation Quarterly

Wife $ $ $ $ $

0 0 0 0 0

Total $1,428 $ 0 $ 0 $ 0 $1,428

12 Because of the husband's elevated income level, he is unable to take advantage of the Child Tax Credit or the related education credits/deductions. He also has lost a portion of the Dependency Exemption due to income limitations. Even though the wife is the custodial parent, she cannot take advantage of these credits/deductions because they are all tied to taking the associated Dependency Exemption.

In the second scenario, the fact pattern is reversed with the wife taking both dependency exemptions.

Scenario #2 - Tax Savings Dependency Exemption Child Tax Credit Hope Scholarship Credit Education Loan Interest Total Tax Savings

Husband $ 0 $ 0 $ 0 0 $ $ 0

Wife $ 900 $ 600 $1,500 $ 375 $3,375

Total $ 900 $ 600 $1,500 $ 375 $3,375

In this second example, even though the wife is in a lower marginal tax bracket than the husband (15% vs. 35%), the tax savings are almost $2,000 greater than in the first scenario. Because of the wife's lower income level, she is not subject to any of the phaseouts and can take full advantage of the Dependency Exemption and all associated deductions and credits.

In most divorce situations these deductions and credits will come into play for a number of tax years. This has the effect of compounding the tax benefits if the Dependency Exemptions are allocated properly. The key point to remember is that in most cases a parent cannot take child-related tax credits/deductions unless s/he also takes the Dependency Exemption. Divorcing couples should think twice before blithely assigning those exemptions. The implication for divorcing couples can mean thousands of tax dollars saved -- or lost. Parents and their mediator should remember this is incremental money, savings that is taken from the IRS and placed back with the parents. How this booty will be shared between the parties will be left to the crack negotiating skills of the mediator.

Jim McCusker is a CPA and a certified financial planner. His articles explore tax issues that bear on family mediation. Comments or suggestions are invited. He can be contacted at (978) 256-1323, or by email at <James@McCuskerAssociates.com>

Winter 2003 â&#x20AC;˘ Vol. 2 No. 1

13 NEW BEGINNINGS

by Barry Shelton New Beginnings for Singles, Inc. is an association of nine individual supportgroup ministries for single adults in New England. The ministries are sponsored by and meet at churches, and they are open to people who are separated, divorced, widowed or never married.

Each interfaith group meets weekly and is led by a staff person from that church. Each ministry provides self-help groups implemented by trained facilitators and a planned program of speakers and Grieving presentations. retelling

Level 1 is for those who are in the early stages of grief. Currently at Wellesley Hills, there are three Level 1 groups: Newcomers, "Good Grief" and Widows/Widowers. "I'm Single Again" is a Level 2 group for people who are learning to deal with ongoing issues of being alone as they go through the grieving process. The Level 3 group, "Moving On," is for those who have processed grief

requires reflection and until people are able to close the past sufficiently for them to open to the future

The purpose of New Beginnings is to provide a safe and supportive place in which single adults who have suffered the loss of a relationship can meet. New Beginnings is a starting point, focusing on the emotional, physical, intellectual and spiritual issues that single adults face. As a strictly self-help group, the organization does no counseling. New Beginnings is a fellowship of people who have experienced dramatic changes in their lives and are in transition.

People gather at the Wellesley Hills Congregational Church under the directorship of Dr. David Stryker every Thursday night at 7 o'clock year-round, holidays included. They come to share their experiences of losing loved ones and learning to begin life anew. Newcomers are advised to arrive a few minutes beforehand to attend a brief orientation and find out which group is most appropriate for them.

but are still looking for support or friendship.

One of the strengths of the Wellesley Hills group is the continuity of David Stryker's directorship. An expert on bereavement, David has been leading New Beginnings since its inception in 1990 and has taught in the Psychology Department at Suffolk University.

Another strength of New Beginnings is the commitment of up to 20 volunteers. With the help of these volunteers, David administers and implements support groups and programs that may help 50 or more people per week.

According to Shakeh, who has been a volunteer and a facilitator at New Beginnings since 1999, "I always get such positive feedback when I help someone else." She says, "Every week some new

Family Mediation Quarterly

14 layer peels away, and I understand more about the process of grieving and about myself."

The number of New Beginnings members fluctuates between 75 and 100 people, including a number of men who attend.

"It's important for men," David suggests.

"In many relationships women often act as the social connectors. When a marriage ends, for example, friends sometimes get caught in the middle and men lose contact.

Lacking friends they can talk to, men may have a more difficult time."

Support groups at New Beginnings create a place where people can share the stories of their relationships and their losses.

Grieving requires reflection and retelling until people are able to close the past sufficiently for them to open to the future.

Forgiving may require even more time and self-evaluation. Progress is rarely linear, and many journeys back into the past are needed. This telling and retelling in support groups evokes shared experiences and feelings that reinforce their commonality that we are not alone and separate.

Everyone is invited to speak, but not obliged to. Strict confidentiality is insisted upon, and the giving advice is

discouraged.

The programs that follow the support groups tend to be positive and interactive.

They cover a range of topics and themes including travel, recreation, financial planning and relationships. Talent Night is a treat, for example, a stand-up comedy routine while demonstrating cake decoration. Although New Beginnings is primarily a support organization, there are also outside social activities such as tennis, bowling, concerts, theater and pot-luck gatherings. The yearly membership dues are only $30. For information about New Beginnings in Wellesley, call (781) 2358612. For information about other New England New Beginnings groups, contact The Association of New Beginnings Singles Ministries on-line at <www.geocities.com/New Beginnings4Singles>.

Barry Shelton is a family mediator in Wellesley who helps facilitate the support group "Good Grief" for New Beginnings.

He can be contacted at (781) 237-0541, or by email at <sheltonbls@attbi.com>.

"Past and to come seem best; things present worst."

William Shakespeare, King Henry IV Winter 2003 â&#x20AC;˘ Vol. 2 No. 1

15

ADR COURT NEWS

by Christine W. Yurgelun ITEM # 1 Pursuant to Rule 3(d) of Supreme Judicial Rule 1:18 (the Uniform Rules on Dispute Resolution), the Probate and Family Court Department has designated one court staff member in each Division as the Local Dispute Resolution Coordinator, as follows: The Local Dispute Resolution Coordinator serves as an important liaison between the Administrative Office, the approved providers of ADR services, the public, and the Divisionâ&#x20AC;&#x2122;s judges and other court staff. Major duties required of individuals in this position include: (1) coordination of referrals of court cases to approved programs, as County

DR Coordinator

Telephone

Barnstable Berkshire Bristol Essex Franklin Hampden Hampshire Middlesex Norfolk Plymouth Suffolk Worcester

Michael Stevens Clement Ferris Tricia Poole Julie Matuschak Jodie Nolan Charles Eliopoulos Mary Lynn Carroll Maria Nannini Edmund Harrington David Nolan Kathleen Kavey Thomas Murray

(508) 375-6718 (413) 442-6941 (508) 824-4004 ext. 242 (978) 744-1020 ext. 324 (413) 774-7011 (413) 748-7786 (413) 586-8500 (617) 768-5922 (781) 326-7200 ext. 237 (508) 897-5429 (617) 788-8375 (508) 770-0825 ext. 271

required; (2) distribution of written materials designed to educate litigants regarding Alternative Dispute Resolution (ADR) processes and specific information regarding approved programs; and (3) maintenance and reporting of relevant data and information regarding cases which have been referred for ADR services.

In addition, the Local Dispute Resolution Coordinators meet with Christine Yurgelun each quarter. These meetings provide opportunities for court personnel to share insights about successful methods of informing litigants and attorneys about ADR options and the approved providers. The next two meetings now scheduled in 2003 will be held on March 21st and June 13th.

ITEM # 2 On November 22, 2002, Tommy G. Thompson, Secretary of the U.S. Department of Health and Human Services (HHS), announced the recipients of the departmentâ&#x20AC;&#x2122;s annual Adoption Excellence Awards. We are pleased that the Massachusetts

Family Mediation Quarterly

16 Coalition for Permanency for Children (MCPC) was selected as one of the award winners, included in the "judicial or child welfare system improvement" category, for helping foster children move to permanent, stable and loving homes.

MCPC is a multi-disciplinary volunteer group with representation from the Probate and Family Court and the Juvenile Court Departments, public/private child welfare agencies, attorneys and community advocates as well as birth, foster and adoptive families. As described in the HHS press release, MCPC "developed a permanency mediation model Massachusetts is now â&#x20AC;&#x153;a national which offers an alternative to model for permanency mediationâ&#x20AC;? contested court proceedings.

While a contested legal process takes an average two to three years to resolve permanency, a mediated permanency agreement takes three to five months after the parties agree to mediate. In the first year, 450 children were referred to the program and in the second year 518 children were served." Massachusetts is now "a national model for permanency mediation."

The Probate and Family Court Department is proud to have been a collaborative partner in the development of this innovative approach. The Department has participated in the development of qualification requirements for permanency mediators and the creation of protocols for court referrals to permanency mediation service providers.

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.

"Marriage ... resembles a pair of shears so joined that they cannot be separated; often moving in opposite directions, yet always punishing anyone who comes between them."

Rev. Sydney Smith, 1771 - 1845 Winter 2003 â&#x20AC;˘ Vol. 2 No. 1

17 PRACTICE TIPS: 1A AFFIDAVITS

by Les Wallerstein In order to commence a non-adversarial divorce in Massachusetts, (G.L. c. 208 § 1A) the joint petition must be accompanied by "a sworn affidavit... that an irretrievable breakdown of the marriage exists...." While the petition is a court form, the affidavit is not. That fact has left practitioners free to create 1A affidavit text.

Many courts provide prospective divorce petitioners with a package of forms that includes a 1A affidavit. Court affidavits typically re-state some marital information and offer examples of spousal problems.

Some practitioners have expanded these examples to include:

legal need to do so. The statute simply requires petitioners to attest to the irretrievable breakdown of their marriage.

Everything else is extraneous, and can cause unnecessary problems. For example, when a complaint has been "converted" into a joint petition, 1A affidavits are often presented to clients for the first time on the morning of their hearing. Boilerplate "explanations" like those above may ask petitioners to attest to facts that are simply not true.

Additionally, many 1A affidavits including some dispensed by the courts -

- The aforesaid breakdown is Massachusetts abolished the evidenced by a failure of “pains” of perjury long ago communication.

- We no longer are able to meet each other's needs for companionship. provide for notarization. This too is - There has developed a progressive unnecessary. According to Massachusetts estrangement which became intolerable. law, (G.L. c. 268, §1A) "No written - There is a continuing conflict of statement required by law shall be required personalities and a total divergence of to be verified by oath or affirmation before opinion as to lifestyles, goals, and a magistrate if it contains or is verified by a ambitions. written declaration that it is made under the - There is a virtual non-existence of any penalties of perjury." positive personal interactions between us.

- We are now both convinced that any Lastly, it is worth noting that further counseling attempts will prove Massachusetts abolished the "pains" of futile. perjury long ago. Today, there are only - We have become mutually incompatible penalties for perjury. Thus, any affidavit due to increasing differences between our reciting the "pains" of perjury is technically respective outlooks and temperaments. inaccurate.

While divorce petitioners are free to recite this entire litany of marital woes there is no

Following is a sample 1A affidavit, without notarization, that avoids any explanation of

Family Mediation Quarterly

18 why the marriage is irretrievably broken.

"As joint petitioners for divorce, we affirm that there has been an irretrievable breakdown of our marriage, that reconciliation is not possible, and that we both seek a divorce so that we may individually pursue our own separate lives.

Signed under the penalties of perjury."

Continued from page 6 Paradoxes of Mediation Footnotes (continued)

Les Wallerstein is an attorney mediator.

He can be contacted at (781) 862-1099, or by email at <wallerstein@socialaw.com>.

11. See, e.g., Mass. Unif. R. of Disp. Resol.

9(h); AAA-ABA-SPIDR Model Standards of Conduct for Mediators, Standard V.

9. G. Gill-Austern, supra, at 353.

10. For a dissenting opinion, taking issue with the conventional wisdom, see E. Green, A Heretical View of the Mediation Privilege, 2 Ohio State J. of Disp. Resol. 1 (1986).

12. J. Brown & I. Ayres, Economic Rationales for Mediation, 80 Virginia L. Rev. 323 (1994).

13. J. Brown & I. Ayres, supra, at 330.

SPEAK YOUR MIND! EMAIL A LETTER TO THE EDITOR wallerstein@socialaw.com

14. See C. Honeyman, Confidential, more or less, 5 Disp. Resol. Mag. 12 (Jan. 1999).

15. K. Cloke, Mediating Dangerously: The Frontiers of Conflict Resolution 25 (2001).

16. See, e.g., D. Stone, B. Patton & S. Heen, Difficult Conversations: How to Discuss What Matters Most (1999).

Copyright 2002 - ABA, Dispute Resolution Magazine. Reprinted with permission. Part II of this article will appear in the Family Mediation Quarterly, Vol. 2, No. 2, Spring, 2003.

Winter 2003 â&#x20AC;˘ Vol. 2 No. 1

19 JUGGLING ACT Handling Divorce Without Dropping the Ball Reviewed by Mark Zarrow "Juggling Act" is an attractive, boxed set of divorce materials assembled by Roberta Beyer and Kent Winchester. Before opening the colorful package, I imagined a cross between a video game and an Ann Landers advice column. After opening the box, I was a little disappointed. While there are useful parts to the five components of the kit, at $49.95 I'm not sure the sum of its parts is worth the whole. With Juggling Act, what you see is not what you get.

counselors, clergy and other examples are specifically named as possible persons to whom the child may speak. Another especially useful feature is that at the end of each chapter there is a short list of books the child can read on the subject matter raised in that chapter. I think kids from as young as 7 or 8 years to as old as 15 or 16 years may find parts of this booklet useful or comforting.

The other booklet, "Speaking of Divorce: The best part is the booklet "What In The How to Talk with Your Kids and Help World Do You Do When Your Parents Them Cope" is also useful. It too is full of Divorce?: A Survival Guide for Kids." This practical suggestions and hints for parents booklet sets up a series of questions to to help their children through the process. It which the authors offer answers.

For example, chapters have titles With Juggling Act, what you such as "Is the divorce my fault?," "Who will take care of me?," see is not what you get "What do I do about my feelings?," and "Will my parents ever get is organized along similar lines to the Kids' back together?". The answers to these Survival Guide, with chapter headings questions are put forward in plain, easy-to- appearing as potential answers to the read language.

Although framed questions posed. For example, chapter optimistically, the replies also admit the headings include: "It's not your fault," "We possibility that certain conditions may not will always love you," and "Here's how improve over time. For example, to the we'll be living." As with the kids' booklet, question "What if I don't miss my mom or this one emphasizes finding ways to allow my dad?," the authors discuss the fact that the children to express their feelings. For one parent may have been abusive to the example, in the chapter "You can talk about child. They state that the parent may your feelings," the authors provide a improve over time. On the other hand, they comprehensive look at how to allow and explain that the separation or limited encourage children to talk. They also visitation may be permanent. Above all, the encourage parents to tune in to their authors emphasize and encourage children children's feelings, providing a chart to seek out and talk to others about their distinguishing between grieving and signs feelings. If it is not possible for a child to warning that a child is having adjustment speak to a parent, teachers, guidance problems. For the latter, professional help Family Mediation Quarterly

20 is recommended. This booklet also provides a glossary of terms parents might use in discussions with their children, a bibliography of books for divorcing parents to share with their children, a bibliography of adult books on divorce and related subjects, as well as a list of organizations and web sites which parents can access.

While much of the ground covered in this booklet is also presented in the mandatory parenting course that divorcing parents of minor children in Massachusetts are required to take, this booklet will reinforce the materials taught there, as well as serve as a handy resource on how to deal with child-related problems as they arise.

The three remaining kit components are less impressive. The "Keep Track: Calendar for Kids" is simply a non-specific monthly calendar for children. For each month there is a place for including "things to remember," "things to do" and "notes."

Children can fill in the 14 blank calendars with notes as well as the stickers provided.

The "Keep Track: Stickers for Kids" include holidays of all sorts, including Rosh Hashanah, Chinese New Year, Christmas and Ramadan. There are stickers for parties, birthdays, music lessons, school events and simple stickers indicating whether a particular day is mom's or dad's.

At certain ages children may find stickers fun, but a blank calendar serves as well.

"The Mom & Dad Pad: (A Divorce Communication Tool)" is the final component of the kit. Each sheet has a form for reminders, such as medical appointments, requests for scheduling changes, transportation requests, travel

plans, special moments one parent would like to relate to the other and "reality check" which begins, "Our child said: ------. Is this accurate? Let's talk." The pad has a yellow carbon sheet to keep a copy of the message. Importantly, each sheet states clearly that the child should not be used as a messenger. The kit provides envelopes.

Here too, a note pad and a package of envelopes from CVS would do just as well.

Juggling Act is not a solution to the dilemmas faced by children or their parents in a divorce. On the other hand, the two booklets included are practical and useful as guides and resources. Potential purchasers will have to judge for themselves whether the kit is worth the price.

Mark Zarrow is an attorney mediator who practices in Worcester. He can be contacted at (508) 799-4461, or by email at <mzarrow@lzes.com>.

"Happiness is no laughing matter."

Richard Whately, 1787 - 1863

Winter 2003 â&#x20AC;˘ Vol. 2 No. 1

21 PC FROM A TO Z

by Bette A. Winik and Jane Appell Privileged Character? Politically Correct?

To those of us in the family law field in Massachusetts, PC has recently taken on a new meaning: Parenting Coordinator. That answered, the questions remaining are...

problem solving.

How does the PC process work? The process is designed to assist parents in resolving conflict between themselves. In the absence of a mutually agreeable resolution, the PC is empowered to make the decision for the parties. In the first instance, the PC serves as a mediator. In the latter instance the role becomes that of arbitrator.

What is a Parenting Coordinator? A Parenting Coordinator ("PC") is a neutral third party who helps separated or divorced, high-conflict parents resolve child-related disagreements out of court.

In the short run, the purpose of getting a PC involved in such As of now, there are no clear cases is to avoid multiple court appearances. In the long run, the ethical guidelines for how to hope is that the PC can help function as a PC, nor are there reduce the parental conflicts that any standards regarding who is undermine their decision making.

qualified to be a PC

What is the role of a PC? In practice, PCs can serve a variety of functions depending on the needs of the family and on what is specified in a court's order of appointment. Among the possible roles are a facilitator, decision maker, educator, case manager or monitor. While the PC's clients are the parents, the overarching responsibility of the PC is to make sure that child-related decisions serve the best interests of the children. The issues which the PC might address range from the complexities of an educational or therapy plan for a special-needs child, to more mundane matters such as holiday schedules, pickup times and locations, or telephone access.

Ultimately, by structuring and/or modeling productive decision making for the parents, the PC helps the parents establish a protocol for

Initially the PC meets with the parties either together or individually.

Subsequent communication may occur by telephone or electronic mail, in addition to or instead of in-person meetings. The PC can also talk with the children or collaterals to gather the information necessary to understand the family and the issues.

Finally, a written decision, which is admissible in subsequent court proceedings, is often sent to the parties. If either of the parties is unhappy with the decision, the issue can be brought before a judge. However, until a court order dictates otherwise, the decision of the PC is binding on the parties by virtue of either a signed Parenting Coordinator Agreement or a court order of appointment.

Family Mediation Quarterly

22 Are PCs appointed by a judge? By stipulation, the parties can voluntarily agree that they will work with a PC selected by their attorneys. Alternatively, some family court judges appoint PCs in cases with histories of protracted parental conflict. While there is presently no legislative authority for these court selected and appointed PCs, a bill drafted by the Association of Family and Conciliation Courts ("AFCC") has recently been filed in both the Massachusetts House and Senate which would create such statutory authority. For now PCs are authorized by contract, court order, or both.

What is the difference between a Guardian Ad Litem and a PC? A GAL is appointed by a court either to investigate facts or to evaluate a family and then, if requested to do so, make recommendations to the court about custody and visitation. A GAL performs a fact-finding function so the court can carry out its ultimate decision-making role. On the other hand, a PC can work with parents to implement an existing parenting plan or make minor changes in the plan, within the context of temporary court orders or a separation agreement. Another important distinction is that PCs do not now have protection in the event that they are sued. However, if the AFCC-proposed legislation passes and is enacted into law, a court-appointed PC will have the same qualified immunity as a GAL. Are there ethical guidelines or professional standards for PCs? As of now, there are no clear ethical guidelines for how to function as a PC, nor are there any standards regarding who is qualified to

be a PC. Currently, most PCs are attorneys or mental health professionals. Thus, PCs adhere to the ethical guidelines of their underlying profession.

Who pays for the PC? Most PC fees are split between the parties, usually on a 50/50 basis. However, many PCs put a clause in their fee agreements that the fees can be reallocated if one of the parties is not acting in good faith. This provision may be in a court order of appointment as well.

Postscript: As new players in the field of conflict resolution, Parenting Coordinators are working with their colleagues and the Probate and Family Court to answer questions about their evolving functions. In future articles, we plan to address issues such as being a family's PC after having been involved as a mediator, therapist or GAL; confidentiality and privilege; legislative updates; and readers' questions and concerns.

Bette A. Winik, M.Ed., J.D. is a collaborative family law attorney and mediator who practices in Newton. Bette has also served as a Parenting Coordinator.

She can be contacted at (617) 964-8107, or by email at <bwinik@attbi.com>.

Jane Appell, Ph.D. is a licensed psychologist in private practice who specializes in couples treatment, custody evaluation and mediation of child custody disputes in Concord. Jane has also served as a Parenting Coordinator. She can be contacted at (978) 287-4300 ext. 207, or by email at <Jappell@cris.com>.

Winter 2003 â&#x20AC;˘ Vol. 2 No. 1

23 MEDIATING A CHILD REMOVAL CASE

by Howard I. Goldstein Among the most wrenching of all postdivorce family disputes is the conflict that arises when one parent feels compelled to move out of state with the children; hence the term "removal case."

As is often the case, the law is wide open to interpretation. According to G.L. c. 208, ยง 30:

including whether the quality of the child's life will be improved by the change and by any improvements in the quality of the custodial parent's life. The court must also assess the interest of the custodial parent in moving, including the soundness of the reason for moving and the presence or absence of a motive to deprive the noncustodial parent of reasonable visitation.

The fact that visitation by the non-custodial parent will be changed to his or her disadvantage cannot be controlling.

"A minor child of divorced parents who is a native of or has resided five years within this commonwealth and over whose custody and maintenance a probate court has jurisdiction shall It is precisely because one not, if of suitable age to signify his parent's move out of state can consent, be removed out of this be a traumatic event that commonwealth without such should be the consent, or, if under that age, mediation without the consent of both method of choice parents, unless the court upon cause shown otherwise orders...."

Given the state of our law, it is likely that What is a "suitable age" to signify consent, the primary custodial parent (hereafter and what is "cause shown"? In Yannas v. referred to as the mother) will be permitted Frondistou-Yannas, 395 Mass. 704 (1985), to leave the state with a minor child, absent the Supreme Judicial Court held that "[i]n some evidence that the move is being made this process the first consideration is primarily to defeat the non-custodial whether there is a good reason for the parent's (hereafter, father's) visitation move, a "real advantage." The parent rights. This seems especially true when an seeking to remove the child must establish unemployed parent is seeking work out of "a good, sincere reason...." (Yannas at 711.) state -- an all too common occurrence in The "Real Advantage Test," however, is no the current economic climate. So what is less subject to interpretation than the there to mediate? statute. Ultimately, parents who cannot agree on these arrangements will find In many ways the mediation of a child themselves in court. removal case is no different from any other mediation. Both parents understand that if Courts must consider a variety of factors, they fail to agree, their only recourse will

Family Mediation Quarterly

24 be an imposed, litigated settlement.

Litigation of removal cases can be especially harmful to post-divorce families.

The financial expense and emotional bitterness of litigating a child removal case compels a mediator to stress that the parent who "wins" in court will have won a Pyrrhic victory. It is hard enough for parents to manage long-distance relationships in the best of circumstances.

The rancor created by protracted litigation only makes the situation worse. It is this reality that makes mediation an appealing alternative in removal cases.

As an example from my practice, in planning the mediation of a removal case, I was tempted to start by educating both clients on the state of the law. Fortunately, I had the good sense to ask for advice from an experienced mediator. John Fiske advised me to avoid any reference to the law or the potential outcome in court for as long as possible. He urged me to make sure that each parent has a chance to fully express his or her feelings and wishes for the children at the first meeting. The parents were to be encouraged to voice their concerns about the move without addressing outcomes too early in the process.

John suggested that by not being too evaluative, the mediator can enable the father to talk (hopefully, in a sincere and heartfelt way) about how devastated he feels about the loss of regular contact with his children. This could lead to an expression of his concern for the wellbeing of his kids. Only the most selfabsorbed parent would be unable to recognize that any child accustomed to

routine contact with one parent will be detrimentally affected by the loss of that parent. An open discussion can reduce tensions and help diffuse angry and hurt feelings.

In the safety of the mediation, the mother can be encouraged to share some of her mixed feeling about moving. Her rationale for moving need not negate her genuine sorrow at how her children (and her exhusband) will feel in their loss of regular contact with each other. Hopefully, the mother can be helped to appreciate the benefit of doing whatever is reasonably possible to help maintain the relationship between the father and their children. The father's unwillingness to consent to the move need not prevent him from acknowledging that his ex-wife's wish to move is rooted in good faith. The mother may realize that the father's objection to the move is based not only upon his own wish to see his children, but also out of a legitimate concern regarding the impact his absence will have on their children. A conversation about "Is this move really necessary?" which airs all the pros and cons can result in each of the parties deeper understanding of the other.

John Fiske's colleague, Phil Woodbury, suggested that I read an article by John M. Haynes entitled "John and Mary: Sharing Parenting after Divorce."(1) Haynes gave his clients a homework assignment to work on between sessions. I incorporated it verbatim in my mediated removal case and found it very effective. Haynes asked three questions: Continued on next page

Winter 2003 â&#x20AC;˘ Vol. 2 No. 1

25 "John, what would you want from Mary in order to agree to her position that your child should live primarily with her? Mary, what would you want from John in order to agree with his position that the child should stay behind with him? And while each of you is thinking about this question, I want you also to think about what you could offer the other in order to get him or her to agree to your position?"

Haynes insisted that the parents not state their views immediately at the session.

Instead, he encouraged them to give considerable thought to the questions between sessions. If the clients take these questions seriously, they will reach creatively for ideas to make the move less onerous for the "left-behind" parent. These questions also ask both parents to "walk in each others shoes," a potentially transformative exercise in any mediation.

In Haynes' case, the outcome of this assignment was an emotional breakthrough. In any case these questions should evoke a wide range of practical options for making the move less traumatic for the post-divorce family. These could include financial considerations, scheduling options for visitation, technological solutions (e.g. "virtual" visitation), cell phones, and emails. In my case, the Haynes' exercise helped solidify ways of truly involving the father in the important events in his child's life. It elicited invitations for the father to visit and participate in the decision about which schools and neighborhoods in the out-ofstate location the child would attend, and requests for the father to join the child for important events, such as birthdays and the

first day of school in the new community.

Constructive suggestions go a long way toward making the geographic distance feel less burdensome for all concerned.

Of course, the mother's ability to subsidize the father's travel and other distance-related expenses could aid in reaching agreement.

For parents of more modest means, financial incentives could be difficult to devise, but they are always worth considering, even if largely symbolic. If the parents can be focused on the joint task of making the best of a sad but unavoidable situation, they can come up with some very creative and sensitive ways to cause the least amount of disruption. There is almost no chance of that occurring in a litigated setting.

The exercise described by Haynes could result in surprising outcomes. Experienced mediators know that parties often take positions they don't truly believe in due to pressure from family, friends, or other "constituents" whose opinions they value.

Focusing consideration on how the move might really feel if it occurred might cause that party to reconsider their position. It is up to the mediator to be alert to such a potential in each removal case, and to be prepared to assist in face-saving strategies that make it easier for the parties to change their positions. For example, the mother might be getting pressure from family or friends in another state to return "home" despite the fact that it is the worst thing for her psychologically. In private, the mediator can assist the mother in exploring her ambivalence and, if necessary, devise strategies to deal with the disappointment that her family may feel if she chooses to

Family Mediation Quarterly

26 stay in Massachusetts. Caucusing with the mediator may be beneficial for the father as well.

Another consideration is whether the children should be involved in any way in the mediation. In litigation, the children would probably be interviewed by a courtappointed Guardian Ad Litem. Depending upon the age and the consent of the parents, a mediator may offer to meet with a child.

Alternatively, a mediator might consider facilitating, through a therapist or school counselor, a reasoned discussion with the minor child, in the interest of ascertaining the wishes of the child. Mediator and therapist Janet Wiseman shared an experience in mediating a removal case in which the concerns of both parents about their child led her to meet with the child.

After learning of the child's feelings, the mother decided not to leave the state.

Although some might criticize this approach as "putting the child in the middle," a mediator should consider this kind of intervention in any case in which there is concern that the child's true wishes have been hidden from either or both parents.

It is precisely because one parent's move out of state can be a traumatic event that mediation should be the method of choice for allowing the family to create their own unique solution to this profound problem.

The promise of mediation is that it helps parties preserve relationships. In removal cases, that is exactly the point.

Footnotes & Resources 1. Case Studies in Family Mediation, Josey Bass, Inc. Publishers, reprinted from

the Mediation Quarterly Number 21, Fall, 1988. This case study is also contained in Fundamentals of Family Mediation, by John M. Haynes, page 144-152. I commend this to any mediator dealing with removal cases, and I would be happy to fax a copy to you.

2. Jane Appell informed me that the Massachusetts Association of Guardians Ad Litem (MAGAL) had a recent training on removal cases. The materials from this training are available to members of this association on the MAGAL web site at <http://www.magalinc.org>.

3. Another interesting resource is the proposed Model Relocation Act, adopted by the Board of Governors of the American Academy of Matrimonial Lawyers. This model act is available on the association's web site at < http://www.aaml.org>.

Howard I. Goldstein has been a practicing family lawyer since 1973 and is a mediator with offices in Newton. He can be contacted at (617) 964-7000, or by email at <hg@hgoldstein.com>.

"Make haste slowly."

Suetonius, 69 - 130

Winter 2003 â&#x20AC;˘ Vol. 2 No. 1

27

MCFM News Mediation Peer Group Meetings Merrimack Valley Area Please join us for our (almost) monthly mediator peer support group. We are a group of family law mediators who have been meeting for approximately three years. At some meetings we invite guest speakers to address a topic that helps us improve our mediation skills. Sometimes the topics relate to substantive issues, and sometimes to mediation techniques. At most meetings, we address questions from the members about problems they may be having in their own mediation cases. Our discussions are lively and informative. The criterion for membership is a desire to learn and share. We invite interested mediators to come to our next meeting.

The meetings are held at 8:15 AM at the office of Lynda Robbins, 11 Summer Street, Chelmsford. Please call Lynda at (978) 256-8178 or Karen Levitt at (978) 458-5550 for information or directions.

Metro-West Area Open to all MCFM members. Monthly meetings are (usually) held at 9:30 AM at Janet Weinberger's home, located at 206 Windsor Road, Waban. Please call (617) 965-4432 for dates and driving directions.

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

LEAVE THE FMQ IN YOUR WAITING ROOM

UPDATE Since publication of the fall edition of the FMQ, the MCFM board of directors voted to amend its membership requirements. From now on all MCFM members and all certified mediators will be held to the same basic ethical standard both will be required to attest to good standing in their profession of origin at the time they apply or reapply for membership.

Family Mediation Quarterly

28

Announcements ANNUAL MCFM MEETING & ELECTIONS On June 11, 2003, MCFM will hold its annual meeting and elections. Any MCFM member is eligible to serve as an officer or director. Any member interested in serving on the board of directors is encouraged to contact Fern Frolin at (781) 235-3300 or <ffrolin@grcattys.com>, or Les Wallerstein at (781) 862-1099 or <wallerstein@socialaw.com>.

SAVE THE DATE! NEW BEGINNINGS Wellesley Hills Congregational Church 207 Washington Street Wellesley Hills, MA 02421 (781) 235-8612 email: feelstress@aol.com New Beginnings is a singles support group for separated, divorced, widowed and nevermarried members dealing with the loss of a relationship. Groups meet 52 weeks a year, every Thursday evening from 7 to 9:15, including holidays. Annual dues are $30.

STAYING HEALTHY: A Guide to Keeping Health Insurance After Divorce Health Law Advocates (HLA) and Attorney General Tom Reilly are pleased to announce the publication of a new booklet “Staying Healthy”. Since 1996, HLA has fought to eliminate barriers to staying insured after divorce, and to educate everyone involved in the divorce process. Staying Healthy provides useful information on health insurance rights, options and resources. To request a copy, call Health Law Advocates at (617) 338-5241 or (800) 272-4232 ext. 2980, or e-mail HLA at info@hla-inc.org. Also available on-line at www.ago.state.ma.us/pubs/stayinghealth02.pdf and www.hlainc.org/public/StayingHealth0228.pdf.

NEW & FREE!

Massachusetts Collaborative Law Council, Inc. The MCLC offers legal representation to people in conflicts who share a commitment to resolving disputes without litigation. To find out more, or to locate a collaborative lawyer near you, visit on-line at <www.massclc.org> Winter 2003 • Vol. 2 No. 1

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Announcements UPCOMING MEMBER MEETINGS MCFM invites guest speakers to present topics of interest at four, free, member education meetings annually. Members are encouraged to bring guests at no cost.

Our next two scheduled member meetings are: 1. Wednesday, February 5, 2003, from 2:00 PM to 4:00 PM at the Concord District Court, 305 Walden Street. Clare D. McGorrian, Director of the Divorce Judgment and Health Insurance Project of Health Law Advocates (HLA), will speak on health insurance coverage after divorce. She will distribute the new HLA booklet: "Staying Healthy: A Guide to Keeping Health Insurance After a Divorce."

2. Wednesday, April 2, 2003, from 4:00 PM to 6:00 PM at the Wellesley Community Center, 219 Washington Street (Route 16). A role playing demonstration and critique will be offered by Oran Kaufman, Kathy Townsend and John Fiske. Their topic is "The Vicarious Voyeur," or How Watching Other Mediators do Mediation Will Teach You More about Your Mediation Process.

See <www.mcfm.org> for driving directions.

Corrections Family Mediation Quarterly Vol. 1, No. 2 - Fall, 2002.

New Members: 2002 "Carolyn" Mitchell's first name was misprinted as Catherine. Carolyn's office is located at 7 State Street, Worcester, MA 01609; (508) 752-6166; <cmm.esq@pobox.com>.

MCFM History: Interviews With Three Founders Janet Wiseman was misquoted as finding "... the bar and bench disinterested and especially unaccepting of mediators with therapeutic backgrounds." In addition, Janet is a member of the Mental Health Dispute Resolution Committee of the Program on Negotiation at Harvard University. She is not on the Board of Directors of the Program on Negotiation.

The FMQ welcomes information about errors.

Email the editor at <wallerstein@socialaw.com>.

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Letters To the editor: I recently attended a meeting held at the Franklin County Probate and Family Court with Christine Yurgelin, various approved ADR providers, court personnel, Judge Geoffrey Wilson and Judge Steve Rainaud. During the course of the meeting a copy of MCFM's Family Mediation Quarterly journal was displayed and a comment was made about how useful MCFM's new journal was. Our journal's new look is eye-catching and has attracted attention. I also wanted to point out that as some may not know, copies of the FMQ are sent to all the probate and family judges in the Commonwealth.

The judges at this meeting said that they found the FMQ very helpful and informative, and were thankful for the copies they received.

Oran Kaufman, Esq. Amherst, MA

Editors note. After Debra Smith's article "MCFM's History: Interviews with Three Founders" appeared in the fall edition of the FMQ I wrote a letter to Tom Bishop. He gave the keynote address at the first MCFM conference in 1983. I invited him to share any memories evoked by the article. Below is an excerpt from his reply.

To the editor: Thank you for sending along a copy of the Fmaily Mediation Quarterly with the interesting article about the early days.... In 1987, I began teaching ADR at the University of Connecticut Law School where courses in mediation, arbitration and negotiation are enthusiastically received. There seems to be a thirst among law students to learn better ways than litigation to get disputes resolved, whether motivated by idealism or practicalities. At this point, I think the conversation has shifted not from whether mediation is useful but rather whether its practice should repose primarily in the public or private sector. That is an interesting debate, implicating both policy and economics.

Good luck to the Massachusetts Council.

Thomas A. Bishop, Judge Appellate Court Hartford, CT

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Editorial Eyes Wide Shut In a growing array of non-adversarial divorce choices there is a new intervention called Collaborative DivorceSM. (The SM signifies "service mark" registration with the US Patent and Trademark Office.) I will refer to it as "CD." The distinguishing feature of the CD intervention is a "divorce team."

According to its web site, <www.collaborativedivorce.com> the divorce team provides a "professional, integrated service tailored to fit your needs." The CD team consists of four components: a divorce coach, a child specialist, a financial specialist and collaborative lawyers.

"A Divorce Coach works with you to help you defuse highly charged issues and to develop co-parenting skills. A Child Specialist helps children express their concerns while providing parents information to assist them during the transition. A Financial Specialist assists you with the practical and financial aspects of divorce. The Collaborative Legal Assistance Program: attorneys with expertise in Collaborative Law work with the team to resolve legal problems."

The CD team approach makes these claims: "The most effective, coordinated and affordable approach to divorce settlement." "The wisest choice for yourself and your family." "Makes sure the children are considered, involved and represented (and doesn't allow them to be

used as pawns.)" "Helps couples reach mutually beneficial, legally binding decisions without going to court."

Mediation espoused the first nonadversarial divorce model in the mid1970's. It maximized client control, minimized court involvement, and championed the rights and interests of children in divorce. Mediation has always offered an effective, coordinated and affordable approach to divorce settlement. The CD web site's glaring omission of any reference to mediation seems more than inadvertent.

All non-adversarial divorce interventions seek to minimize court involvement. The CD assertion that divorcing couples can reach "legally binding decisions without going to court" is more than misleading.

It is patently false. Without exception, every couples' decision to divorce MUST be court approved at the time of divorce to be legally binding.

CD advertises its economy by contrasting its services with the well documented, high cost of litigated divorces.

Unfortunately, the comparison is specious. To appreciate the affordability of CD it must be compared with other non-adversarial divorce processes. Of those, divorce mediation is an obviously more affordable option. In CD, if each spouse uses one member of the divorce team, the services of eight professionals will be employed. At the rate of eight professionals per divorce the "affordability" of CD settlements is deceptive.

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Divorce mediators are accustomed to recommending that their clients include other professionals in the process on an "as needed" basis. Financial assistance is commonly sought for valuations of a marital home or a defined benefit plan.

Mediation clients are routinely referred to accountants or child care specialists. Some mediators insist that their clients retain counsel throughout the process. Virtually all mediators urge their clients to have nonadversarial lawyers review a mediated agreement before it is signed. Customized team building has always been a defining feature of divorce mediation.

Mediators have traditionally relied on the services of psychologists and social workers when therapeutic interventions are warranted. Therapeutic interventions in divorce are always designed to facilitate a process that will support the future well being of each client. Divorce coaches are mental health professionals who provide specific therapeutic interventions to clients in the throes of divorce. Therapists disguised as divorce coaches remain therapists.

Some divorcing parents are acutely uncertain of their financial futures, while crystal clear when it comes to issues about their children. For others, the reverse may be true. In between are infinite shades of gray. All divorcing parents do not need "help [to] defuse highly charged issues and to develop co-parenting skills." Nor are child care specialists uniformly warranted.

of acute emotional and financial stress. Our obligation to safeguard clients compels us to expose false claims, half-truths and prepackaged dream teams. The shared vision of non-adversarial divorce does not render all interventions equal.

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

"We are all in the gutter, but some of us are looking at the stars."

Oscar Wilde, 1854 - 1900

Divorcing spouses are characteristically vulnerable. They seek safe haven in a time Winter 2003 â&#x20AC;˘ Vol. 2 No. 1

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SPLITTING UP DOESN’T HAVE TO TEAR A FAMILY APART A trained mediator assists separating or divorcing couples to reach agreement redarding children, finances and division of marital property.

MASSACHUSETTS COUNCIL ON FAMILY MEDIATION, INC. LOOKING FOR A MEDIATOR IN YOUR AREA? USE THE MEDIATOR LOCATOR ON OUR WEB SITE

www.mcfm.org

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Join Us MCFM membership is open to all practitioners and friends of family mediation. MCFM invites guest speakers to present topics of interest at four, free, member education meetings annually. Educational meetings often satisfy certification requirements. Members are encouraged to bring guests at no cost.

MCFM members also receive the Family Mediation Quarterly and are welcome to participate on any MCFM Committee.

All members are listed on-line at MCFMâ&#x20AC;&#x2122;s web site, and all listings may be "linked" to a member's email and web site. Annual membership dues are $90.

Please direct all membership inquiries to Dee Fraylick at <mcfm23@aol.com>.

REFERRAL DIRECTORY: Every MCFM member is eligible to be listed in the MCFM Referral Directory. Each listing in the Referral Directory allows a member to share detailed information explaining his/her mediation practice and philosophy with prospective clients. The Referral Directory is printed and mailed to all Massachusetts judges and to each listed member. The referral directory is also available on-line at the MCFM web site.

MCFM was the first organization to issue practice standards for mediators in Massachusetts. To be listed in the MCFM Referral Directory, each member must agree to uphold the MCFM Standards of Practice. Copies of the MCFM Standards of Practice are available on-line at the MCFM web site.

The annual Referral Directory fee is $60. Please direct all referral directory inquiries to Jerry Weinstein at (617) 965-2315.

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

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

Certification applications cost $100, and re-certification applications cost $50.

Certification and re-certification applications are available on request from Lynn Cooper at <lynnkcooper@aol.com>.

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

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

Vice-President

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

Vice-President

Kathleen A. Townsend, Divorce Mediation Group, Inc., 73 State Street, Springfield, MA 01103, (413) 7334444, email: kathleen@divmedgroup.com

Secretary

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

Treasurer

Frank W. Benson, COMMON GROUND, Center for Negotiation & Public Policy, Inc., 20 Park Plaza, Room 633, Boston, MA 02116, (617) 482-8660, email: FDBenson@ix.netcom.com

DIRECTORS Lynn K. Cooper, Roger A. DuPont, Michael L. Leshin, Karen J. Levitt, Harry E. Manasewich, David River, Lynda J. Robbins, Barry L. Shelton, Debra L. Smith, Les Wallerstein, Philip D. Woodbury & Mark I. Zarrow DIRECTORS EMERITUS John A. Fiske, Janet B. Weinberger, Jerome Weinstein & Barbara N. White ADMINISTRATOR DeLaurice Fraylick, 23 Parker Road, Needham Heights, MA 02494-2001, (781) 449-4430, email: mcfm23@aol.com

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Editorâ&#x20AC;&#x2122;s Notice MCFM

Family Mediation Quarterly Editor: Les Wallerstein 1620 Massachusetts Avenue Lexington, MA 02420-3802 Telephone: (781) 862-1099 Fax: (781) 861-8797 email: wallerstein@socialaw.com The FMQ is dedicated to family mediators working with traditional and 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, local dispute resolution coordinators, and all law school libraries in Massachusetts. Excerpts from prior editions will appear on the MCFM web site <www.mcfm.org> after the FMQ has been printed and mailed.

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.

Winter 2003 â&#x20AC;˘ Vol. 2 No. 1

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

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