Family Mediation Quarterly
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MASSACHUSETTS COUNCIL ON FAMILY MEDIATION 23 Parker Road Needham Heights, MA 02494-2001
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MCFM
FAMILY MEDIATION QUARTERLY Vol. 3 No. 1
Winter 2004
NONPROFIT ORG. U.S. POSTAGE PAID NEEDHAM, MA PERMIT NO. 53289
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 Whatever one’s own beliefs about the definition of marriage, and however and whenever the issue of same-sex marriage will be resolved in Massachusetts, as mediators we are obligated to serve our clients fairly and knowledgeably. The fairness issue is straightforward. Massachusetts law clearly denies discrimination on the basis of sexual orientation in such areas as employment and housing. But more specific to our profession, the standards of the Massachusetts Council on Family Mediation (MCFM) emphasize the importance of a mediator’s neutrality. Although a bias against sexual orientation is not specifically stated, a mediator is obligated under the MCFM standards to treat all clients the same, and if a bias exists, to clearly explain this to the mediation couple. The knowledge issue is more complex. With same-sex marriage not yet a reality, mediators will not soon be facing same-sex divorce. However, experienced practitioners have dealt with such cases as an agreement preparatory to joint ownership of real estate, a partnership’s termination when children are involved, or the division of shared assets when a same-sex relationship ends. Generally, the law is different in these areas than in that of marriage. While the techniques of mediation are similarly applicable, an understanding of the legal differences for lesbian/gay couples in such areas as asset transfer, tax concerns and custody and parenting of children is necessary to effectively assist one’s clients. These are complex concerns, and just as emotionally draining for these clients as for heterosexual couples. MCFM is offering a program on The Future of Marriage, Divorce and Mediation: How Same Sex Marriage Will Change the Practice of Family Mediation, presented by attorneys Maureen Monks and Cynthia Bauman, on Wednesday, February 11th, at 2:00 p.m. at the Concord Courthouse. Do take advantage of the chance to learn from these experienced speakers. And, as a mediator, work hard to identify and become familiar with the issues unique to same-sex couples in structuring pre-partnership agreements as well as in ending relationships.
Contents 1
Hillary Goodridge, et. al. vs. Department of Public Health Excerpts from the decision by Margaret H. Marshall, Chief Justice of the Massachusetts Supreme Judicial Court
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Blue Christmas By Barry L. Shelton
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Peer Mediation Groups: A Peerless Experience By Janet Weinberger
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A Clause To Consider By James McCusker
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Other People's Children — A Book Review By Marion Lee Wasserman
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Parenting Coordination: Facts & Pending Legislation Provided by Hon. Arline Rotman, (Ret.)
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Parenting Coordination Policies: A Sample Agreement & Release By Jane Appell
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Ethical Quandaries An ongoing, confidential conversation about the professional practice of mediation by MCFM members. 30 Editorial 31 MCFM News 32 Announcements
34 Join Us 35 Directorate 36 Editor’s Notice
MCFM © 2004 All Rights Reserved
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Hillary Goodridge, et. al. vs. Department of Public Health Editor's note: On November 18, 2003, our Supreme Judicial Court held that under the Massachusetts Constitution, same-sex partners cannot be prevented from marrying. Below are some key excerpts of that momentous decision, written by the chief justice, Margaret H. Marshall. While all footnotes and citations have been omitted, the entire decision (and the dissents) are available on-line at www.glad.org. Marriage is a vital social institution. The exclusive commitment of two individuals to each other nurtures love and mutual support; it brings stability to our society. For those who choose to marry, and for their children, marriage provides an abundance of legal, financial, and social benefits. In return it imposes weighty legal, financial, and social obligations. The question before us is whether, consistent with the Massachusetts Constitution, the Commonwealth may deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry. We conclude that it may not. The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens. In reaching our conclusion we have given full deference to the arguments made by the Commonwealth. But it has failed to identify any constitutionally adequate reason for denying civil marriage to samesex couples. We are mindful that our decision marks a
change in the history of our marriage law. Many people hold deep-seated religious, moral, and ethical convictions that marriage should be limited to the union of one man and one woman, and that homosexual conduct is immoral. Many hold equally strong religious, moral, and ethical convictions that same-sex couples are entitled to be married, and that homosexual persons should be treated no differently than their heterosexual neighbors. Neither view answers the question before us. Our concern is with the Massachusetts Constitution as a charter of governance for every person properly within its reach. "Our obligation is to define the liberty of all, not to mandate our own moral code." The Massachusetts Constitution is, if anything, more protective of individual liberty and equality than the Federal Constitution; it may demand broader protection for fundamental rights; and it is less tolerant of government intrusion into the protected spheres of private life. Barred access to the protections, benefits, and obligations of civil marriage, a person who enters into an intimate, exclusive union with another of the same sex is arbitrarily deprived of membership in one of our community's most rewarding and cherished institutions. That exclusion is incompatible with the constitutional principles of respect for individual autonomy and equality under law. We have recognized the long-standing
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statutory understanding, derived from the common law, that "marriage" means the lawful union of a woman and a man. But that history cannot and does not foreclose the constitutional question.
being and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family.... Because it fulfils yearnings for security, safe haven, and connection that express our common humanity, civil marriage is an esteemed institution, and the decision whether and whom to marry is among life's momentous acts of self-definition.
We begin by considering the nature of civil marriage itself. Simply put, the government creates civil marriage. In Massachusetts, civil marriage is, and since pre-Colonial days has Civil marriage is an esteemed been, precisely what its institution, and the decision whether name implies: a wholly and whom to marry is among life's secular institution.... No religious ceremony has momentous acts of self-definition. ever been required to validate a Massachusetts marriage. The benefits accessible only by way of a While only the parties can mutually assent marriage license are enormous, touching to marriage, the terms of the marriage – nearly every aspect of life and death.... who may marry and what obligations, benefits, and liabilities attach to civil Without the right to marry – or more marriage – are set by the Commonwealth. properly, the right to choose to marry – one Conversely, while only the parties can is excluded from the full range of human agree to end the marriage ... the experience and denied full protection of the Commonwealth defines the exit terms. laws for one's "avowed commitment to an intimate and lasting human relationship." Civil marriage anchors an ordered society Because civil marriage is central to the by encouraging stable relationships over lives of individuals and the welfare of the transient ones. It is central to the way the community, our laws assiduously protect Commonwealth identifies individuals, the individual's right to marry against provides for the orderly distribution of undue government incursion. Laws may property, ensures that children and adults not "interfere directly and substantially are cared for and supported whenever with the right to marry." "There can be no possible from private rather than public prohibition of marriage except for an funds, and tracks important important social objective and reasonable epidemiological and demographic data. means".... Marriage also bestows enormous private and social advantages on those who choose to marry. Civil marriage is at once a deeply personal commitment to another human
For decades, indeed centuries, in much of this country (including Massachusetts) no lawful marriage was possible between
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white and black Americans. That long history availed not when the Supreme
The individual liberty and equality safeguards of the Massachusetts Constitution The benefits accessible only by way of a protect both marriage license are enormous, touching "freedom from" unwarranted nearly every aspect of life and death. government Court of California held in 1948 that a intrusion into protected spheres of life and legislative prohibition against interracial "freedom to" partake in benefits created by marriage violated the due process and the State for the common good. Both equality guarantees of the Fourteenth freedoms are involved here. Whether and Amendment, ... or when, nineteen years whom to marry, how to express sexual later, the United States Supreme Court also intimacy, and whether and how to establish held that a statutory bar to interracial a family – these are among the most basic marriage violated the Fourteenth of every individual's liberty and due Amendment... As both (cases) make clear, process rights. And central to personal the right to marry means little if it does not freedom and security is the assurance that include the right to marry the person of the laws will apply equally to persons in one's choice, subject to appropriate similar situations. The liberty interest in government restrictions in the interests of choosing whether and whom to marry public health, safety, and welfare. would be hollow if the Commonwealth ...[H]istory must yield to a more fully could, without sufficient justification, developed understanding of the invidious foreclose an individual from freely quality of the discrimination. choosing the person with whom to share an exclusive commitment in the unique The Massachusetts Constitution protects institution of civil marriage. matters of personal liberty against government incursion as zealously, and The department posits three legislative often more so, than does the Federal rationales for prohibiting same-sex couples Constitution, even where both from marrying: (1) providing a "favorable Constitutions employ essentially the same setting for procreation"; (2) ensuring the language. ... That the Massachusetts optimal setting for child rearing, which the Constitution is in some instances more department defines as "a two-parent family protective of individual liberty interests with one parent of each sex"; and (3) than is the Federal Constitution is not preserving scarce State and private surprising. Fundamental to the vigor of our financial resources. We consider each in Federal system of government is that "state turn. courts are absolutely free to interpret state constitutional provisions to accord greater Our laws of civil marriage do not privilege protection to individual rights than do procreative heterosexual intercourse similar provisions of the United States between married people above every other Constitution." form of adult intimacy and every other
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means of creating a family. General Laws c. 207 contains no requirement that the applicants for a marriage license attest to their ability or intention to conceive children by coitus. Fertility is not a condition of marriage, nor is it grounds for divorce. People who have never consummated their marriage, and never plan to, may be and stay married. People who cannot stir from their deathbed may marry. While it is certainly true that many, perhaps most, married couples have children together (assisted or unassisted), it is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non The of civil marriage.
children is a paramount State policy. Restricting marriage to opposite-sex couples, however, cannot plausibly further this policy.... [W]e have repudiated the common-law power of the State to provide varying levels of protection to children based on the circumstances of birth. "Ours is an era in which logic and compassion have impelled the law toward unburdening children from the stigma and the disadvantages heretofore attendant upon the status of illegitimacy." The "best interests of the child" standard does not turn on a parent's sexual orientation or marital status.
liberty interest in choosing whether and whom to marry would be hollow if the Commonwealth could, without sufficient justification, foreclose an individual from freely choosing the person with whom to share an exclusive commitment in the unique institution of civil marriage.
The "marriage is procreation" argument singles out the one unbridgeable difference between same-sex and opposite-sex couples, and transforms that difference into the essence of legal marriage.... In so doing, the State's action confers an official stamp of approval on the destructive stereotype that same-sex relationships are inherently unstable and inferior to opposite-sex relationships and are not worthy of respect. The department's first stated rationale, equating marriage with unassisted heterosexual procreation, shades imperceptibly into its second: that confining marriage to opposite-sex couples ensures that children are raised in the "optimal" setting. Protecting the welfare of
[T]he task of child rearing for same-sex couples is made infinitely harder by their status as outliers to the marriage laws. While establishing the parentage of children as soon as possible is crucial to the safety and welfare of children, ... same-sex couples must undergo the sometimes lengthy and intrusive process of secondparent adoption to establish their joint parentage. While the enhanced income provided by marital benefits is an important source of security and stability for married couples and their children,
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those benefits are denied to families headed by same-sex couples.... While the laws of divorce provide clear and reasonably predictable guidelines for child support, child custody, and property division on dissolution of a marriage, same-sex couples who dissolve their relationships find themselves and their children in the highly unpredictable terrain of equity
grow."
In this case, we are confronted with an entire, sizeable class of parents raising children who have absolutely no access to civil marriage and its protections because they are forbidden from procuring a marriage license. It cannot be rational under our laws, and indeed it is not permitted, to It cannot be rational under our laws, and penalize children indeed it is not permitted, to penalize by depriving of State children by depriving them of State them benefits because benefits because the State disapproves of the State disapproves of their parents' sexual orientation. their parents' jurisdiction. ... Given the wide range of sexual orientation. public benefits reserved only for married couples, we do not credit the department's The third rationale advanced by the contention that the absence of access to department is that limiting marriage to civil marriage amounts to little more than opposite-sex couples furthers the an inconvenience to same-sex couples and Legislature's interest in conserving scarce their children. Excluding same-sex couples State and private financial resources. The from civil marriage will not make children marriage restriction is rational, it argues, of opposite-sex marriages more secure, but because the General Court (i.e legislature) it does prevent children of same-sex logically could assume that same-sex couples from enjoying the immeasurable couples are more financially independent advantages that flow from the assurance of than married couples and thus less needy of "a stable family structure in which children public marital benefits, such as tax will be reared, educated, and socialized." advantages, or private marital benefits, such as employer-financed health plans [N]o one disputes that, under the rubric of that include spouses in their coverage. marriage, the State provides a cornucopia of substantial benefits to married parents An absolute statutory ban on same-sex and their children. The preferential marriage bears no rational relationship to treatment of civil marriage reflects the the goal of economy. First, the department's Legislature's conclusion that marriage "is conclusory generalization – that same-sex the foremost setting for the education and couples are less financially dependent on socialization of children" precisely because each other than opposite-sex couples – it "encourages parents to remain committed ignores that many same-sex couples... have to each other and to their children as they children and other dependents ... in their
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care. The department does not contend, nor could it, that these dependents are less needy or deserving than the dependents of married couples. Second, Massachusetts marriage laws do not condition receipt of public and private financial benefits to married individuals on a demonstration of financial dependence on each other; the benefits are available to married couples regardless of whether they mingle their finances or actually depend on each other for support. Certainly our decision today marks a significant change in the definition of marriage as it has been inherited from the common law, and understood by many societies for centuries. But it does not disturb the fundamental value of marriage in our society.
marriage's solemn obligations of exclusivity, mutual support, and commitment to one another is a testament to the enduring place of marriage in our laws and in the human spirit.... It has been argued that, due to the State's strong interest in the institution of marriage as a stabilizing social structure, only the Legislature can control and define its boundaries. Accordingly, our elected representatives legitimately may choose to exclude same-sex couples from civil marriage in order to assure all citizens of the Commonwealth that (1) the benefits of our marriage laws are available explicitly to create and support a family setting that is, in the Legislature's view, optimal for child rearing, and (2) the State does not endorse gay and lesbian parenthood as the equivalent of being raised by one's married biological parents.... These arguments miss the point. The Massachusetts Constitution requires that legislation meet certain criteria and not extend beyond certain limits. It is the function of courts to determine whether these criteria are met
Here, the plaintiffs seek only to be married, not to undermine the institution of civil marriage. They do not want marriage abolished. They do not attack the binary nature of marriage, the consanguinity provisions, or any of the other gate-keeping provisions of the marriage Certainly our decision today licensing law. Recognizing the right of an individual to marry a marks a significant change in the person of the same sex will not definition of marriage.... But it diminish the validity or dignity of opposite-sex marriage, any does not disturb the fundamental more than recognizing the right value of marriage in our society. of an individual to marry a person of a different race devalues the and whether these limits are exceeded. In marriage of a person who marries someone most instances, these limits are defined by of her own race.... If anything, extending whether a rational basis exists to conclude civil marriage to same-sex couples that legislation will bring about a rational reinforces the importance of marriage to result. The Legislature in the first instance, individuals and communities. That same- and the courts in the last instance, must sex couples are willing to embrace Continued on next page Winter 2004 • Vol. 3 No. 1
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ascertain whether such a rational basis exists. To label the court's role as usurping that of the Legislature... is to
antimiscegenation laws, the expansion of the rights of married women, and the introduction of "no-fault" divorce.... has survived all The history of constitutional law "is Marriage of these transformations, the story of the extension of and we have no doubt constitutional rights and protections that marriage will continue to be a vibrant to people once ignored or excluded." and revered institution. misunderstand the nature and purpose of judicial review. We owe great deference to We also reject the argument... that the Legislature to decide social and policy expanding the institution of civil marriage issues, but it is the traditional and settled in Massachusetts to include same-sex role of courts to decide constitutional couples will lead to interstate conflict. We issues. would not presume to dictate how another State should respond to today's decision. The history of constitutional law "is the But neither should considerations of story of the extension of constitutional comity prevent us from according rights and protections to people once Massachusetts residents the full measure of ignored or excluded." ...This statement is as protection available under the true in the area of civil marriage as in any Massachusetts Constitution. The genius of other area of civil rights.... As a public our Federal system is that each State's institution and a right of fundamental Constitution has vitality specific to its own importance, civil marriage is an evolving traditions, and that, subject to the minimum paradigm. The common law was requirements of the Fourteenth exceptionally harsh toward women who Amendment, each State is free to address became wives: a woman's legal identity all difficult issues of individual liberty in the but evaporated into that of her husband.... manner its own Constitution demands. Thus, one early Nineteenth Century jurist could observe matter of factly that, prior to Several amici suggest that prohibiting the abolition of slavery in Massachusetts, marriage by same-sex couples reflects "the condition of a slave resembled the community consensus that homosexual connection of a wife with her husband, and conduct is immoral. Yet Massachusetts has of infant children with their father. He is a strong affirmative policy of preventing obliged to maintain them, and they cannot discrimination on the basis of sexual be separated from him." .... But since at orientation.... least the middle of the Nineteenth Century, both the courts and the Legislature have The department has had more than ample acted to ameliorate the harshness of the opportunity to articulate a constitutionally common-law regime. ... Alarms about the adequate justification for limiting civil imminent erosion of the "natural" order of marriage to opposite-sex unions. It has marriage were sounded over the demise of failed to do so. The department has offered
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purported justifications for the civil marriage restriction that are starkly at odds with the comprehensive network of vigorous, gender-neutral laws promoting stable families and the best interests of children. It has failed to identify any relevant characteristic that would justify shutting the door to civil marriage to a person who wishes to marry someone of the same sex.
families and would dismantle a vital organizing principle of our society. ... We face a problem similar to one that recently confronted the Court of Appeal for Ontario, the highest court of that Canadian province, when it considered the constitutionality of the same-sex marriage ban under Canada's Federal Constitution, the Charter of Rights and Freedoms (Charter). ... Canada, like the United States, adopted the common law of England that civil marriage is "the voluntary union for life of one man and one woman, to the exclusion of all others." ... In holding that the limitation of civil marriage to opposite-sex couples violated the Charter, the Court of Appeal refined the common-law meaning of marriage. We concur with this remedy, which is entirely consonant with established principles of jurisprudence empowering a court to refine a common-law principle in light of evolving constitutional standards....
The marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason. The absence of any reasonable relationship between, on the one hand, an absolute disqualification of same-sex couples who wish to enter into civil marriage and, on the other, protection of public health, safety, or general welfare, suggests that the marriage restriction is rooted in persistent prejudices against persons who are (or who are believed to be) homosexual. ... "The Constitution The marriage ban works a deep and cannot control such prejudices scarring hardship on a very real segment but neither can it of the community for no rational reason. tolerate them. Private biases may be outside the reach of We construe civil marriage to mean the the law, but the law cannot, directly or voluntary union of two persons as spouses, indirectly, give them effect." ... Limiting to the exclusion of all others. This the protections, benefits, and obligations of reformulation redresses the plaintiffs' civil marriage to opposite-sex couples constitutional injury and furthers the aim of violates the basic premises of individual marriage to promote stable, exclusive liberty and equality under law protected by relationships. It advances the two the Massachusetts Constitution. legitimate State interests the department has identified: providing a stable setting for Here, no one argues that striking down the child rearing and conserving State marriage laws is an appropriate form of resources. It leaves intact the Legislature's relief. Eliminating civil marriage would be broad discretion to regulate marriage.... wholly inconsistent with the Legislature's deep commitment to fostering stable Continued on page 10 Winter 2004 • Vol. 3 No. 1
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10 Blue Christmas By Barry L. Shelton
Many people dread the onset of The Holidays. But nothing compares to the bitter compound of loneliness and despair that recently separated or divorced people bear at this time. When it feels like there is a lump of coal in your heart, all the gaiety feels forced, the sentiment seems bogus, and the Season warps into a festival of regret. This can be a confusing, painful time for these families, especially the children. Consider the following:
non-custodial parents. One year I bought what I thought was an outstanding tree. It was so colossal that I raked pictures off the walls and gouged the woodwork getting it indoors. It was too full and bushy for the space, and I suffered a powerful tantrum in front of my daughter. I ended up savaging the tree with a hatchet right there in the living room and lashing it to a bookcase in order to keep it upright. She remembers that Christmas quite clearly.
1) There is no right or wrong way to celebrate the Holidays. Whether you stick to old family traditions or change the pattern, it's okay. My daughter and I have created several new traditions in my home. For instance, each year we make a few new ornaments for our Christmas tree. It's fun, and it marks cherished time together.
5) So, lighten up. Big deal if your ex lets the kids stay up past their bedtime. If something doesn't have an impact on your household, let it go.
2) Temper your expectations with realism. Your family has undergone a radical change, and it takes time to adjust. As long as you're expecting things to be perfect, they won't be.
6) Transitions should be as smooth as possible. Moving between households is not as easy as it may seem for kids. I always drive my child to her mother's home after spending time with me, so our parting is imminent yet gradual for her. She is uncommonly quiet during the short drive. Other kids may get hyper. Don't let the stress get to you. Make sure your interaction with your kids and your ex is peaceful during the transition.
8) Being around your family of origin can be especially difficult now. Your partner's absence seems to solidify into an object too real to ignore gracefully or embrace without being awkward. Naturally, it helps when your family is understanding and supportive. But sometimes, despite best intentions, I found it necessary to consider Plan B - be polite, be brief, and be gone. 9) If you are not for yourself, who is for you? Take care of your body, mind and spirit. 10) Listen to your kids. Stay curious about them. Love them as if your life depended on it. And when it's time to let them go, let them go. Barry L. Shelton is a family lawyer and mediator from Wellesley. He can be contacted at (781) 237-0541, or by email at sheltonbls@attbi.com, or you may visit his web site at www.helpfamilymediate.com.
“Vision is the art of seeing things invisible.” Jonathan Swift
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In their complaint the plaintiffs request only a declaration that their exclusion and the exclusion of other qualified same-sex couples from access to civil marriage violates Massachusetts law. We declare that barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution. We vacate the summary judgment for the department. We remand this case to the Superior Court for entry of judgment consistent with this opinion. Entry of judgment shall be stayed for 180 days to permit the Legislature to take such action as it may deem appropriate in light of this opinion.
3) Plan ahead. Especially if you're shuttling children back and forth between households. They don't need two Listen to your kids. Stay separate turkey dinners. Discussing these issues with your curious about them. Love them ex should be done in private and as if your life depended on it. without the kids present. Email can be a useful tool if communicating is 7) Ask for help. Don't isolate. Reach out difficult. to your friends. Talk to your family. Tap your support network And be sure to let 4) Don't overdo things in an effort to people know you appreciate their help. compensate. This is particularly true for
Margaret H. Marshall is the Chief Justice of the Massachusetts Supreme Judicial Court. She was born on September 1, 1944 in South Africa. She earned her BA in 1966 from Witwatersrand University in Johannesburg, her M.Ed. from Harvard in 1969, and graduated from Yale Law School in 1976. To date, Chief Justice Marshall is the only woman to have ever presided over the Massachusetts Supreme Judicial Court. Her email address is chiefjustice.marshall@sjc.state.ma.us
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So ordered.
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12 Peer Mediation Groups: A Peerless Experience By Janet Weinberger
Working in relative isolation is one of the challenges faced by most mediators. Many mediators practice totally independently, others work in offices with other lawyers or therapists but may be the only mediator. This is not a problem merely for inexperienced mediators – even those who have many years of experience have cases that present complex substantive issues and challenging process problems. One solution: peer mediation groups. Two such groups currently flourish – the Merrimack Valley group, co-chaired by Lynda Robbins and Karen Levitt, and the Metro-West group, which I coordinate. A third met regularly for about nine years before disbanding. Those who have participated in the groups identify a number of important benefits: Getting suggestions for ways to handle mediation process issues: All mediators have cases in which they encounter thorny process problems – how to handle power imbalances or angry clients, to name just a couple of classic mediation challenges. Having the opportunity to explore alternative approaches often proves invaluable. In addition, issues arise stemming from new technology; recently in the Metro-West group a mediator raised questions about how to handle a mediation conducted solely via e-mail. The impact on mediation practice of changes in domestic relations law has also sparked lively debate. For example, in the Metro-West group the question was raised as to whether to include in the agreement clients sign
prior to starting the mediation process the automatic restraining order provision that is now part of the divorce/separate support summons. Of course, the meeting is an excellent forum for discussing the perennial question that mediators ponder: what divorce forms and/or documents should the mediator prepare? The kinds of ethical quandaries that Les Wallerstein poses in his new column in the Family Mediation Quarterly have also led to interesting and helpful debate. Obtaining substantive information regarding divorce and separation: All mediators benefit from a forum in which the intricacies of such topics as QDRO's, stock options, and tax consequences of support and asset transfer can be discussed. In addition, group members share alternative approaches for knotty problems (for example, dealing with situations in which the Child Support Guidelines do not apply). Other opportunities exist for learning about divorce law (MCFM programs, continuing legal education seminars), but practitioners frequently need immediate information. Gaining a sense of whether the court will find a separation agreement problematic: Most mediators find it useful to have information as to whether a judge is likely to question the fairness of a separation agreement. The peer group meetings provide a valuable forum for exchanging such information. In a recent Metro-West meeting, for example, one mediator shared her experience with a
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judge who would not approve a provision in which child support decreased by onethird when the youngest child entered college. Passing along information about provisions judges have rejected can help clients understand (often much to their surprise and dismay) that the court does not necessarily rubber stamp agreements.
Obtaining members: You may already know some mediators who are eager to start a group. The MCFM Family Mediation Quarterly is a useful place to publicize your group. One person should be the "contact" person who will maintain an e-mail list and send reminders of meetings.
Providing a support network: Simply Criteria for membership: Both of the meeting with other mediators to share currently operating groups are open to all, concerns supplies badly needed support to regardless of experience or professional mediators who Newer mediators benefit from the frequently struggle alone. experience of the old-timers, and often the An important "green" mediators raise important and additional benefit is that thought-provoking questions. group members feel free to contact each background. The group that no longer other in between meetings to obtain advice meets required members to have at least ten and suggestions – a member sometimes years of experience. Interestingly, confronts a problem that can't wait to be according to Jerry Weinstein, a long-term addressed at the next meeting. Members member of the group, over time the lawyeroccasionally e-mail the entire group for mediators dropped out and many of the urgent assistance. Members of both the remaining members were guardians ad Merrimack Valley and Metro-West groups litem. The group ran out of steam, Jerry sometimes make referrals to one another – noted, finding that the discussions got for example, to another mediator in the repetitive. I started what is now referred to group if he or she has a conflict of interest as the Metro-West group because at that and cannot take on a case, or a mediation time I didn't have the required number of client wants names of lawyers who will years experience to join the "advanced" serve as "mediation friendly" coaches. In group and did not want to make a set addition, group members share number of years a prerequisite for joining recommendations for allied professionals, the new group. And philosophically I such as CPAs and appraisers of pensions, thought it was important for mediators of real estate, and closely-held corporations. all levels to have the opportunity to get assistance with their cases. My own Forming a Peer Support Group: Following experience with the Metro-West group are several suggestions to consider if you (which has been in existence for about decide to form a peer support group in your eight years) is that the varied levels of community: experience have been useful. Newer Continued on next page Winter 2004 • Vol. 3 No. 1
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mediators benefit from the experience of the old-timers, and often the "green" mediators raise important and thoughtprovoking questions. Size and Frequency of Meetings: Both of the existing groups have an e-mail list of approximately ten people, and usually about six people come to each meeting. While there is no "magic number" for attendance, I ask people to RSVP, and if fewer than four people plan to attend the meeting (a rare occurrence), we cancel it. The groups meet approximately once a month. Every January the Merrimack Valley group decides on the meeting dates for the year. Since the Metro-West group meets at my home, it hasn't been practical to set up the dates in advance for the year, so at the end of each meeting we decide on the next date. Format: All the groups have included discussion of both legal issues and mediation techniques, but the format varies. The defunct advanced mediation group typically decided on a topic or chose a member to present a case for the following meeting. The Merrimack Valley group sometimes has a speaker, and other times discusses cases. Past presenters include Franklin Peters on QDRO's, John Fiske on marital mediation, Jim McCusker
on tax issues, and David Morris of the Middlesex Probate Court on how courts approach mediated agreements. The MetroWest group operates quite informally, without speakers. Most meetings include discussions of both substantive issues and problematic cases. Often a member who has been to an interesting continuing education program shares useful information with the group. Confidentiality: If cases are discussed, it is essential that actual case names not be used and identifying details be changed. So consider joining an existing group or starting your own. In the conclusion of his excellent and thought-provoking article, "Paradoxes of Mediation" (MCFM Family Mediation Quarterly, Spring 2003), David Hoffman points out the value of reflective practice, comparing successful practice to "an elusive horizon that with many years of practice [we] approach, but never fully reach." Peer supervision groups provide the opportunity to move closer to that elusive horizon.
Janet Weinberger is an attorney mediator who practices in Newton. She can be contacted at (617) 9654432, or by e-mail at <jw@divmed.com>
“Imagination is more important than knowledge.” Albert Einstein Family Mediation Quarterly
A CLAUSE TO CONSIDER By James McCusker Confused and overwhelmed by the myriad of tax regulations encountered when drafting your separation agreements? Well so am I, and I review this stuff for a living! It's a virtual minefield out there – tax bombs ticking away in your agreements ready at anytime to shatter the quiet of blissful separation. The Internal Revenue Tax Code has expanded from 400 to 55,000 pages in the 90 years since its inception. It contains enough gray areas to fill a November sky and send even the most seasoned of professionals crying for advice. So what's a person to do when faced with the liability of giving counsel in such an environment? Calling your Congressman may be your first reaction, but a simpler and perhaps more effective answer may be to insert a "Tax Clause" in your The Internal Revenue Tax Code Separation Agreements. I've gleaned information from the tax literature and have had discussions with a number of family law professionals on just such a clause and this is what I've come up with:
has expanded from 400 to 55,000 pages in the 90 years since its inception. It contains enough gray areas to fill a November sky and send even the most seasoned of professionals crying for advice.
Each party agrees not to assert any position in or with respect to any tax return filed by him or her which is inconsistent with any terms of this Agreement and Each party agrees not to assert any position in or with respect to any tax return filed by shall indemnify and hold the other party harmless from any tax liability (together him or her which is inconsistent with any terms of this Agreement and shall indemnify and with interest, penalties and defense costs) incurred by the other party resulting hold the other party harmless from any tax liability (together with interest, penalties and from same. In addition, if as an unintended consequence, the terms of this defense costs) incurred by the other party resulting from same. In addition, if as an Agreement are held to be in contravention of applicable federal and/or state tax unintended consequence, the terms of this Agreement are held to be in contravention of laws in any year(s), the resulting tax liability or tax savings (together with applicable federal and/or state tax laws in any year(s), the resulting tax liability or tax interest, penalties and defense costs) shall be shared by the parties. If the parties savings (together with interest, penalties and defense costs) shall be shared by the parties. cannot agree to a resolution of the issue, they shall first submit the issue to If the parties cannot agree to a resolution of the issue, they shall first submit the issue to mediation before either files any pleading with the court on this matter. Further, mediation before either files any pleading with the court on this matter. Further, the the parties will review the affected provisions of this Agreement and make parties will review the affected provisions of this Agreement and make appropriate appropriate adjustments to reflect the financial impact this changed tax status has adjustments to reflect the financial impact this changed tax status has on subsequent years. on subsequent years. Although you may want to modify this clause to meet your specific needs, it is certainly broad enough to cover most of the situations you will encounter. I believe the utility of such a clause lies in the framework it establishes within your Agreement. First, it serves notice to the Parties that if they intentionally subvert any intended tax provisions of the Continued on page 16
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16 OTHER PEOPLE'S CHILDREN A Book Review by Marion Lee Wasserman
A man or woman contemplating divorce may already have a "significant other," or at least may be imagining one as an antidote to present unhappiness. The divorcing individual may be eagerly anticipating life with a new partner or spouse, perhaps in a new home. Peering optimistically into the future, he or she may see the new relationship as an answer to everything wrong with the present marriage, offering the prospect of a peaceful nest for the new partners or spouses and their children. But the illusion of a blissful new life cannot last long. In her novel Other People's Children (Bloomsbury, 1998; Viking Penguin, 1999), Joanna Trollope, one of England's best-selling novelists, examines predivorce and post-divorce relationships and stepfamilies, and she uncompromisingly separates reality from wishful fantasy. I know of no other book so vividly depicting the challenges stepfamilies face and so insightfully showing the reasons for their difficulties. Joanna Trollope is a descendant of the Victorian novelist Anthony Trollope, and like her better-known ancestor, she is a keen observer of the human condition â&#x20AC;&#x201C; a sympathetic inquirer into character, behavior and individual perspective. Remarkably, she is as capable of bringing an eight year old child or frustrated teenager to life as she is of portraying a widowed father or a despairing stepmother. Trollope draws us in from the novel's first scene, where we are given a little boy's bewildered viewpoint on his mother's
wedding â&#x20AC;&#x201C; a wedding he hears his mother's best friend refer to as "second time round." All of the family problems familiar to divorce mediators, family lawyers, probate judges, guardians ad litem, and family therapists are here in this book. In Joanna Trollope's fiction, professional labels are not needed. Her family and individual portraits speak for themselves. Here is Nadine, the depressed and bitter ex-wife trying to alienate her children from their father and stepmother. Here is Josie, the well-intentioned but overwhelmed stepmother resorting to physical abuse in a moment of fury and resentment. Here are the arrangements for drop-offs and pickups. Here are the children in houses that do not yet feel like home, with step-siblings who do not yet feel like brothers or sisters. "The children looked exhausted," Nadine observes to herself shortly after her exhusband, Matthew, has dropped off their children at a pre-arranged meeting-place along the road, a mile from Nadine's cottage in the country. Nadine takes satisfaction in Matthew's evident weariness. "She had determined she would neither look at Matthew nor speak to him, but she saw enough to reassure herself that he looked exhausted, too. And he was thinner. He'd always been inclined to thinness, but now he looked scrawny, and much older. He'd hardly said good-bye to the children, but just let them get silently from one car to the other, only helping Clare with her bags." Clare, age ten, gets her skirt caught in the car door, tearing it and crying.
Family Mediation Quarterly
As divorce mediators, we are always aware that the whole picture is larger, more complicated and even more emotional than
with families and family members touched by divorce.
As divorce mediators, we are always aware that the whole picture is larger, more complicated and even more emotional than the one we are privileged to see in mediation. the one we are privileged to see in mediation. In Other People's Children, Joanna Trollope takes on the formidable job of giving us the whole picture. She succeeds at her task, always compassionate but never sparing of the truth. Having read Other People's Children, I feel grateful for Joanna Trollope's accomplishment. Her novel offers new insight that remains long after the book is closed. I recommend this book highly to every professional dealing in any capacity
Note: If your life is too hectic for curling up with a novel, try the excellent unabridged audiobook version of Other People's Children (Recorded Books, 1999; Davina Porter, narrator). "Read" it while you drive to work!
Marion Lee Wasserman is a lawyer and mediator with an office in Newton, MA. She is the author of a book on family issues and holds a Master's degree in English language and literature. In addition to her family law practice, she has a practice in internet and technology law. She can be contacted at (781) 449-4815, or by email at mlw@reachaccord.com. She invites you to visit her website at <www.reachaccord.com>.
A Tax Clause To Consider, continued from page 14
Agreement there will be a responsibility to indemnify the injured party. Second, it establishes the notion that certain areas of the IRS Tax Code are subject to wide interpretation. Furthermore, if the Agreement inadvertently doles out portions of the marital estate based on a misinterpretation of current tax law, neither party should suffer (or benefit) to the exclusion of the other. In the future, it also provides a means for bringing the Agreement back into compliance with the original intent of the parties. A "Tax Clause" is an acknowledgment of the complexity involved in drafting your Agreements so that they are both economically efficient and tax compliant. If you have any suggestions to make this particular "Tax Clause" a little more efficient they would certainly be welcome. Jim McCusker is a CPA and a certified financial planner. He can be contacted at (978) 256-1323, or by email at <James@McCuskerAssociates.com>. Winter 2004 â&#x20AC;˘ Vol. 3 No. 1
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18 PARENTING COORDINATION: Facts & Pending Legislation Provided by Judge Arline Rotman, (Ret.)
What is Parenting Coordination? Parenting Coordination is a child centered dispute resolution service that assists parents who are unable to reach agreement in developing safe and workable parenting plans. A Parenting Coordinator is a highly skilled neutral with knowledge and training in family law, conflict resolution, child development, family systems and domestic violence. A Parenting Coordinator may be necessary when: - parental communication is highly conflictual and/or ineffective; - the safety or well being of vulnerable children is at stake due to parental conflict; or, - parents exhibit anger and distrust that has demonstrably interfered with effective coparenting. Parenting Coordinators make decisions intended to resolve issues relating to minor children in a timely fashion and designed to minimize the harm incurred by children from exposure to their parents' conflict. Why is a Parenting Coordinator Needed? High conflict couples place a disproportionate burden on public resources, both in the courtroom and on court personnel. Post-separation ongoing inter-parental conflict is the single biggest predictor of poor outcomes for children of divorce. Courts have neither the resources nor the tools to micro-manage the communications between separated parents. Thirty-one of the thirty-four judges responding to the question "Have you ever appointed or would you appoint a Parenting Coordinator?" indicated that they have appointed a Parenting Coordinator. [The Probate Court Speaks Out, MCLE, (2002).] While many people agree about the usefulness of Parenting Coordinators in high conflict cases, there is insufficient clarity about the specific details surrounding appointment of a Parenting Coordinator, including:
What Does a Parenting Coordinator Do? Depending upon the circumstance of a particular case, the Parenting Coordinator may meet with the parties individually or jointly; talk with the children or relevant collaterals; and, may communicate via telephone or -email. The Parenting Coordinator tries to facilitate agreement between the parties. When that is not possible, the Parenting Coordinator is authorized to decide contested day-to-day issues. The Parenting Coordinator does not have authority to change custody or make substantial changes to existing court orders but operates within the authority defined by the Court or the parties.
High conflict couples place a disproportionate burden on public resources, both in the courtroom and on court personnel. Why Do We Need Legislation? Legislation is needed to: - authorize the courts to make post-judgment appointments; - permit the court to order fees to be paid by the parents; and, - delineate the responsibility of parenting coordinators without violating the due process rights of the parties. Given the volatility and litigious nature of parents needing Parenting Coordinators, the professionals accepting such appointments are increasingly concerned about liability. While it seems likely that the Court would extend the quasi-judicial immunity previously granted to Guardians Ad Litem, legislation would ensure their protection. What Are The Provisions Of The Proposed Legislation? The proposed legislation (as amended and attached hereto) addresses these needs by: - authorizing the Chief Justice of the Probate and Family Court to establish qualifications for Parenting Coordinators and promulgate rules and procedures governing Parenting Coordination;
- scope of authority; - court oversight; - qualifications; and - training.
- granting quasi-judicial status to Parenting Coordinators;
Legislation, court rules and protocols are needed to create a uniform understanding of the role and authority of Parenting Coordinators, establish a baseline of qualifications and expertise needed and ensure the authority of courts to make such appointments.
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- providing for court appointment of Parenting Coordinators upon written agreement of the parties with the parties delineating the scope of the Parenting Coordinator's authority;
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20 substantive motion for a decision on the disputed issue by the Court. - allowing the Parenting Coordinator to decide disputed child related issues with either party retaining the right to submit the issue de novo to the Court by motion; - requiring each Parenting Coordinator appointment to be for a term certain not to exceed two years. The parties may agree to extend, modify or terminate the appointment; authorizing the Court to terminate the appointment of a Parenting Coordinator at any time for good cause; - requiring the order of appointment to include designation of responsibility for the fees; and, - establishing a testimonial privilege wherein either party can prevent the Parenting Coordinator from disclosing any communications, opinions, observations, work product prepared by or case files held by the Parenting Coordinator.
Knowledge that communications with the Parenting Coordinator could be used in a subsequent court proceeding might well chill open and honest discussion. Why Is There A Testimonial Privilege? In order to work effectively with both parties, the neutral Parenting Coordinator must maintain the trust of each party. Communications between the parties and the Parenting Coordinator are not confidential. Requiring the Parenting Coordinator to testify would impair the Parenting Coordinator's perceived neutrality and thus negate the Parenting Coordinator's ability to continue working with the parties. Knowledge that communications with the Parenting Coordinator could be used in a subsequent court proceeding might well chill open and honest discussion. What are the Provisions for Judicial Review? The best way to ensure the parties due process rights is to allow for a true de novo judicial review. Keeping the Parenting Coordinator's decisions and work product from the court best assures no additional weight will be given to the Parenting Coordinator's views. The nature of the Parenting Coordinator's decision is frequently time sensitive, making expeditious judicial review necessary. The Legislation authorizes a party, after decision by the Parenting Coordinator, to bring the issue to the Court. Either party may file the
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How Can a Parenting Coordinator's Decision Be Enforced? Only an order of the court is enforceable. If either party fails to comply with a decision of the parenting coordinator, the other party may bring the issue to the court for de novo review. Only after a court order is issued will the non-compliance be subject to a complaint for contempt. Anecdotal experience has shown that parents working voluntarily with a parenting coordinator will generally comply with the Parenting Coordinator's decision. What Is The Practice Nationally? A Parenting Coordinator model has been implemented in a number of states including Arizona, California, Colorado, Georgia, Kansas, New Mexico, Ohio, Oklahoma, Oregon and Vermont. In June 2002, Oklahoma enacted the first specific statute "Parenting Coordinator Act." In March 2002 the Idaho legislature amended its Domestic Relations Code to allow for the appointment of Parenting Coordinators, effective July 2002. What Is The Status Of The Legislation? A prior version of the legislation, Senate Bill No. 1038, has been referred to the Joint Committee on the Judiciary chaired by Sen. Creedon and Rep. O'Flaherty. This legislation was filed in December 2002 after being drafted by an interdisciplinary task force assembled by the Massachusetts Chapter of the Association of Family and Conciliation Courts (AFCC) and supported by Sean M. Dunphy, Chief Justice of the Probate and Family Court Department. During the two years of the task force's existence, widespread input has been solicited from judges, attorneys, mental health professionals, and ADR providers. With continued collaboration, an amended version of the bill attached hereto, will be filed and offered for substitution prior to the public hearing.
PARENTING COORDINATOR BILL The Chief Justice of the Probate and Family Court is authorized to establish qualifications for Parenting Coordinators and shall coordinate a list of qualified Parenting Coordinators in the divisions of the Probate and Family Court. The Court is further authorized to promulgate rules and adopt procedures to define and limit the role and functions of the appointed Parenting Coordinator. 215:56C Parenting Coordinators (1) Definitions. As used in this section: Continued on next page Winter 2004 â&#x20AC;˘ Vol. 3 No. 1
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A "Parenting Coordinator" is a neutral third party appointed by the Probate and Family Court upon written agreement of the parties in accordance with the qualifications established by the Chief Justice of the Probate and Family Court. A court-appointed Parenting Coordinator shall be a quasi-judicial officer with continuing authority to act during the designated term of service. (2) Duties: Terms and Conditions. During the pendency of an action or in a judgment affecting parents and children, the court may by written agreement of the parties, appoint a Parenting Coordinator to address any disputed child-related issues, except custody. By written agreement, the parties shall delineate the scope of authority of the Parenting Coordinator. The Parenting Coordinator shall first attempt to facilitate agreement between the parties, but absent agreement, the
Legislation, court rules and protocols are needed to create a uniform understanding of the role and authority of Parenting Coordinators. Parenting Coordinator shall resolve the contested issue(s). After decision of the Parenting Coordinator of the disputed child related issues either party may submit the issue de novo to the Court by motion. Notwithstanding the motion of the parties, the interim decision of the Parenting Coordinator shall remain in effect until the Court enters an order. The Parenting Coordinator shall not file a report. Any court order appointing a Parenting Coordinator shall be for a term certain not to exceed (2) two years. Upon agreement of the parties, the court may extend, modify, or terminate the appointment. The court may terminate the appointment at any time for good cause. The court order appointing a Parenting Coordinator shall include designation of responsibility for fees between the parties. The Parenting Coordinator shall not be a party to the action, but shall have standing to request clarification, by motion, of the Parent Coordinator's role in the case. 233.20M Privileged Communications: Parenting Coordinators. (1) Definition. As used in this section a "Parenting Coordinator" means a person appointed by the court pursuant to section 56C of chapter 251. (2) Privilege. In any court proceeding and in any proceeding preliminary thereto and in legislative and administrative proceedings, either party shall have the privilege of refusing to disclose and of preventing a parent coordinator from disclosing, any communications, opinions,
Family Mediation Quarterly
observations, work product prepared by or case files held by the Parenting Coordinator. 119.51A Section 51A of Chapter 119 is hereby amended by inserting in line 12 after the words "probation officer," the words "Parenting Coordinator as defined in section 56C in chapter 215." The Facts About Parenting Coordination was drafted by the Parenting Coordinator Task Force put together by the Association of Family and Conciliation Courts (AFCC) and supported by Sean Dunphy, Chief Justice of the Probate & Family Court. The information was provided by Arline Rotman, a retired justice of the Probate & Family Court, who can be contacted at <ArlineR@aol.com>
PARENTING COORDINATION POLICIES A Sample Agreement & Release by Jane Appell, Ph.D. Jane Appell, Ph.D., is a licensed psychologist, who will serve as parent coordinator. As Parenting Coordinator, Dr. Appell will assist us, the parents, to communicate about our children. If we cannot agree on a particular issue, the parent coordinator will attempt to facilitate an agreement. If a disagreement arises which cannot be resolved, the parent coordinator will have the power to make a binding decision for us, which can be appealed to the court for modification. Dr. Appell will meet individually and/or together or conduct telephone conferences, as she deems appropriate to resolve differences between us. She will speak with the children and/or with their psychotherapist as needed to determine the children's adjustment and/or feelings about situations that may arise. Dr. Appell is not acting in the capacity of a psychotherapist to us or our family. Therefore, she is not acting in the capacity of a health care provider. The goals of any individual or joint sessions with one or both of us will be the enhancement of parenting, facilitation of the visitation process, and/or improved communication with the other parent. If there is a need for psychotherapy, a referral will be made to another psychotherapist or agency for such services. Dr. Appell is not acting as an attorney. Each of us may seek professional and legal advice at any time. Continued on next page
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24 The parent coordination process is confidential with some specific limitations. Dr. Appell will not disclose any information concerning us to an outside party without our joint written permission under those circumstances mandated by law. The most relevant legal limits to confidentiality are as follows: - If Dr. Appell has reason to believe that a child under the age of 18 is suffering serious physical and/or emotional injury as a result of abuse or neglect, she must file a report with the appropriate state agency. Should this situation arise, she would make an effort to discuss the circumstances with us. - If Dr. Appell believes that one of us is threatening serious bodily harm to another person, she will take protective actions, which may include notifying any potential victim and the police, seeking the hospitalization of the threatening party, and/or notifying the other of us if there is threat of harm to our child. - If one of us, or our child, is at serious risk to harm him/herself, Dr. Appell may be required to release information in order to seek hospitalization and/or to contact others who can help provide protection. - If so ordered to testify by the court or requested by the court to submit a written report. Dr. Appell may sometimes find it useful to consult about our case with other professionals. Since such consultants are attorneys and/or licensed mental health professionals, they are also legally bound to keep information confidential. During such consultations, information concerning our identity will not be revealed.
The parent coordination process is confidential with some specific limitations. We understand that it is not in our child's best interest to withhold information that affects them. Dr. Appell encourages the open exchange of information between her and us, as it serves the best interest of our children.
but not exclusively, face-to-face meetings, telephone conversations, E-mail correspondence, contacts with collaterals, document review and report writing, These costs are not usually covered by medical insurance; we will share the cost of all services equally unless otherwise specified. Dr. Appell reserves the right to charge one individual for time utilized by that party if that individual uses a disproportionate amount of time. We will each pay a retainer of $875.00 for a total of $1750.00, a fee equal to 10 hours of professional time. Dr. Appell will utilize these funds to cover the cost of services rendered. If/when the retainer is exhausted, additional funds will be requested; if either of us needs to cancel an appointment with the parent coordinator, that person shall provide 24-hour notice, unless it is an emergency, and the responsible party will be billed the fee for the allotted time of the session. Dr. Appell maintains the right to withdraw as parent coordinator if: - the parties refuse to pay for her services; - Dr. Appell believes a parent is not participating in good faith; or - Dr. Appell believes that the use of a parent coordinator is inappropriate for our case. We have reviewed the Parenting Coordination policies. I understand its provisions and agree to the provisions concerning payment of fees: ________________ Signature(s)
_______ Date(s)
RELEASE I give permission for Dr. Appell to provide and obtain minutes and/or verbal information to/from my attorney and that of my ex-spouse and the Guardian Ad Litem. This release shall be in effect so long as Jane Appell involved as a Parenting Coordinator for my family. Attorneys: ------------------, Guardian Ad Litem: ------------------
Should one of us depose or subpoena Dr. Appell, the requesting party shall pay her at her then current hourly rate for all time spent in activities related to the legal proceedings.
________________ Signature(s)
Specific Agreements Regarding Fees: The cost of all services will be billed at $175.00 per hour. Such services include,
Jane Appell, Ph.D., is a licensed psychologist who practices in Concord, MA. She can be contacted at (978) 287-4300, ext. 207, or by email at <Jappell@cris.com>
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ETHICAL QUANDARIES Editor's Note: This column seeks to encourage an ongoing, confidential conversation about the professional practice of mediation. Questions with ethical dimensions are emailed to MCFM members for collective consideration. All identifying data is redacted to insure confidentiality. All replies are published anonymously. Please join the conversation. Email <wallerstein@socialaw.com>.
WHEN IS IT OVER? I am a lawyer-mediator. All mediation clients sign a two-page written agreement that includes this sentence: "This agreement is terminable at will by either party or the mediator." Case I: In the midst of mediating their divorce, Hank decided to file a (1B) complaint. Wendy felt blind-sided when it was hand-delivered by a constable. Extremely upset, she called me hoping that I could convince Hank not to abandon the mediation. I assured her that I would try, and that I would call her after I spoke with him. My call to Hank was terse. He refused to discuss his reasons for filing and flatly said "the mediation is over." As promised, I called Wendy back and conveyed Hank's refusal to continue. The next day I wrote a brief letter of termination to both. I enclosed a final bill that included charges for my last conversation with Wendy, and the closing letter. Was it ethical to bill for time spent after Hank said "the mediation is over"? Didn't I
have a responsibility to call Wendy back? Isn't a letter acknowledging the end of the mediation a legitimate part of the process? Shouldn't we be paid for our real time mediating? If Hank refuses to pay for the two "post-termination" charges, what should I do? What would you do? Case II: Frank and Irene invested thousands of dollars in divorce litigation before deciding to try mediation. In our second meeting Frank refused to provide some financial information, and summarily rejected Irene's proposed parenting plan. Exasperated, she stood up and exploded in tears. "I just can't do this anymore" Irene screamed, and stormed out. Frank apologized for her behavior. He explained "she is very emotional â&#x20AC;&#x201C; but she'll get over it." He promised to immediately produce the requested financial information, and to offer a revised parenting plan, much closer to Irene's initial proposal. Frank and I spent 15 minutes discussing these matters after Irene left. Did Irene's hasty exit terminate the mediation? If so, should I have refused to talk to Frank about their parenting plan after she left? If Irene accepts Frank's revised parenting plan, was the mediation terminated and then re-started? What would you have done? If you ever had a divorce mediation client storm out of your office calling it quits, what did you do with the other client?
MCFM MEDIATORS' REPLIES: (Printed in the order in which they were
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received.)
continuing their discussions towards a mediated settlement.
Case I: When Wendy called, asking you to try and persuade Hank to reconsider mediation, she should have been advised Case I: I agree that it was ethical to bill for that the mediation was over as per their the letter acknowledging the end of the mutually signed agreement. When she mediation and that the mediator had a requested that you contact Hank, she responsibility to call Wendy back. should have been advised that that was However, if Hank refuses to pay for the two outside of your role as mediator and that once I've had people storm out of sessions. either party choose to They always came back, either on end the mediation, you their own, or with a little help. were ethically bound to comply with that decision. "post-termination" charges, I wouldn't chase him past a phone call inquiring about Case II: Irene's exit terminated the session his reasons for not paying. It's not worth the but not the mediation. ill-will engendered.
Cases I & II: Your examples seem clear cut to me and don't pose much of an ethical quandary at all. A mediator is not an advocate and mediation cannot occur absent the consent of both parties. Good business practice would also govern the solutions. Perhaps I've been in the adversarial world for too long. Do others have a different take?
Case I: I don't know about ethical. I can let 15 minutes go, if someone objects, but I bill for time spent to both members of the couple. Case II: If one member storms out, I usually continue "caucusing" individually with the other for 15 minutes, saying that this type of explosion is not unusual and that we will continue to explore options for
Case II: I don't think Irene's exit terminated the mediation. At least not yet. She's overwrought with Frank's stonewalling and the frustration of the whole thing. Time to caucus. I would call her and sympathize with her feelings of frustration and tell her that Frank became much more cooperative after she left, and it looks to you like things are much more workable than it seemed before she walked out. I would also talk to Frank about why he was so forthcoming with the requested info after Irene walked out rather than before? I might also prepare them for more caucusing in future sessions, trying to avoid things boiling over again. And yes, I've had people storm out of sessions. They always came back, either on their own, or with a little help (having their feelings addressed sympathetically by me and a solution suggested).
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28 Case II: Did Irene hasty exit terminate the mediation? YES/MAYBE.
For the most concise response: Case I: No. Yes. Yes. Yes. Nothing. See foregoing. Case II: No. Not applicable. No. What you did was fine. No.
Case I: Was it ethical to bill for the time spent after Hank said "the mediation is over"? NO.
If so, should I have refused to talk to frank about their parenting plan after she left? NO. If Irene accepts Hankâ&#x20AC;&#x2122;s revised parenting plan, was the mediation terminated and then restarted? YES close enough. What would you have done? The same thing you did.
If you ever had a divorce mediation client Didn't I have a responsibility to call Wendy storm out of your office calling it quits, back? YES a moral one not an ethical one. what did you do with the other client? I ascertained whether Since I'm not sure whether the mediation he or she (the exiting party) made is over when a client storms out, I do their point and talk briefly to the client who remains. whether the person in the room had changed their Isn't a letter acknowledging the end of the opinion/position. If so I gave the person mediation a legitimate part of the process? that left some time and then either the YES it's just not one that you will get paid spouse or I queried as to whether or not he for every time. or she was now willing to attempt to proceed. Shouldn't we be paid for our real-time mediating? YES. Here are a few thoughts about the If Hank refuses to pay for the two "post- interesting quandaries: termination" charges, what should I do? Nothing. It is often difficult to ascertain whether a client who storms out of the office actually What would you do? Nothing. wants to terminate the mediation. I have had a number of mediations where a client As a high school athletic coach once said leaves in anger, even stating "sometimes we win, sometimes we lose, unambiguously that the mediation is over, some games are called because of the only to return to mediation (sometimes a weather, but we always suit up for the few minutes later, but more often after I game." have spoken with him or her). So I don't consider the mediation terminated until I
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have determined (through either a phone conversation or e-mail) that the client no longer wants to continue the process. Since I'm not sure whether the mediation is over when a client storms out, I do talk briefly to the client who remains. Sometimes (as happened in Case II) the remaining client may respond to the crisis by indicating a willingness to reconsider a position, and my subsequent conveying of that willingness may induce the angry client to continue with mediation. (A whole other mediation process issue is how to avoid repetitions of the scenario with the couple in the future.) But even if the person who remains does not make any substantive suggestions that I can communicate to the spouse, he or she is invariably upset, and I think it is important to give that person the opportunity to reflect on what has happened and discuss next steps with the mediator. As for billing: In the past I have not charged for any time spent after one person has clearly terminated the mediation
case something can be done to salvage the process.) However, I may now add to my fee agreement a provision that if one member of the couple wants to end the mediation process and the other does not, I will be compensated for reasonable time spent in ascertaining that the mediation cannot be saved and in conveying that information to the spouse who wants the process to continue.
As usual, an ounce of prevention is worth a pound of cure. I find it helpful to explain at the beginning of the process and/or at other relevant, but not problematic times during the process that: 1, sometimes mediation can be hard work and emotional; and 2, that unless planned ahead by agreement to do a caucus, I will not communicate with either one individually regarding any issues. I find that clients quit (but don't really) or threaten to quit mediation with some frequency. When one storms out, I comment to the other that "this happens sometimes," that "I am not offended by it," and that "I would suggest
I may now add to my fee agreement a provision that if one member of the couple wants to end the mediation process and the other does not, I will be compensated for reasonable time spent in ascertaining that the mediation cannot be saved. because there is nothing in my current fee agreement that covers the issue, and when there is ambiguity, I do not bill. (In my initial mediation session I do routinely tell clients that though either one can terminate the process at any point, I hope they will discuss the reasons for the termination in
that we wait and see if it resolves itself over the next few days." I spend a few minutes with the other client speaking these generalities, fiddling with my file, taking care of the parking validation, etc. just to give the other client a few minutes to return
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Editorial: Glad Tidings On November 18, 2003, the Supreme Judicial Court established the civil right of samesex couples to marry in Massachusetts. The case, Goodridge et. al. v. Department of Public Health, was filed by New England’s Gay & Lesbian Advocates & Defenders (GLAD). In a press release issued that day GLAD’s lead counsel, Mary L. Bonauto said: “This is a momentous legal and cultural milestone. The law caught up with the reality that gay people and families are part of the fabric of our communities.” According to the NY Times (11/20/2003) “In recent years, support for gay rights has sharply increased.... That strongly suggests that eventually the views expressed by the Massachusetts court will be widely held.” The SJC decision was the first of its kind in the USA. Immediately afterwards the President of the United States, the Governor of Massachusetts, the hierarchy of the Catholic Church, and other like-minded conservatives formed a chorus of opposition. Before Goodridge, these voices were united in their opposition to civil unions. Since Goodridge, many former opponents have become supporters, in the hope of using civil unions to block same-sex marriages. On December 12, 2003, the Massachusetts Senate transmitted this question to the SJC. “Does Senate, No. 2175, which prohibits same-sex couples from entering into marriage but allows them to form civil unions with all ‘benefits, protections, rights and responsibilities’ of marriage, comply with the equal protection and due process requirements of the Constitution of the Commonwealth and ... the Declaration of Rights?” “The deans of the law schools of Yale and Stanford joined 88 other professors from around the country in arguing that only full implementation of gay marriage will meet state constitutional muster.” (32 M.L.W. 1030.) According to Harvard constitutional scholar Laurence Tribe, “The opinion is unambiguous: there is no legally defensible way to read it and conclude that anything short of marriage for same-sex couples could possibly satisfy the state constitution.” (GLAD press release, 12/23/2003.) On February 3, 2004, the SJC published its conclusion: “The answer to the question is ‘No.’” Some detractors assert that Goodridge lacks legal authority because the court was so closely divided (4-3). But many precedent-setting decisions have been comparably close. For example, the US Supreme Court established a woman’s right to choose by a split (5/4) decision in Roe v. Wade.
separate legislatures, and then ratified by a majority of voters. This is chronologically impossible before 2006. The process to amend the United States constitution is even more cumbersome, and will probably take much longer. Most likely, the Supreme Court of the United States will ultimately rule on a state’s right to uphold same-sex marriage. Meanwhile, unless the SJC decides to postpone or reverse its ruling in Goodridge, after Monday, May 17th, the marriage of same-sex couples will be celebrated in Massachusetts. While the struggle for this human right has been a long-fought, hard-won victory, the fight to assure its continuation is just beginning. Now is the time to be both vigilant and GLAD! The opinions expressed in this editorial are those of Les Wallerstein. He can be contacted at (781) 862-1099, or at <wallerstein@socialaw.com>.
“Being a problem solver will help deal with struggles in life. If everyone could be a good problem solver we wouldn’t have as many problems in life, and the world would be a better place.” Rachel Leshin, age 10 Ethical Quandaries, continued from page 28
to some semblance of order before leaving. If the other client is also on a roll, I will make a direct comment about not communicating individually. It is generally respected and I think appreciated and can enhance trust in the process. More often than not, I get a message of apology from the "stormer" within hours.
Some opponents are betting on constitutional amendments to stop same-sex marriages. However, an amendment to the Massachusetts constitution must be approved by two
Postscript: Ethical questions are part of every practicing mediators daily work. There are usually many points of view and no correct answers. Please submit ethical questions of common concern to <wallerstein@socialaw.com>. All questions and replies will be published in complete anonymity. We have a wealth of wisdom to share with each other.
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MCFM News
ANNOUNCEMENTS THE FUTURE OF MARRIAGE, DIVORCE & MEDIATION
How same-sex marriage will change the practice of family mediation will be the topic of our next Member’s meeting, on Wednesday, February 11th, from 2-4 PM at the Concord Courthouse. Attorneys Maureen Monks and Cynthia Bauman will discuss the legal and paradigmatic shifts that are anticipated in Massachusetts due to the SJC’s recent decision in Goodridge. Driving directions are available on our web site at <www.mcfm.org>
DIVORCE MEDIATION TRAINING A 30 hour interactive training will be presented by The Mediation & Training Collaborative, and co-sponsored by UMass Legal and Commuter Services. This training will address legal and emotional aspects of divorce as well as the topics of mediating postdivorce cases, and mediating with non-traditional couples. Opportunities to practice in coached, small group role plays are included. Prerequisite: 30 hours Basic Mediation Training. Trainers:
MEMBERS ARE INVITED TO BRING A GUEST
NEXT EXECUTIVE COMMITTEE & BOARD OF DIRECTORS MEETINGS March 15, 2004 Please email any agenda items for consideration either to President Mary Johnston at <maryt.johnston@erols.com>, or to any officer, all of whom are listed in the DIRECTORATE on page 35
MEDIATION PEER GROUP MEETINGS Merrimack Valley Area We are a group of family law mediators who have been meeting (almost) monthly for about three years. The criterion for membership is a desire to learn and share. 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 and directions.
Dates: Location: Cost:
Betsy Williams, Cate Woolner, Larry Saunders, Oran Kaufman and Court Dorsey. May 14, l5, 21 & 22, 2004: 9 a.m. – 5:30 p.m. University of Massachusetts, Amherst $725 ($675 with early registration postmarked by April l6)
For brochure or more information please call: (413) 774-7469 ext. 16, or email <shackney@fcac.net>
BASIC TRAINING: MEDIATION AND CONFLICT RESOLUTION A 36 hour basic training in mediation and conflict resolution will be presented by Framingham Court Mediation Services (FCMS), a court-approved program. An apprenticeship may be available upon successful completion of this training. Dates: March 13 – April 3, 2004.
Cost: $ 650
For more information and inquiries about CEUs, please call: (508) 872-9495, or visit our web site at www.framinghammediation.org.
SUDDENLY SINGLE
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.
A two-hour workshop designed for women who find themselves – either through separation, divorce, or death – suddenly single. Participants will learn to identify assets and liabilities, track income and expenses, understand investments, and identify personal insurance needs. The seminar is interactive with time for questions and answers – and mathematics is not a prerequisite!
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Join Us Announcements continued
In 2004, this seminar will be held from 7 to 9 p.m. as follows: Thursday, February 26th: Middlesex Community College (Lowell campus) Thursday, March 4th: Littleton High School Tuesday, March 9th: Westford (Rodenbush Community Center) Tuesday, March 16th: North Chelmsford (Chelmsford High School) Thursday, March 18th: Concord Carlisle High School Thursday, March 25th: Chelmsford Community Center Tuesday, April 13th: North Chelmsford (Chelmsford High School)
MCFM membership is open to all practitioners and friends of family mediation. MCFM invites guest speakers to present topics of interest at four, free, member education meetings annually. Educational meetings often satisfy certification requirements. Members are encouraged to bring guests at no cost. MCFM members also receive the Family Mediation Quarterly and are welcome to participate on any MCFM Committee. All members are listed on-line at MCFM’s web site, and all listings may be “linked” to a member’s email and web site. Annual membership dues are $90. Please direct all membership inquiries to DeLaurice Fraylick at <mcfm23@aol.com>.
Fees usually range between $25.00 and $30.00 per seminar. Instructor Renée W. Senes is a financial consultant and independent investment advisor who can be reached at <rsgold@bicnet.net>.
REFFERAL DIRECTORY: Every MCFM member is eligible to be listed in the MCFM Referral Directory. Each listing in the Referral Directory allows a member to share detailed information explaining her/his mediation practice and philosophy with prospective clients. The Referral Directory is printed and mailed to all Massachusetts judges, and to each listed member. The referral directory is also available on-line at the MCFM web site.
MASSACHUSETTS COLLABORATIVE LAW COUNCIL, INC.
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 MCLC offers legal representation to people in conflicts who share a commitment to resolving disputes without litigation. To find out more, or to locate a collaborative lawyer near you, go on-line at <www.massclc.org>
FMQs The cost of additional FMQs is $5.00 each for members, and $7.50 each for non-members. Supplies are limited. Please mail requests for additional copies to DeLaurice Fraylick, 23 Parker Road, Needham Heights MA 02494-2001, and enclose a check made payable to MCFM. An archive of all but the two most recent editions of the FMQ is also available in PDF on the MCFM web site at www.mcfm.org. This resource offers an expanding trove of mediation materials. PDF editions of the FMQ can be downloaded and printed on any computer with “Acrobat Reader” software, which is available for free on the internet at www.adobe.com
The annual Referral Directory fee is $60. Please direct all referral directory inquiries to Jerry Weinstein at <JWeinsteinDivorce@comcast.net>. CERTIFICATION: MCFM was the first organization to certify family mediators in Massachusetts. Certification is reserved for mediators with significant mediation experience, advanced training and education. Extensive mediation experience may be substituted for an advanced academic degree. A copy of the MCFM certification requirements is available on-line at the MCFM web site. Every MCFM certified mediator is designated as such in both the electronic and the printed Referral Directory. Only certified mediators are eligible to provide mediation services to the Massachusetts Probate & Family Court through MCFM. Certification must be renewed every two years. Certification applications cost $100, and re-certification applications cost $50. Certification and re-certification applications are available on request from Lynn Cooper at <lynnkcooper@aol.com>. MCFM’s web site: www.mcfm.org
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Editorâ&#x20AC;&#x2122;s Notice
Directorate MASSACHUSETTS COUNCIL ON FAMILY MEDIATION, INC. 23 Parker Road, Needham Heights, MA 02494-2001 Local Telephone & Fax: (781) 449-4430 email: mcfm23@rcn.com web site: www.mcfm.org
TOLL FREE: 1-877-777-4430
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 President
Vice-President
Vice-President
Mary T. Johnston, 47 Church Street, Wellesley, MA 02482-6326, (781) 431-8552, email: maryt.johnston@erols.com Fern L. Frolin, Grindle, Robinson, Goodhue & Frolin, 40 Grove Street, Wellesley, MA 02482, (781) 235-3300, email: ffrolin@grcattys.com Kathleen A. Townsend, Divorce Mediation Group, Inc., 1441 Main Street, Springfield, MA 01103, (413) 733-4444, 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, 20 Park Plaza, Room 530, Boston, MA 02116, (617) 482-8660, email: FDBenson@ix.netcom.com
DIRECTORS
Lynn K. Cooper, Michael L. Leshin, Karen J. Levitt, Harry E. Manasewich, Steven Nisenbaum, David River, Lynda J. Robbins, Barry L. Shelton, Debra L. Smith, Marion Lee Wasserman, Les Wallerstein, & Mark I. Zarrow
DIRECTORS EMERITUS
John A. Fiske, Janet B. Weinberger, Jerome Weinstein & Barbara N. White
ADMINISTRATOR
DeLaurice Fraylick, 23 Parker Road, Needham Heights, MA 02494-2001, (781) 449-4430, email: mcfm23@rcn.com
Family Mediation Quarterly
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 previous editions of the FMQ are available on the MCFM web site <www.mcfm.org>. MCFM members may submit notices of mediation-related events for free publication. Complimentary publication of notices from mediation-related organizations is available on a reciprocal basis. Commercial advertising is also available. Please submit all contributions for the FMQ to the editor, either by email or computer disk. Submissions may be edited for clarity and length, and must scrupulously safeguard client confidentiality. The following deadlines for all submissions will be observed: Summer- July 15th Winter- January 15th
Fall-October 15th Spring- April 15th
All MCFM members and friends of family mediation are encouraged to contribute to the FMQ. Every mediator has stories to tell and skills to teach. Please share yours. Winter 2004 â&#x20AC;˘ Vol. 3 No. 1