MCFM
FAMILY MEDIATION QUARTERLY Vol. 5 No. 1
Winter 2006
The Massachusetts Council On Family Mediation is a nonprofit corporation established in 1982 by family mediators interested in sharing knowledge and setting guidelines for mediation. MCFM is the oldest professional organization in Massachusetts devoted exclusively to family mediation.
From The President: Laurie S. Udell One of a mediator's foremost jobs is to draft the Separation Agreement (or a Memorandum of Understanding for a non-attorney mediator) that the parties will bring to court. What topics the mediator brings up can be controversial. One example would be whether the mediator should raise the issue of cohabitation with reference to when alimony might stop. Another example would be whether a mediator merely mentioning that inherited property may be divided by a court is sufficient, without explaining the various factors a court often looks at in deciding whether the inheritance will remain with one party, or be divided between the parties. In addition, the choice of words a mediator uses to effectuate the couple's wishes can be harrowing; the challenge for the mediator is to use "neutral" language that favors neither party. This is often harder than it might at first glance appear. However, an even bigger issue for the mediator is — should the mediator merely put into words what the couple is agreeing to — no matter how "unfair." Or is it the mediator's responsibility to draft a "fair' agreement? We know that a judge must approve the agreement as being "fair and reasonable" but should a mediator try to ensure that the Separation Agreement be approved, or take a chance that it won't. Certainly, there's a range of what is "fair" and we can never be positive what a judge will approve of; however, what if the agreement is clearly unfair? An obvious example of being clearly unfair might be if the couple had a long-term marriage with two minor children where the husband is a high wage earner and the wife is a stay-at-home mom with only a high school degree and no chance of inheritance, and minimal assets to divide. If, in such a case, the wife chose to forego alimony, past, present and future, and the agreement survived, that would be a wholly unacceptable provision. Should a mediator have his or her name attached to such a document? I would emphatically answer "No" even if that is what the parties have agreed to (the mediator having explained the role of alimony as well as the possible or likely outcomes in a courtroom). In my opinion, a mediator has a responsibility to make sure that the agreement meets a minimum standard of fairness, and although the mediator cannot guarantee that a judge will ultimately approve the agreement, there should be a good likelihood of that occurring, or the mediator has not done his or her job properly.
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EDITOR’S NOTICE MCFM
Family Mediation Quarterly Les Wallerstein, Editor 1620 Massachusetts Avenue Lexington, MA 02420-3802 (781) 862-1099
wallerstein@socialaw.com The FMQ is dedicated to family mediators working with traditional and non-traditional families. All family mediators share common interests and concerns. The FMQ will provide a forum to explore that common ground. The FMQ intends to be a journal of practical use to family mediators. As mediation is designed to resolve conflicts, the FMQ will not shy away from controversy. The FMQ welcomes the broadest spectrum of diverse opinions that effect the practice of family mediation. The contents of the FMQ are published at the discretion of the editor, in consultation with the MCFM Board of Directors. The FMQ does not necessarily express the views of the MCFM unless specifically stated. The FMQ is mailed to all MCFM members. Copies are provided to all Probate & Family Court Judges, all local Dispute Resolution Coordinators, all Family Service Officers and all law school libraries in Massachusetts. An archive of all previous editions of the FMQ are available on-line in PDF at <www.mcfm.org>, accompanied by a cumulative index of articles to facilitate data retrieval. MCFM members may submit notices of mediation-related events for free publication. Complimentary publication of notices from mediation-related organizations is available on a reciprocal basis. Commercial advertising is also available. Please submit all contributions for the FMQ to the editor, either by email or computer disk. Submissions may be edited for clarity and length, and must scrupulously safeguard client confidentiality. The following deadlines for all submissions will be observed: Summer- July 15th Fall- October 15th Winter-January 15th Spring- April 15th All MCFM members and friends of family mediation are encouraged to contribute to the FMQ. Every mediator has stories to tell and skills to teach. Please share yours.
Winter 2006 â&#x20AC;˘ Vol. 5 No. 1
Contents 1
CREATING FAMILY MEDIATION IN MASSACHUSETTS By John A. Fiske
6
MCFM'S 1st PRESS RELEASE: November, 1982
8
DIVORCE MEDIATION AND THE INTERNET, Part I of II By James Melamed
13
REVISITING POST-DIVORCE HEALTH INSURANCE RIGHTS IN LIGHT OF RECENT CASE LAW DEVELOPMENTS By Clare D. McGorrian
18
IN PURSUIT OF JUSTICE Lawyers and Mediators Negotiating Identity By David B. River
27
THE DIVORCE MORTGAGE TRANSACTION & MEDIATION By Carol F. Nemet
29
VETERANS' BENEFITS & CHILD SUPPORT By Patricia A. Shea
32 33 34 37
What’s News? Editorial MCFM News Letter
38 42 43 44
Announcements Join Us Directorate Editor’s Notice
MCFM © 2006 All Rights Reserved Winter 2006 • Vol. 5 No. 1
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CREATING FAMILY MEDIATION IN MASSACHUSETTS By John A. Fiske Editor's Note: This article was compiled from an email following the author's acceptance of MCFM's first annual John Adams Fiske Award for excellence in mediation in October, 2005. The First Annual award gives rise to this lengthy tribute to many fellow creators of family mediation here. The cast, in some semblance of order of appearance:
Janet Wiseman She was at the meeting. She said a lot of smart things and asked good questions and we talked afterwards. She agreed she would teach me about therapy and I agreed I would teach her about family law. That conversation led to our joint article in Social Work Magazine in 1980 about a social worker and a lawyer working together to mediate divorces. Our rich collaboration continues to this day.
Jerry Weinstein I first read about him in Crete in April, 1979. Christina Robb had written an article in the Globe Magazine about the Divorce Resource and Mediation Center, and my lawyer friend Ken Fish brought some of his family to Greece during spring vacation to meet up with the Fiske family for a week and to bring us a treasured care package with goodies for all 5 of us. My request was for any information about Massachusetts divorce law and mediation, and he brought Ruth Budd's MCLE book on family law and the Globe article.
Larry Madfis He was the first lawyer involved in Massachusetts divorce mediation, with help from Oliver Fowlkes. Larry explained patiently to me, about two days after I returned to America from our family voyage, that the way to avoid disbarment is not to represent either party and to tell them each to have a lawyer. He helped develop the first mediation program with Judge Ginsburg. He taught mediation at the Divorce Center in Framingham. He was always a generous and caring resource for anyone wanting to learn more about mediation.
So I called Jerry when I got back to Massachusetts in the summer of 1979 and he invited me to a meeting at his house along with other people interested in mediation.
Professor Frank Sander "So you want to be a divorce mediator," he said approvingly in his office in the summer of 1979. "You're riding the crest of a wave and you're going to have a marketing problem." He told me to go see Ted Norton, the executive director of the Boston Bar Association, because the BBA was about to publish an ethical opinion on the role of the lawyer as a divorce mediator. He said a lawyer named Andy McGinnis had asked for the opinion a year ago, and Frank of course had helped Andy write the request, and Frank of course helped Robert Muldoon and others at the BBA write the answer.
(About ten years later, a bunch of mediators started returning to Jerry's living room for case consultations about once a month, which brightened those Friday afternoons for several years.. We had some lively discussions. We never did resolve whether you HAVE to have appraisals of all the assets.)
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I went to see Ted Norton. He pulled the just published opinion out of the drawer and said, "Read this. It's in the June Boston Bar Journal." That two page opinion is the first ethical opinion of any bar association in the country, and you all know what it says: Divorce mediation is okay. You won't get disbarred. Just tell the clients you don't represent them. Tell them they each have the right to their own lawyer. I still carry that opinion in my briefcase. Goethe says, "When you commit yourself to something, Providence takes over."
the next day. Their spirit still pervades my work, and Regie still helps to steer me through occasional hazards. Julie Ginsburg She was a social worker at Emerson Hospital. She started hosting meetings of mediators to talk about their cases. She called it supervision, which was a new concept for me since lawyers don't get together to talk about their cases and if they ever do they certainly don't think anyone is supervising them.
Judge Ginsburg He sent me my first Regina Healy & Diane Lund They took mediation because he said if he didn't I me in. If anyone gave me legitimacy in the would just spend the rest of my life talking eyes of the legal profession, they did. They about it. My secretary came into my office changed the name of the firm to include me, one morning and said, "There are four and said "of course you have to be our people here to see you. They were sent over partner. We'll teach you family law and by a judge." I came into the waiting room you'll teach us mediation." They showed me and met the husband and wife and their drafts of early mediation ideas they had lawyers. I took them into the conference written in about 1977. Diane Divorce mediation is okay. You gave up her office and moved into Regie's office so I could won't get disbarred. Just tell the have my own office. A clients you don't represent them. woman called me and said, "My husband and I saw your Tell them they each have the right ad in the paper for mediation. to their own lawyer. He wants to know why should we hire a mediator who advertises?" I said, room and sat at the head of the table and the "My partner teaches at Harvard Law parties sat on opposite sides with their School." She said, "I'll call you right back." lawyers next to them. I looked at them and She did, and they hired me. was trying to figure out what to do next when the wife brightened up and Diane represented me when I was deposed exclaimed, "We understand we are some and my notes subpoenaed, and when I sort of EXPERIMENT!" asked her how I could ever repay her for the 12 hours she spent at the deposition, in He was skeptical for a while, but Julie took the midnight cab back to our office, she care of that. He now proselytizes the said, "Write a confidentiality clause in your mediation process for the right couples at initial mediation agreement." Which I did Continued on next page Winter 2006 â&#x20AC;˘ Vol. 5 No. 1
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every opportunity and recently arranged for MCLE to offer a divorce mediation training program for which 50 lawyers signed up. (We may not have arrived yet, but we have come a long way.) Paul Pearson The head of the Mass Bar Family Law Section and the Domestic Relations Department at Hill & Barlow (along with Nonnie Burnes, David Hoffman and Janet Weinberger), he quickly saw the advantages of divorce mediation and helped me get the Mass Bar Association to do several useful things in the mid 1980's: Divorce Mediation Training Programs co-sponsored with the MCFM, featuring Margaret Shaw in 1985, Chris Moore in 1986, and Patrick Phear in 1987. Legislation allowing couples to file a joint petition for a no-fault divorce.
Barbara White & Lynn Halem They came to Healy, Lund and Fiske one day to explain to us how they wanted to start their own divorce mediation practice and to get advice from us. Barbara was one of the early leaders of the MCFM and served for years as our first competent treasurer. She often said, "whatever you're doing out there, do it in the name of the Council." She understood the strength of having a respected and viable MCFM.
Phil Woodbury joined Healy, Lund and Fiske in 1982 and wanted to learn how to mediate divorcesâ&#x20AC;&#x201D;so he sat in with me and watched a few. He took training from Jerry Weinstein. We talked a lot and I tried to listen better to my clients as a result. He was there to give great encouragement during and after stressful mediations, or sideswipes at mediation from Just don't exclude anyone and judges or lawyers or others. His you'll avoid a lot of problems. background in child care and working with runaway teenagers in Legislation allowing mediation the early 1970's gave him a lot of communications to be confidential. An credibility with his own clients, and his ethical opinion on the role of the lawyer as scientific mind helped me develop theories about how mediation worked and did not divorce mediator. work. He represented me when I was called Patrick Phear He was here, he was there, on the carpet by a judge for overreaching Patrick was everywhere. He founded the my role as a mediator, and on numerous Children's Rights Project. He drafted the occasions helped me avoid a repeat.. confidentiality bill, if I remember correctly. He trained mediators. He persuaded Judge Diane Neumann I first learned of her when Ginsburg to support mediation. He I opened the Boston Globe one winter day in stimulated all our meetings: "Why 1982 and there was an article about divorce shouldn't we bring the children to the mediation by a mediator in Holliston. I met mediation? They do in England. They take her through a meeting at the Mass. Bar the 3 month old baby and prop him up on Association. We started collaborating soon the table and just keep on talking." etc., afterwards on various mediation projects. In etc.. It is a loss not to have his South 1988, she started talking to Phil about training people to become mediators and we African lilting voice around us any more. Family Mediation Quarterly
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started Divorce Mediation Training Associates, training about 20 mediators in February of 1989 in our first class. Eileen Shaevel She worked with Patrick on a number of projects, and started her own mediation practice early on. "The She was another respected family lawyer who helped mediation to to develop a good name in Boston.
of family mediators" which resulted in our meeting with Janet Wiseman and Jerry and then a larger group at the Divorce Resource and Mediation Centerâ&#x20AC;&#x201D;where Sam Margulies came up from New Jersey to provide technical assistance from the
introduction of mediation family law problems is as radical as it is sensible. We hope profoundly that it works."
Ruth Budd was an old friend from my Smith College courting days. She was horrified when I told her in July of 1979 that I was going to be a divorce mediator because she thought I was representing both parties and she didn't want her classmate's husband to get disbarred. She became a leading articulate critic of divorce mediation and we had many vigorous debates on the subject. When Jerry and I saw her at our first MCFM conference at Pine Manor in the spring of 1982, we asked her in unison, "What are you doing here?" She replied with her twinkling smile, "If you can't lick 'em, join 'em." Other Marvelous Contributors include Ron Fox, an early president of the Mass. Council, and Richard Hoffman, Mass Bar President in 1985 who saw great virtues in the mediation process. He wrote an important article about how lawyers should work together to settle cases. He began a four way meeting as lawyer for the husband, with me as lawyer for the wife, by looking at my client and asking her tenderly, "What are your concerns?" We settled the case that day, Joanne Forbes who called me in 1982 and said, "I'm a divorce mediator in Lancaster, Mass. and we should have a professional association
national Academy of Family Mediators and spent a day with us. His message was simple: "Just don't exclude anyone and you'll avoid a lot of problems." A Parallel Track Meantime there were mediators like David Matz at U. Mass., and Tack Burbank in Pittsfield who were doing similar things. Respected lawyers like Hans Loeser in Boston and Peter Contuzzi in Northampton started mediation programs in the Superior Court, with Professor Sander again. Judge David Mazzone started mediation in the United States District Court for Massachusetts. They helped create a climate that mediation is here to stay, and not a passing fancy. So please view any award to any individual as the recognition of a part, a piece of something refreshing. There are other heroes and heroines not mentioned because I forgot, or because they are part of the affirming current. Martie Fiske, who thought up the idea and kept telling me to do it and who kept her teaching job so we had at least one income in the beginning, understands.
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5 "The introduction of mediation to family law problems is as radical as it is sensible. We hope profoundly that it works." So wrote a judge [Rudolph Cass] and his wife to me in October, 1979. We all know how much sense it makes, and how it works.
John A. Fiske is a founding member, past president and director emeritus of MCFM. He is also a partner at Healy, Fiske & Richmond, a Cambridge firm concentrating in family law and mediation. John can be contacted at (617) 354-7133, or at jadamsfiske@yahoo.com
"We work in the dark â&#x20AC;&#x201D; we do what we can â&#x20AC;&#x201D; we give what we have. Our doubt is our passion and our passion is our task." Henry James
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MCFM'S 1st PRESS RELEASE: November, 1982
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"Housekeeping ain't no joke." Louisa May Alcott
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DIVORCE MEDIATION AND THE INTERNET Part I of II By James Melamed The Internet is changing the way divorce mediation is practiced and experienced. The Internet is becoming an ever more integral part of effective and affordable divorce mediation services and programs. The following uses of the Internet are common and increasing: • participants seek mediators through Internet search •
mediators and programs describe their services through professional web sites
•
participants and their attorneys exchange information about possible mediators by exchanging links to mediator web sites
•
mediators distribute information to clients by email with attachments and web pages links
•
mediators and participants correspond separately or jointly by email
•
mediators use email mailboxes as a filing system
•
mediators receive faxes as attachments to email
•
draft agreements may use 'track changes' features showing changes
•
mediators utilize web resources to obtain information and educate participants
•
participants and mediators obtain statutory, regulatory, child support, and other information online
•
participants and mediators perform child support calculations online
•
mediators engage in professional education online
•
mediators and participants utilize secure discussion environments
•
participants may utilize online resources to help them implement their agreement
Adapting Internet technologies to mediation is not accidental. Increased use is based upon the effectiveness, convenience and affordability of various Internet strategies. In addition to enhanced communication capacities, the Internet offers mediators and participants a vast knowledge base and discussion communities. The Internet is for many a comfortable, if not preferred, and empowering means of research and communication. The Internet is also relatively free of safety concerns, perhaps because it is impossible to receive a bloody nose over the Internet and because Internet communications are memorialized, which creates a measure of accountability. Beyond Face-to-Face Dialogue Does all this mean that the Internet will replace face-to-face divorce mediation? The end of face-to-face divorce mediation does not loom, at least not in the short term. Current utilization of the Internet in the divorce arena is evolving more as an augmentation
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9 than replacement of face-to-face discussions. One can, however, envision a day when the context and medium for mediation discussions may in fact become primarily electronic, with face-to-face meetings being the augmentation, perhaps even the exception. While this may sound somewhat futuristic, it is already happening in Singapore where the country is fully connected by broadband and there are substantial traffic and congestion obstacles to offering
delivered over the Internet does not impact the cost of delivery. Client expectations are rapidly shifting toward the availability of complete information and the enterprising mediator and program is responding with swift Internet response. A user friendly web site and effective Internet practices are emerging as the standard for effective divorce mediation practice.
Legitimate questions can and should be raised about Internet security, confidentiality and the “digital divide” (those with lower incomes having less access to The end of face-to-face divorce the Internet). In examining mediation does not loom, at least these issues, we also need to be fair and to examine the security, not in the short term. . confidentiality and distribution mediation services downtown. Use of the of non-Internet communications and Internet will continue to grow based upon services. The digital divide is in fact less of such factors as ease, economy and capacity. an issue every day as the Internet is rapidly All said, the communication abilities, becoming as ubiquitous as having a phone. capacity building and participatory With the increasing ubiquity of the Internet, qualities of the Internet are wonderful we may well find the Internet to be a means extensions of the face-to-face mediation of delivering mediation services to places process. Few wise mediators resist and people that has never before been additional process options and in the possible. While mediation on the Internet Internet we have a number of newly available approaches Few wise mediators resist that can meaningfully enhance additional process options and in the practice and experience of the Internet we have a number of divorce mediation.
newly available approaches.
Example: It is now common for mediators to direct clients to the mediator’s web site, to send information as an email attachment, or to send information by fax, rather than using “snail mail.” In fact, failing to expeditiously deliver information to potential clients may jeopardize the mediator getting a case. In addition to being immediate, the volume of information
may be imperfect, it may be no more imperfect than other processes, and surely better than no mediation at all. The use of the Internet in mediation raises a number of policy issues. If we can save costs and time and create capacity and follow-through with the Internet, this is compelling. Utilized well, the Internet offers a vital channel and
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10 bridge between the mediator and participants. The Internet especially makes sense when there is difficulty in scheduling meetings due to work shifts, geography, animosity, fear or other obstacles. In these situations the Internet may be the only effective and affordable means of delivering services. Use of the Internet in divorce mediation should be viewed as a set of opportunities that are available to mediators and participants for enhancing and, in some cases, replacing face-to-face mediation discussions.
capably as an extension of individual party caucus and is remarkably convenient and affordable. Internet communications take little time to read and clients do not hear a ticking of the billing meter. When the Internet is utilized for caucus, the noncaucusing participant does not need to sit in the waiting room or library growing resentful at being ignored. While there is much to recommend about the Internet, it should also be recognized that there are certain limitations and risks to its use. For example, unless you have a real-time Internet hook-up (chat, audio or video) you are not able to “interrupt” a participant’s (possibly foolish) presentation, so they may go off on long tangents that are not particularly helpful or are perhaps even destructive. There are also meaningful issues of security and confidentiality that are discussed below.
The Joy of Asynchronous Communication Perhaps the most notable quality of most Internet communications is the common “asynchronous” nature of the communication. This means that most email and web-based communications are not a live “real time” experience, but rather the message is crafted and only sent when ready. This process Asynchronous Internet communication of thoughtful, crafted messages has the advantage of being edited in and responses is contrast to impulsive responses that valuable to the mediator and the often take place in real time face-to-face mediation process. mediation discussions. Asynchronous Internet communication has the advantage Some users also say that text-based Internet of being edited in contrast to impulsive communication is not good for effectively responses that often take place in real time developing rapport. This may change as the face-to-face mediation discussions. Internet becomes more “real” with audio and video communications as part of the Experienced mediators are well aware of expansion of broadband connectivity. the benefits of asynchrony. This is one reason that many mediators “caucus” (meet The Development of Rapport Without separately) with participants. Mediators rapport, the mediator has nothing. want to slow down the process and assist Experienced mediators know the critical participants to craft more effective importance of developing rapport with proposals. Surely, the Internet works Continued on next page Winter 2006 • Vol. 5 No. 1
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participants early in the process. One challenge to using the Internet for divorce
Without rapport, the has nothing.
mediator’s capable Internet performance will enhance participants’ respect and admiration for the mediator. It will mediator also likely improve the participants’ experience of the mediation process.
mediation is the difficulty of achieving rapport. At least at present, face-to-face meetings take place in a richer sensory environment. The rapport building capacity of the face-to-face environment, and also of a phone conference call, is important for the online mediator to note. It may be worthwhile for a group that intends to work online to hold one or more face-to-face meetings to clarify process, develop rapport, consolidate progress and develop the means of continuing an effective dialogue while online. For the mediator who wants to do as much as possible online, an initial face-to-face meeting or phone conference call will add “feeling” to online discussions and is then also available as may be helpful as the online mediation progresses.
Assuming the benefits of face-to-face meeting, particularly for joint discussions, it is also worth noting that the face-to-face benefit likely lessens over time. Once rapport is in place, there are few issues that cannot be discussed and agreed upon over the Internet. When it comes to decisionmaking, the unrushed Internet environment may in fact be preferable to the pressure of the face-to-face environment. Distance and Post-Decree Modification This use of the Internet is particularly compelling when participants live at a distance. The relative cost savings of Internet communications becomes greater as the distance between participants increases. The Internet is especially capable of dealing with post-decree adjustment of parenting and support agreements. The Internet may be a safer and less pressurized environment to consider possible changes than a single “crisis” mediation meeting. The Internet may, thus, especially be worth considering for post-decree modifications. With familiarity
It is important when thinking about the Internet to not think in “either/or” terms. We can build rapport in person, by phone and on the Internet. There is no reason to limit our modalities of communication. If we are wise, we will be responsive to the participants’ desired ways of This use of the Internet is communicating. In this context, we will surely see an increasing number particularly compelling when of participants wanting to use the participants live at a distance. Internet in the mediation process. All mediators benefit from a quality web site and responsive and capable email and web practices. Assuming that the Internet is within participants’ comfort zones, the
presumably in place and the divorce somewhat in the past, more participants are using the Internet to consider modifications to their arrangements, especially when parents
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12 live at a distance. The reality is that many divorced parents are already using email as the primary means of communicating both at work and in their parenting relationship. Extending this to include mediation discussions is more and more natural. If getting together is in any way difficult or costly, we will find more and more modification discussions taking place online.
their thinking “out loud” and “run it by” the mediator in terms of reasonableness, benefits and costs. The mediator and participant can engage in an ongoing dialogue about perceptions, interests, options, means of improving the presentation and the like. The mediator is similar to a pen pal assisting participants with their thoughts and moving them forward. It is noteworthy that many participant communications are generated during the late evening, after the children have been put to bed and participants are alone with their thoughts at the end of a long day. Not only do these Internet
Using the Internet Between Face-ToFace Meetings Internet communications can be the glue and grease that keep a dialogue effectively moving forward between face-to-face meetings. Channels of communication can be opened with each Internet communications can be the individual participant glue and grease that keep a dialogue (an extension of the effectively moving forward between caucus) and with the parties jointly (an face-to-face meetings extension of joint discussions). The Internet is also communications assist participants to move particularly good for assigning and incrementally forward in their thinking, completing individual or joint homework. they are also convenient, efficient and Homework assignments can support affordable. incremental progress toward agreement. Some might say that the Internet is the mediator’s new best friend. The Internet allows the mediator to send correspondence to participants in a flash, attach resource documents or a draft agreement, and direct participants to check out valuable resources on the web by providing web links. Wow! It is also common in divorce mediation, once an email channel has been created and rapport is in place, for either the mediator or a participant to stimulate an email “stream of consciousness” series of communications. Participants tend to share
Jim Melamed co-founded (with John Helie) Resourceful Internet Solutions and Mediate.com in 1996. Jim founded The Mediation Center in Eugene, OR in 1983, and is pastChair of the Oregon Dispute Resolution Commission. Jim teaches Mediation and Online Dispute Resolution at Pepperdine University School of Law and he invites you to visit his website at www.internetmediator.com This article was first published in January 2002.
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REVISITING POST-DIVORCE HEALTH INSURANCE RIGHTS IN LIGHT OF RECENT CASE LAW DEVELOPMENTS By Clare D. McGorrian A person going through a divorce is at risk of losing health insurance. In 1981, the state legislature passed Mass. Gen. L. c. 175, § 110I, which created continued eligibility under a former spouse's group health plan. Recently, in Foster v. Group Health Incorporated, the Supreme Judicial Court interpreted c. 175, § 110I for the first time. This article reviews the legal right of a Massachusetts spouse to remain on an exspouse's group health plan, analyzing the potential impact of Foster and Simpson v. T.D. Williamson, Inc., a recent Tenth Circuit case defining "legal separation" under COBRA. Massachusetts State Laws Governing Post-Divorce Health Insurance A Probate and Family Court judge must determine if the obligor under a support order has group health insurance that will cover the other spouse. If available, the judge will generally order such coverage to continue. The judge must consider health insurance coverage upon commencement of the action (Supp. Prob. Court Rule 411), motions for temporary orders (e.g., G.L. c. 208, §§ 17, 20; G.L. c. 209, § 32), and entry of final judgment for divorce (G.L. c. 208, § 34) or separate support (G.L. c. 209, § 32). Mass. G.L. c. 175, § 110I allows a spouse to remain on the other spouse's employersponsored group plan after a divorce or legal separation. If a member of a group plan is a party to a judgment absolute of divorce or separate support, the member's
spouse "shall be and remain eligible" for coverage, "as if said judgment had not been entered." G.L. c. 175, § 110I(a). Eligibility for coverage lasts as long as the insured spouse is a participant in a group plan, whether or not judgment was entered before the effective date of the plan. Id. As long as the insured spouse has not remarried, the insurer may not charge an additional premium for the family coverage due to the divorce. Id. Mass. Gen. Laws c. 175, § 110I applies to commercial health insurance carriers. Nearly identical statutes apply to Blue Cross and Blue Shield of Massachusetts (G.L. c. 176A, § 8F; G.L. c. 176B, §6B) and health maintenance organizations (G.L. c. 176G, § 5A). In addition, spouses of Massachusetts' government workers have similar continuation rights under G.L. c. 32A, § 11A (state employees) and G.L. c. 32B, § 9H (county and municipal employees). Under G.L. c. 175, § 110I and the statutes noted above, the right to coverage ceases if the dependent spouse remarries. However, if the member spouse remarries, the dependent spouse may qualify for continued coverage, provided the parties so specify in the divorce judgment. G.L. c. 175 §110I(b). An insurer may charge an additional premium for the dependent spouse after the member spouse remarries. Foster v. Group Health Incorporated — Limiting the Reach of Chapter 175, § 110I
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14 James and Paula Foster were married in 1972 and lived for many years in New York City. The couple had health insurance through Paula's employment with the City. James moved to Massachusetts in 1987, where the couple divorced in 1992. Paula never lived in Massachusetts. After the divorce, the group plan's New York insurers terminated James' coverage. He sued, alleging a violation of G.L. c. 175, ยง110I(a): "The provisions of this section shall apply to any policy issued or renewed within or without the commonwealth and which covers residents of the commonwealth." The Supreme Judicial Court ruled that c.175, ยง 110I did not apply where Paula lived in New York at the time of the divorce and was insured by companies not subject to Massachusetts regulation. 444 Mass. at 669-70. The Massachusetts legislature amended ยง110I(a) in 1986, after the decision in Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724 (1985). In that case, the state attorney general sued to enforce a law that required insurers to offer specific mental health benefits. The Supreme Court concluded that the defendants, out-of-state insurance companies, were bound by the state insurance law with respect to group policies A person covering employees who at risk were Massachusetts residents, even where the policies were issued to non-Massachusetts employers. 471 U.S. at 746-7. The SJC reasoned that the amendment to ยง 110I(a) codified Metropolitan Life with respect to an ex-spouse's right to coverage. 444 Mass. at 675-7.
Neither Paula Foster nor her plan's insurers had any connection with Massachusetts. Understandably, the SJC did not want to impute to the legislature an unconstitutional intent "to regulate out-of-State insurance companies that have no contact with Massachusetts, and have never contracted to provide coverage to Massachusetts residents." 444 Mass. at 673. James' having established residency shortly before the divorce did not alone subject the out-of-state insurers to Massachusetts' insurance mandates. Id. The Foster decision raises questions about the future application of G.L. c. 175, ยง 110I. The SJC stated that the law applies "if and only if" the member spouse is a Massachusetts resident. 444 Mass. at 669. The court thus read "residents of the commonwealth" to mean employees only, not, as it might have, employees and their covered dependents. The court's interpretation has implications for common situations. Take the following examples. First, a Massachusetts employer purchases a group policy from a Massachusetts insurer, which covers employees and their dependents, many of whom live in New Hampshire. If one such New Hampshire couple divorces, does the non-member
going through a divorce is of losing health insurance. spouse qualify for continued coverage? Second, a Rhode Island employer purchases a group health insurance policy from a Rhode Island insurer. The group includes a number of employees and their dependents living in
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15 Massachusetts. If a Massachusetts couple in this group separates and the member moves to Rhode Island before the divorce, is the dependent spouse eligible for coverage? The Massachusetts-based nature of the group in the first example argues for coverage, though Foster implies otherwise. However, the Foster court's reading of "residents" appears to disqualify the ex-spouse in the second scenario, despite the plan's significant and purposeful contacts with the Commonwealth. Divorce practitioners will want to evaluate the impact of Foster to ensure that, whenever possible, their clients can maintain health benefits. Impact of Federal Law Many large employer group health plans are "selffunded" or "self-insured." These plans are exempt from G.L. c. 175, § 110I (and comparable state laws) due to preemption by the Employee Retirement Income Security Act of 1974 (ERISA). See 29 U.S.C. § 1144(b)(2)(B); Bergin v. Wausau Ins. Co., 863 F. Supp. 34, 38 (D. Mass. 1994). TIPS FOR DETERMINING IF A PLAN IS SELF-FUNDED •
Do not assume that having an insurance card means a plan is fully insured
•
Request the summary plan description (SPD) and look for the section on how the plan is funded
•
Contact the employer's HR department if you have questions after reading the SPD
•
Remember that some employers offer both self-insured and insured health plan options
A dependent spouse may nonetheless qualify for continued coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), 29 U.S.C. § 1161 et seq. This law requires private employers with 20 or more employees to offer continuation coverage to divorced and legally separated spouses of employees for up to 36 months, if they were covered on the day before the divorce or legal separation. 29 U.S.C. §§ 1161, 1163. (Massachusetts' "mini-COBRA" law, G.L. c. 176, §9, requires insured health plans of employers with 2 to 19 employees to offer 36 months continuation coverage to divorcing spouses of covered employees.) The employee or spouse must notify the health plan administrator of the divorce or legal separation within 60 days. Remarriage does not affect COBRA rights. Simpson v. T.D. Williamson, Inc. — Defining "legal separation" under COBRA Last summer, in a case of first impression, the Tenth Circuit Court of Appeals addressed the meaning of "legal separation" under COBRA in Simpson v. T.D. Williamson, Inc., 414 F. 3d 1203 (10th Cir. 2005), holding that an interlocutory protective order in a divorce action is not a legal separation. Plaintiff Zeda Simpson filed for divorce in February 2000, and thereafter obtained a series of protective orders against her husband. The plaintiff had health coverage through the husband's employment with T.D. Williamson, Inc. (TDW). She asked that TDW not reveal any information to her "estranged husband" about her health care. TDW concluded that a "legal separation" had occurred and sent the plaintiff a notice
Family Mediation Quarterly
16 of COBRA rights. The plaintiff protested but elected COBRA anyway. However, she did not pay the premiums and TDW terminated coverage in June 2002. When the divorce became final a month later, the plaintiff tried to elect COBRA coverage but TDW did not accept her election. 414 F. 3d at 1204-5. Neither the COBRA statute nor regulations thereunder define "legal separation." The Tenth Circuit concluded that legal separation requires a legal action distinct from divorce, and implies a formal judicial alteration of the marital relationship pursuant to a final court decree. 414 F. 3d at 1205-6. Although the court allowed that an employer might define legal separation in its health plan (TDW did not do so), it strongly implied that any definition requiring less than a final court judgment would be inconsistent with Congressional intent. SPECIAL GROUPS
Spouses of Church Employees Health plans of church-related organizations are also exempt from COBRA. 29 U.S.C. § 1003(b). However, a fully insured plan purchased by a church employer is subject to Massachusetts insurance laws, including Mass. Gen. L. c. 175, § 110I and related statutes. A church employee enrolled in a self-insured church plan has only those continuation rights, if any, provided by the plan. Same-Sex Married Couples Same-sex spouses lawfully married in Massachusetts are entitled to the protections of G.L. c. 175, § 110I (and related laws) upon divorce, to the extent that their situation (residency, employment, etc.) makes them otherwise eligible. See Goodridge v. Department of Public Health, 440 Mass. 309 (2003). However, the 1996 Defense of Marriage Act (DOMA), 28 U.S.C. §1738C, allows employers to deny COBRA coverage to same-sex spouses. DOMA does not prohibit a self-insured employer from voluntarily providing continuation coverage to all former spouses of their employees. (For more information about health benefits for same-sex spouses, visit http://www.glad.org/rights/HealthBenefitsAf terGoodridge.html.
Spouses of Federal Government Employees Government employers are exempt from COBRA. 29 U.S.C. § 1003(b). However, the ex-spouses of most federal employees are eligible for COBRAlike continuation coverage pursuant General language in divorce judgments to the Federal requiring the insured spouse to cover Employees Health the dependent spouse "as long as Benefits Act, 5 there is no additional cost" may not U.S.C. § 8901 et seq. Federal law protect the parties adequately. provides much more limited continuation rights for spouses of Alternatives to Group Coverage If the military personnel. 10 U.S.C. § 1071 et seq. obligor under a support order does not have Continued on next page
Winter 2006 • Vol. 5 No. 1
17 parties adequately. For example, an employer may refuse to subsidize the exspouse's coverage. (ERISA permits employers this discretion if applied in a nondiscriminatory way.) Similarly, the insured spouse may fail to pay COBRA premiums on time, resulting in cancellation of the dependent spouse's coverage. Divorcing couples should work out cost details and reliable payment Divorcing couples should work out arrangements before submitting a proposed cost details and reliable payment judgment to the court. group insurance, the Probate and Family Court judge must determine whether other coverage is available "at reasonable cost" to cover the spouse. See, e.g., G.L. c. 208, ยง 34. If so, the judge may order the obligor to purchase (or help pay for) a non-group policy for the other spouse. Any Massachusetts resident, other than a Medicare or MassHealth enrollee, is
arrangements before submitting a proposed judgment to the court. eligible for non-group coverage. G.L. c. 176M, ยง 1, 3(b). The Division of Insurance website http://www.mass.gov/doi, offers extensive information on non-group plans. A public program may be an option for some people. Major programs that provide free or low-cost health care assistance to Massachusetts residents include: MassHealth, the Medical Security Plan (for unemployment recipients), and the Uncompensated Care Pool (Free Care). Applicants for these programs must meet categorical and financial criteria. For more information on public programs, see Access to Health Care in Massachusetts, Division of Health Care Finance and Policy (May 2004), <http://www.mass.gov/Eeohhs2/docs /dhcfp/pdf/access.pdf>. Some Thoughts on Preparing Separation Agreements General language in divorce judgments requiring the insured spouse to cover the dependent spouse "as long as there is no additional cost" may not protect the
Conclusion Maintaining health insurance coverage after a divorce or permanent separation can be challenging. Failure to understand the limitations and nuances of the law in this area can expose clients to loss of health coverage. Practitioners should become familiar with all relevant state and federal laws to fully assist their clients to maintain this essential benefit.
Clare D. McGorrian, Esq., has a practice in Arlington, where she represents individuals, small employers and non-profit organizations in health benefits cases and other health law matters. Clare welcomes requests for consultation in cases involving health insurance coverage after a divorce. She can be reached at 781-646-0465 or <info@cdmhealthcounsel.com>.
Family Mediation Quarterly
18
IN PURSUIT OF JUSTICE Lawyers and Mediators Negotiating Identity By David B. River As mediation becomes mainstream, there is a growing conflict between legal professionals, who traditionally resolve disputes, and mediators, who are bringing mediation to conflict areas that were previously handled by attorneys. The growing dispute is evidenced by an increasing number of lawsuits brought against mediators by state bar associations on grounds of unauthorized practice of law ("UPL").
the models for dispute resolution, and called into question the idea that adversarial approaches lead to the best outcomes for people in conflict. The success of mediation, drawing people who might otherwise have hired attorneys, is forcing attorneys to look at the assumptions about who they are, what their work accomplishes, and, in some cases, to transform.
On the other hand, mediators form a new The popular reasons given for the conflict profession with many different ideas, only partially explain its causes. Rubin and styles, practices and ethical codes. Under Levinger point out that "conflict over one set threat of lawsuits from the legal profession, of issues is often confounded with, or mediators keep silent about how they obscured by, conflict over issues at a discuss legal issues with clients, what different level" (1995, pp. 15-16) and in the forms best practices, and what case of mediators and attorneys, the most visible level of Under threat of lawsuits from discussion is to define what is the legal profession, mediators and isn't the practice of law, and who is entitled to discuss the keep silent about how they law with people in conflict. discuss legal issues with clients Mediators claim that lawyers bring these lawsuits against mediators in distinguishes a cooperative approach to the order to protect their business interests, and law rather than a competitive one. lawyers claim that mediators step into legal The tendency of identity conflict to territory without legal training or ethics to escalate and define who is "in," who is guide them, leaving people with unjust or "out," and therefore who is in an otherwise negative outcomes. advantaged position with respect to resources hampers the development of both A much richer understanding of this struggle professions and keeps the focus away from for definition is possible through the lens of the kinds of questions and research that identity and resource competition. The would allow both professions to advance. advent of mediation as a tool addressing conflicts that were previously handled by Resource Conflict: Fuel for the Fire In attorneys has blurred the distinctions of who a recent law review on the subject, is capable of addressing conflict, broadened Continued on next page Winter 2006 â&#x20AC;˘ Vol. 5 No. 1
19 Jacqueline M. Nolan-Haley points out that "the organized opposition [by lawyers] to
for attorneys such as small claims, have not been the target of any UPL lawsuits.
Mediators market their services as a "lower cost" and "less stressful" alternative to lawyers and court battles, and the message has been very successful. the unauthorized practice of law began in 1930 . . . when lawyers, along with almost everyone else, were struggling to protect their livelihood from competition and economic catastrophe" (2002). Whereas 20 years ago few people had any knowledge of what mediation was, today there is a great demand. Mediators market their services as a "lower cost" and "less stressful" alternative to lawyers and court battles, and the message has been very successful. As a divorce mediator, I speak to several people a day who are seeking mediation services based on economics and a desire to remain amicable.
One can surmise that the identity conflict is an issue because lawyers perceive a threat to their ability to gain clients. Martha Minow suggests that negotiation of and between different identities "is nested within a pattern of social, political, economic, and cultural practices through which people relate" (1997, p.52). Underneath the questions of what is the law and who is entitled to practice it is a struggle for a larger identity â&#x20AC;&#x201D; who is considered a legitimate dispute resolution professional in society. The Role of Identity While mediators seek to define their identity within the bounds of a relatively new profession, attorneys may have a larger challenge as they seek to maintain a clear sense of
Competition for perceived scarce resources fuels the current lawyer/mediator While mediators seek to define their identity conflict. identity within the bounds of a relatively This is evidenced new profession, attorneys may have a by the fact that most of the UPL larger challenge as they seek to maintain lawsuits have been a clear sense of relevance within a brought against divorce mediators. tradition-bound profession. This is significant because attorneys commonly bill $10,000 to relevance within a tradition-bound $100,000 for a single divorcing client. In profession. Morton Deutsch (1982) points comparison, volunteer mediation programs, out that "It is important for the participants which focus on providing services to low in a particular social relationship to know income people and/or people involved in "what's going on here," i.e., to know the traditionally low-profit-generating disputes actors, the roles they are to perform, the Family Mediation Quarterly
20 relations Up until the last few decades, lawyers were among the the sole, rightful and legitimate owners of different roles, the dispute resolution processes in civil society. props and settings, the scenes, and the themes of the The legal profession is based upon justice social interaction" (p.25). ADR questions principles that have been established over the foundations of what attorneys know to centuries. "The adversarial system attempts be true and, therefore, their role and to determine truth, preserve rights, position within society. In return, attorneys determine right and wrong, and punish the challenge ADR practitioners to be mindful wrongdoer" (Kovach, 2001). Lawyers seek of issues of fairness and power without justice based on the most favorable practicing law in disguise. interpretation of the law for their client and Lawyer Identity After centuries of development, the legal profession has created extensive ethical codes, rules of conduct, procedures, and educational systems that help lawyers maintain an identity distinguished by a high level of training, education, power and professionalism. Whether or not this image matches reality, lawyers rank with doctors in terms of social esteem and power. Up until the last few decades, lawyers were the sole, rightful and legitimate owners of dispute resolution processes in civil society. On one hand, the professional identity of a lawyer is clear. To become an attorney, one goes to law school and then takes the bar exam for the state or states in which s/he wishes to practice law. However, ADR research has called into question whether finding a "good lawyer" to zealously fight for your interests might actually harm more than help the person in conflict because of lost value and damaged relationships. The success of ADR practitioners has blurred and obscured the social understanding that when you have a problem with someone, you need to find a good lawyer.
fight for their client's interests against the opposing side. For an example, the Massachusetts Rules of Professional Conduct states that "A lawyer should act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf" (cited by Reynolds and Tennant, 2001, p.4). The use of mediation in lawyer-dominated areas is quite recent, and grew out the broader field of ADR, which held that "conflicts often could be restructured and reframed so that partisans would regard the conflict as a shared problem that had mutually acceptable solutions" (Kreisburg, 2001, p. 411). Through conceptual models such as the prisoner's dilemma and game theory, developed in the 1960s and 1970s, researchers studied the possible value that could be generated from a cooperative approach to conflict rather than a competitive or adversarial approach. In addition, "mediators could . . . manage and settle disputes in ways that would enhance the adversaries' relationships" (Kreisburg, p. 411)
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21 Mediation Act" have produced a document that, by design, "addresses only those areas (such as confidentiality) where uniformity is required," ... "reflects an understanding of the diversity of mediation styles and range of disputes mediated", and yet "preserves mediation as a process that is separate and distinct from the practice of law, arbitration, and judicial proceedings" (Firestone & Sharp, 2001). To allow for a diversity of professional backgrounds, mediation styles, practice areas and The success of ADR practitioners practitioner models (community volunteer has blurred and obscured the social to private practice) understanding that when you have a and still create a distinct profession is problem with someone, you need to clearly still a work in find a good lawyer. progress. you hold your head up and know that your work is worthy? Kimberlee Kovach points Among the challenges by attorneys to the out that "Many of the very rules that developing mediation profession is establish parameters or guidelines for whether mediators can help people reach settlements while remaining lawyers' behavior were written by lawyers fair who advocated individual liberties and "impartial." As Louis Kreisberg states, rights, regardless of morality issues" "Some observers argue that the dominant (Kovach, 2001). The utility and morality party and a conflict may use [conflict of the cutthroat lawyer, zealously fighting resolution] as an instrument of control. to win the legal contest is in question now Without taking sides in this debate we must then concede that insofar as parties are more than ever. unequal in status, in power, or other Mediator Identity As a new profession, resources, the weaker party tends to give up ADR practitioners, including mediators, more and mediated or negotiated are in the beginning stages of developing a agreement" (2001, p.417). An attorney is a cohesive identity. Mediators come from a professional advocate, helping people who great variety of backgrounds, including may or may not be knowledgeable or savvy law, psychology, social sciences, social in negotiations. Attorneys can be viewed work and education. The ethics and as professionals who, thereby, equalize the professional standards of mediators from power of the clients. The mediation these various disciplines shape those profession has a much less developed sense mediators and in turn the mediation of how to respond to power imbalance. profession. Efforts to define a "Uniform ADR has, in effect, asked attorneys whether their work and approach to conflict is truly in the best interests of their clients â&#x20AC;&#x201D; which creates a moral and ethical dilemma for attorneys. Deutsch suggests that "The need for self-esteem involves the need to have a sense of the worthiness of ones goals and a sense of confidence in one's ability to fulfill one's intentions" (1984, p. 29). If people are, in some cases, harmed by your intervention, then how do
Family Mediation Quarterly
22 UPL lawsuits have a profound effect on the non-lawyer mediation community. A lawsuit not only threatens to ruin the reputation of the mediator it is brought against, it creates a precedent harmful to the entire mediation community. Therefore, it is not hard to understand that the mediation community has largely responded to the issue of how mediators should approach the law with "inaction," which is defined by Rubin & Levinger as "when one side deliberately does nothing in the hope that the passage of time will favorably change the situation" (1995, p.15). Though there is much discussion within legal journals, there is little discussion within the mediation community about this issue.
Multiple and Shifting Identities Beneath the conversation of lawyer/mediator identity lies the reality that mediators and attorneys are not distinct identity groups who are fighting over clearly incompatible interests. As Martha Minow posits, "...Identities are not stable, fixed, innate, essential, singular or clearly bounded. Neither are they entirely mutable at the wishes of anyone" (Minow, 1997, p. 52). The lawyer/mediator identity conflict, fueled by a perceived incompatibility of interests, drives lawyer and mediators alike to seek the definitions and bounds of their respective practices. However, it is arguable that there is no such definition in the reality of the daily practices of attorneys and mediators.
Going back and forth about what is and Whether inspired by the moral arguments isn't the practice of law could be or the need to stay economically understood as a displaced conflict advantaged, many attorneys are being (Deutsch, 1973), which distracts lawyers trained in mediation and many mediators and mediators alike from more important goals. The ADR field In language that could easily "was intended to be flexible, make be an advertisement for the world a better place, and mediation, collaborative encourage different models of problem solving â&#x20AC;&#x201D; not only lawyers espouse "Changing adversarial ones. Yet appropriate the role of the lawyer from dispute resolution is now becoming as complex, law-laden and law- strategist for winning against ridden as the traditional practice of an adversary to intentional law" (Menkel-Meadow, 2001). The settlement worker...." mediation profession, in order to realize a successful identity in legalistic and/or high power conflict areas, are going to law school and being trained in must seek a way to reconcile with the law law. In addition, there are lawyers who without losing sight of the important have a poor understanding of the law and distinctions ADR brings to the resolution of non-attorney mediators who have a sophisticated understanding of the law. conflict. Continued on next page Winter 2006 â&#x20AC;˘ Vol. 5 No. 1
23 Perhaps for strategic purposes we may choose to affiliate along one or a few lines of group membership, but these lines may shift as our strategies and goals change" (Minow, 1997, p.39).
The mediator's sense of fairness and understanding of statute and case law will inevitably impact the negotiations. Therefore, it is important to note "how group-based descriptions are approximate or probabilistic, not absolute and consistent" (Minow, 1997, p.49). In addition to becoming mediators, lawyers are blurring the lawyer/mediator boundaries in other ways. There have been significant discussions within the legal field as to whether lawyers can ethically employ problem-solving approaches to conflict rather than adversarial approaches. Collaborative law is one such outgrowth, in which the attorneys vow not to resort to litigation and to withdraw from the case if the clients decide to litigate. In language that could easily be an advertisement for mediation, collaborative lawyers espouse "Changing the role of the lawyer from strategist for winning against an adversary to intentional settlement worker . . . [which] changes the purpose and focus of all inquiry, thought and discussion: 1) from past to future; 2) from facts to relationships; 3) from faultfinding to restructuring relationships; and 4) from positions to interests" (Reynolds & Tennant, 2001). Thus the lawyer/mediator identity conflict is occurring against a complex and constantly shifting landscape of goals, interests, and intersecting identities. As Martha Minow suggests, "The idea of individual membership in multiple, intersecting groups implies a more profound challenge to identity politics....
Facilitative/Evaluative Distinction One area of discussion related to the issue of mediators and the law is the difference between "facilitative" and "evaluative" mediation. The aim of facilitative mediation "is solely to assist the parties in reaching a negotiated settlement" without offering analysis of legal merits or probable outcomes in the judicial process (Schwartz, 1999). Evaluative mediators, however, offer such analysis in order to help the parties understand, among other things, their best alternative to a negotiated agreement (BATNA) and whether a particular settlement would be legally sound if tested in the future. Many attorneys suggest that "...only lawyers should be permitted to practice evaluative mediation" (Schwartz, 1999). However, it is unclear whether purely "facilitative" mediation is even a theoretical possibility. Simply seeking understanding of the interests of one person on one point rather than another "places the mediator in the position of selecting some options from many and thus can be considered an implicit form of evaluation" of appropriate options (Nolan-Haley, 2002). In other words, a mediator impacts the negotiation in explicit and subtle ways by using traditional and widely accepted mediator skills as innocuous as active
Family Mediation Quarterly
24 listening. The mediator's sense of fairness and understanding of statute and case law will inevitably impact the negotiations. The Shadow of the Law There is wide agreement that "The [mediation] process is one that is focused on discovering the underlying interests of the parties and on solving a problem rather than one concentrated on obtaining a settlement based upon what the law may be or what it declares the parties' respective rights to be" (Kovach, 2001). And yet, in many conflicts, the legal system is another party to the conflict that cannot be ignored. If mediators do not know the law or can not discuss the law with disputants, they "will be deprived of information that could assist them in making educated and informed decisions in the mediation process" (NolanHaley, 2002).
fair nor just" (Nolan-Haley, 2002). A larger question may be how to acknowledge the parties' sense of justice while being responsible to the justice rules espoused in the society's laws. The Reality of Practice The reality is that mediators, including non-attorney mediators, discuss the law during mediation. They do their best to insure that agreements will be approved in court and will hold up if legally challenged in the future. Some writers suggest that to be able to move forward as a profession, mediators need to be more honest about how they discuss the law during mediation in order to ensure and develop good practices. "Rather than engage in the considerable semantic gymnastics that are required to separate particular mediator behaviors from the practice of law, we should plainly identify mediator behaviors" (Nolan-Haley, 2002).
If both parties in a conflict are knowledgeable about their rights within the Future Directions The lawyer/mediator larger legal system, a mediator has no conflict could result in an exciting time of problem; as mediators are specifically development within the legal and trained to address the dynamics of conflict, If mediators did not discuss the law, negotiation and impasse. mediation would be a "crapshoot and However, agreements parties may achieve results that are are formed within the shadow of the law. They neither fair nor just" either need to be reviewed and approved by a judge or mediation professions, as well as the larger "Conflict has many withstand legal scrutiny if the agreement is justice system. contested at some time in the future. If positive functions. It prevents stagnation, parties to a legal dispute are not it stimulates interest and curiosity, it is the knowledgeable about their rights, a medium which problems can be aired and mediator must help them understand. If solutions arrived at, it is the root of mediators did not discuss the law, personal and social change" (Deutsch, mediation would be a "crapshoot and 1973, p.8). Whether the conflict simply parties may achieve results that are neither Continued on next page Winter 2006 â&#x20AC;˘ Vol. 5 No. 1
25 narrows the bounds of each profession and redefines which professional is entitled to what portion of the "dispute market" or, alternately, realizes positive benefits, will depend on whether lawyers and mediators can refocus on the goals of their work. As Carrie Menkel-Meadow says, "Competition between lawyers and non-lawyers for clients and fees has blurred our professional vision. As a result, debates about the boundaries of law practice and mediation have occurred largely at a distance from the parties being served and from the goals of justice and fairness" (2002). Non-attorney mediators would be wellserved to be proactive in these conversations rather than doing mediation behind closed doors and the security of confidentiality statutes, hoping that they will not be challenged. If "The goal [of UPL lawsuits] is to protect the public from injury caused by laymen practicing law" (Schwartz, 1999), therefore, the question that should be asked is what level of knowledge an expertise is necessary to protect the public? Mediators should take this concern from the legal profession seriously and start developing legal training that discusses the law and how non-lawyer mediators should use it. A shift in focus away from "who is entitled" to "what are our goals" could open up an exciting realm of discussion and research. What would it mean for people to be "fully informed" about their legal rights and options? How do people use knowledge about the law and their rights in negotiation and mediation? What would define a cooperative approach to the law rather than a competitive one? Is there a
way mediators could be trained in law that would be distinct from attorneys? Conclusion The competition between lawyers and mediators tends to focus attention on protecting turf and seeking to define who is "in" and who is "out" with regard to professional practice. As Morton Deutsch says, "We are 'for' one another or 'against' one another; we are linked together so that we both gain or lose together or we are linked together so that if one gains, the other loses." (Deutsch, 1984, p.27). The moral basis for the legal and mediation professions is to look "for the most appropriate way to try to resolve disputes, plan transactions, solve international crises, and deal with community and individual human problems" (Menkel-Meadow, 2001). Refocusing on the big picture issues will soften the need to seek identity distinction as a primary concern and open the door to cooperative and creative ways for both professions to move forward. References Deutsch, M. (1973). The Resolution of Conflict. New Haven: Yale University Press. Deutsch, M. (1975). Equity, Equality and Need: What Determines Which Value Will Be Used As The Basis Of Distributive Justice? Journal of Social Issues, 31(3), 137-149. Deutsch, M. (1982). Interdependence And Psychological Orientation. In V. J. Derlega & J. Grzelak (Eds.), Cooperation And Helping Behavior. New York: Academic Press.
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26 Firestone, G. and Sharp, D. (2001). ACR's UMA Principles. Retrieved from: www.acresolution.org/research.nsf/articles/ 3FEB7777949EDC7A85256A260074FD8 Gibbons, T. (2002). ABA Panel Takes Stand On Mediation. Chicago Daily Law Bulletin, 5. Kovach, K. (2001). New Wine Requires New Wineskins: Transforming Lawyer Ethics For Effective Representation In A Non-Adversarial Approach To Problem Solving. Fordham Urban Law Journal. Kreisberg, L. (2001). The Growth of the Dispute Resolution Field. In C. A. Crocker, F. O. Hampson & and P. Aall (Eds.) Turbulent Peace: Lind, A & Tyler, T. (1988). The Social Psychology Of Procedural Justice. New York: Plenum. Menkel-Meadow, C. (2001). Ethics in ADR: The Many "Cs" Of Professional Responsibility And Dispute Resolution. Fordham Urban Law Journal. Nolan-Haley, J. (2002). Lawyers, Nonlawyers And Mediation: Rethinking The
Professional Monopoly From A ProblemSolving Perspective. Harvard Negotiation Law Review. Reynolds, D. & Tennant, D. (2001, November/December). Collaborative Law: An Emerging Practice. Boston Bar Journal. Rubin, J.Z., & Levinger, G. (1995). Levels Of Analysis: In Search Of Generalizable Knowledge. In B.B. Bunker & J. Z. Rubin (Eds.), Conflict, Cooperation, And Justice. San Francisco: Jossey-Bass. Schwartz, J. (2001). Laymen Cannot Lawyer, But Is Mediation The Practice Of Law? Cardozo Law Review. Yeshiva University.
David B. River, MA has been a full-time mediator, trainer and researcher since 1995 in the areas of divorce, public policy, workplace, schools and juvenile justice. While earning his Masters Degree in Dispute Resolution from the University of Massachusetts, he was a Director of MCFM. David now lives in Santa Fe, NM, where he is a partner in River & Cadiz Mediation Services. He can be contacted at <david@rivercadiz.com>
"Marriage has universally fallen into disrepute." Martin Luther, On the Estate of Marriage (1522) Winter 2006 â&#x20AC;˘ Vol. 5 No. 1
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THE DIVORCE MORTGAGE TRANSACTION & MEDIATION By Carol F. Nemet The dissolution of a marriage is fraught with emotional spikes, economic uncertainty and a variety of pressures. In the course of divorce mediation, whenever one spouse plans to buy-out the other's interest in the marital home, or the parties plan to jointly refinance their mortgage, or consolidate or apportion a home equity line of credit, a mortgage professional should be consulted. A mortgage professional brings crucial expertise to these specialized areas of financing. This may include various ways to structure real estate based transactions to serve the best interests of both parties. Without that expertise, clients may suffer.
above a value of seventy five percent. In other words, if no agreement is in place and one party does a refinance to "buy out" the other party, it is a cash out refinance transaction. If the loan amount exceeds 75% the home value there will be an adjustment to the rate when pricing. On an average this is about a .25+%. Either of these events could necessitate that the transaction be done overâ&#x20AC;&#x201D;a costly consequence that could well be avoided through the early intervention of an experienced mediator and mortgage professional.
The mediator will guide the clients through the process of separation and assist in their asset division negotiations. The mortgage professional will determine if the spouse remaining in the home meets the financial criteria needed to qualify for a mortgage. Plus, the mortgage professional will help the client review the vast array of mortgage finance vehicles â&#x20AC;&#x201D; to select the loan program that best meets the clients' needs. Many clients face a decrease in household income at this stage. A loan program The timely partnership of a offering initially reduced payments could benefit these clients greatly and mediator and a mortgage ease the burden of meeting professional greatly reduces help financial obligations solely.
A common pitfall is trying to do too much, too soon. When clients approach a financial institution before starting the process of separation they run the risk being misguided. Although a financial institution can refinance a mortgage and remove either spouse from a deed, a court may not view their transaction as an equitable division of assets at the time of divorce.
the risk of unnecessary and costly choicesâ&#x20AC;&#x201D;financially and emotionally. In addition, depending on the equity amount in the home, a client may unnecessarily pay a higher interest rate for cashing out funds
A binding separation agreement, structured by a mediator offers inherent financial advantages that may then be leveraged by a mortgage professional. Provided that no additional funds outside the buyout amount are being taken from the
Family Mediation Quarterly
28 marital home, a loan may be structured as a rate and term refinance vs. a cash-out refinance transaction. In other words, if there is a separation agreement in place and all loan proceeds are going to the "buy out," it is a rate/term refinance and in this case you can "buy out" a party without the "cash out" adjustment. This generally results in a lower interest rate, more lenient qualification guidelines, and is more cost effective. The use of mediation services also enables most clients to lock-in their interest rate, as the mediation process is generally far faster than the traditional divorce. Usually, the lock-in transaction may be processed in forty five to sixty days, greatly reducing the emotional strain in the inherently longer and drawn out process of divorce.
Professionals of various backgrounds can play pivotal roles in separations and divorces. It is essential that mortgage professionals educate clients to make strong and fiscally responsible decisions. The timely partnership of a mediator and a mortgage professional greatly reduces the risk of unnecessary and costly choicesâ&#x20AC;&#x201D; financially and emotionally.
Carol F. Nemet is a mortgage professional for Consolidated Mortgage Services, Inc. She has twenty years of experience in the mortgage banking industry. She can be contacted at 617-479-1971 or at cnemet@consolidatedmtg.com
"Single women have a dreadful propensityfor being poorâ&#x20AC;&#x201D;which is a very strong argumentin favor of matrimony." Jane Austen
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VETERANS' BENEFITS & CHILD SUPPORT By Patricia A. Shea Introduction: I recently mediated a divorce involving a husband who was a 100% disabled Veteran receiving disability payments from the Department of Veterans Affairs. He believed that his disability payments should not be included as income in the calculation of child support under the Massachusetts Child Support Guidelinesâ&#x20AC;&#x201D; especially since the child received Chapter 35 benefits. He also asserted that VA disability compensation cannot be computed as earned income and part of the marital assets which can be divided and distributed to a former spouse and dependents. Since I had never mediated a case dealing with VA disability benefits, I posed the question at my monthly peer group meeting. While there was a general sense that VA disability benefits should be included in a child support calculation, no one was certain. It was suggest that I contact MCFM Vice President Kathy Townsend, an attorney in Springfield, as a resource on Veteranâ&#x20AC;&#x2122;s benefits. Her answer came quickly, including a copy of the case
my client hoped to hear, he wrote to the Department of Veterans Affairs in Boston for clarification. Their Office of Regional Counsel replied to him and sent a copy to me, as quoted below. Correspondence: You have requested clarification from the Department of Veterans Affairs (the "VA") regarding whether the disability payments that you have received from the VA may be exempt from consideration in computing dependent support. More specifically, you explained that you and your wife are mutually divorcing and the mediator involved in the matter has included your VA disability payments as earned income for purposes of distributing marital assets for a dependent child. (I construe the phrase "for purposes of distributing marital assets for a dependent child" to mean dependent support.) You take the position that the mediator incorrectly considers your VA benefits in this regard for two reasons: (1.) the VA does not
Veterans' disability benefits compensate provide you with for impaired earning capacity, and are dependent monies for your daughter intended to "provide reasonable and since she receives adequate compensation for disabled Chapter 35 benefits and there is no veterans and their families." on point: Cohen v. Murphy, 368 Mass. 144 (1975). The Cohen court's holding confirmed that VA disability benefits are included in child support calculations. Since that decision was contrary to what
dependent money in the 100% disability compensation that you receive, and (2.) your VA compensation cannot be computed as earned income and part of the
Family Mediation Quarterly
30 marital assets which can be divided and distributed to the former spouse and child dependents.
Under the Supremacy Clause of U.S. Constitution (Art. VI, Cl. 2) a state statute is not preempted by 38 U.S.C. § 5301 providing that § 5301 does not apply to shield veterans' disability payments from seizure under otherwise valid child support order.
I only address the second reason that you cite as this reason implicitly refers to the federal law that you desire that I clarify. I do not address the first reason that you raise since it involves an analysis of your available income that is more appropriately addressed in the mediation process, but briefly note that Chapter 35 benefits that your daughter receives are in addition to the 100% disability benefits that you receive. It is the VA's view that veterans' disability benefits may be used, in part, for the support of veterans‚ dependents.
Federal law provides that payments of benefits due or to become due under any law Administered by the Secretary [of the VA] shall not be assignable except to the extent specifically authorized by law, and such payments made to, or on account of, a beneficiary shall be exempt from taxation, shall be exempt from the claim of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary. 38 U.S.C. § 5301. The legislative history for this provision recognizes two purposes: to "avoid the possibility of the Veterans' Administration. . . being placed in the position of a collection agency" and to "prevent the
deprivation and depletion of the means of subsistence of veterans dependent upon these benefits as the main source of their income." Rose v. Rose et. al., 481 U.S. 619, 630 (1987), quoting, S. Rep. No. 94-1243, pp. 147-148 (1976). In your case, the proceedings will not turn the Secretary into a collection agency; the Secretary is not obliged to participate in the proceeding or to pay benefits directly to anyone. Nor does subjecting the benefits to the process deprive you of your means of subsistence contrary to Congress' intent, for these benefits are not provided to support you alone, as will next be addressed. Veterans' disability benefits compensate for impaired earning capacity, H. R. Rep. No. 96-1155, p. 4 (1980), and are intended to "provide reasonable and adequate compensation for disabled veterans and their families." Id., quoting S. Rep. No. 98604, p. 24 (1984) (emphasis added). Moreover, by enacting 38 U.S.C. § 5307, the provision for apportionment, Congress clearly intended veterans' disability benefits to be used, in part, for the support of veterans‚ dependents. Id. at 631. Recognizing an exception to the application
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31 of § 5301(a)'s prohibition against attachment, levy, or seizure in this context would further, not undermine, the federal purpose in providing these benefits. Id. at 634. Based on this rationale, the Supreme Court concluded in Rose that § 5301(a) does
Supremacy Clause of U.S. Constitution (Art. VI, Cl. 2) a state statute is not preempted by 38 U.S.C. § 5301 providing that § 5301 does not apply to shield veterans' disability payments from seizure under otherwise valid child support order.
The mediator may consider your disability benefits in determining the appropriate child support amount for which you should be responsible. not extend to protect a veteran's disability benefits from seizure where the veteran invokes that provision to avoid an otherwise valid order of child support. Id. You note that the mediator relies on Cohen v. Murphy, 368 Mass. 144 (1975) for the proposition that veterans' benefits are not exempt from consideration of Federal benefits in determining the amount of child support to be ordered. The mediator's reliance on Cohen v. Murphy is consistent with Rose. As the Court in Rose noted, a state statute construed by state courts as authorizing an award of child support from veteran's disability benefits which are his sole income does not conflict with 38 U.S.C. § 5301 since Congress intended veterans' disability benefits to used in part to support a veteran's family. Under the
Therefore, in light of the above, we offer that the mediator may consider your disability benefits in determining the appropriate child support amount for which you should be responsible.
End Note: This experience demonstrates the importance of belonging to MCFM and taking an active part in a peer group. Since none of us have answers to all the questions that come up in mediations, a strong support group is an invaluable resource.
Patricia A. Shea, MA, is a certified divorce mediator and therapist with more than 25 years of experience dealing with contested divorce cases. She is also a director of MCFM. Pat can be contacted at (508) 748-2689 or by email at sheamediation@verizon.net.
"What would men be without women? Scarce, sir — mighty scarce." Mark Twain Family Mediation Quarterly
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WHATâ&#x20AC;&#x2122;S NEWS? Compiled By Les Wallerstein Poll Says Even Quiet Divorces Affect Children's Paths Even in a so-called "good divorce" in which parents amicably minimize their conflicts, and even though their children usually become well-adjusted adults, children whose parents divorce inhabit a more difficult emotional landscape than those who grow up with married parents. These findings are based on a national survey of 1,500 adults age 18 to 35, half with divorced parents and half with married parents. The research was sponsored by the Institute for American Values, and published in "Between Two Worlds," a new book by Elizabeth Marquardt and Norval D. Glenn. (Tamar Lewin, New York Times, 11/5/2005) SEE David Hoffman's letter to the editor of the Boston Globe, FMQ p. 37 Same-Sex Unions to Become Legal in South Africa South Africa's highest court ruled that same-sex marriages enjoyed the same legal status as those between men and women, effectively making the nation one of just five that removed legal barriers to gay and lesbian unions. But the court stayed its ruling for a year to give Parliament time to amend a 1961 marriage law to reflect its decision. Should the legislature balk, the court said, the law will be automatically changed to make it conform with the ruling..... The decision was essentially unanimous, with one of the court's 12 judges arguing that the ruling should take effect immediately rather than being stayed. The other four nations allowing same-sex marriages are the Netherlands, Belgium, Spain and Canada. (Michael Wines, New York Times, 12/2/2005) Civil Partnerships Become Legal in Britain A Brittish law now recognizes what are called civil partnerships between gay and lesbian couples in England, Northern Ireland, Scotland and Wales. The law allows same-sex couples to benefit from some of the same financial benefits as married heterosexual couples, like tax breaks on inherited real estate and pension rights.... In 1999, France introduced a civil contract for cohabitating couples irrespective of gender, and Germany has enacted legislation for "life partnerships" for gay people. (Alan Cowell, New York Times, 12/6/2005) Wounds Linger (Literally) After Marital Strife According to a report in the December issue of Archives of General Psychiatry, hostile interactions in a marriage may slow the healing of wounds. "Bad relationships are bad for you," said Janice Kiecolt-Glaser, the lead author and a professor of psychiatry at Ohio State University, "but a bad marriage is particularly risky, because your major source of support becomes your major source of stress, and you can't easily look for a replacement." (New York Times, 12/13/2005)
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EDITORIAL: Learning From M&Ms Mortality & Morbidity ("M&M") conferences are a mainstay of modern medical education. Most US teaching hospitals regularly convene M&Ms to examine medical errors that have led to a death, complications, or injuries. M&Ms are rooted in the knowledge that quality patient care depends on a confidential forum that encourages doctors to speak freely about their mistakesâ&#x20AC;&#x201D;without fear of blame, retribution or liability. The goal of these conferences is to improve the care-giving, not to reproach the caregiver. Mediation has much to learn from this model. Our teaching conferences focus on replicating success. Workshops strive to impart the most practical problem solving mechanisms and innovative interventions. While invaluable in their own right, understanding our accomplishments is not enough. Every mediator makes mistakes and eventually presides over a failed mediation. These universal truths make mediator errors and failed mediations more than proper subjects of inquiry. They are a gold mine of untapped information and potential wisdom. No one intends to make mistakes, nor does anyone want their shortcomings exposed to public scrutiny. Unlike Every mediator makes mistakes physicians, we do not have routine, confidential meetings and eventually presides over a engineered to examine our errors. But avoiding selffailed mediation. criticism stymies our success and inhibits our growth as mediators. Once we acknowledge the value in studying our mistakes we will confront the need to create confidential and safe, M&M-like forums. Existing peer supervision groups may provide the best places to begin. These groups already foster a trust-based, intimate setting designed to improve mediation and support its practitioners. Eventually, our teaching conferences and members meetings should strive to develop peer-reviews of mediation mistakes. When seasoned mediators role model by teaching with self-critical examples in a confidential forum, novice mediators will be encouraged to take comparable risks. As difficult as it may be to pursue this course, our commitment to our clients and to our profession compels us to proceed. We can and must develop better ways to learn from our mistakes. The opinions expressed in this editorial are those of Les Wallerstein. He can be contacted at (781) 862-1099, or at <wallerstein@socialaw.com>.
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MCFM NEWS TWO NEXT MEMBERS MEETING PERSONALIZED MARKETING STRATEGIES FOR MEDIATORS Presented by Judy Dovev February 9, 2006 2-4 PM Concord Court House Judy has developed easy and innovative strategies to help small businesses zero in on their marketing objectives. She is passionate about networking and feels relationships play a critical role in business. Judy will offer creative ideas and tips that can be directly applied to your mediation practice. In the segment "Networking for Life: It's Easier Than You Think," she will share her techniques for making networking a part of anyone's life.
always MEMBERS ARE ^ WELCOME TO BRING GUESTS!
MEDIATING PATERNITY ISSUES Presented by Alison McCrone, Esq. April 4, 2006 4-6 P.M Arsenal Center for the Arts 321 Arsenal Street, Watertown By 2003, more than 22,000 children were born out of wedlock in Massachusetts annually, while some 15,000 Massachusetts children experienced their parents divorce. In 2004, there were 16,441 paternity cases in Massachusetts, and in Hampden and Suffolk Counties these outnumbered divorce cases. In this workshop you will learn about "What is a Paternity Case," "What are the Rules of the Court in Paternity Issues," "What is the Court Looking for in Paternity Cases" and "How Can Mediators Best Serve the Court."
always MEMBERS ARE ^ WELCOME TO BRING GUESTS!
Winter 2006 â&#x20AC;˘ Vol. 5 No. 1
35 A RELATED PROFESSIONALS DIRECTORY All MCFM members will soon receive a letter from the Board of Directors requesting recommendations for the first edition of MCFM's Related Professionals Directory. All MCFM members may nominate as many professionals in related fields as they wish for inclusion in the Directory. Recommended nominees should be knowledgeable about the divorce process and committed to creatively helping clients reach non-adversarial settlements. Among the professionals eligible to be included are therapists, parenting specialists, accountants, financial planners and attorneys. All professionals who will be included must be nominated by at least two MCFM members. Please share your recommendations with your colleagues by submitting the names of related professionals on the referral form which will accompany the letter. Your prompt participation will be greatly appreciated! WATCH FOR YOUR LETTER & REFERRAL FORM . . .
NEXT EXECUTIVE COMMITTEE &BOARD OF DIRECTORS MEETING Monday, March 20, 2006 5 PM: Executive Committee 6 PM: Directors In the Office of Debra L. Smith 134 Main Street Watertown, MA 02472 Phone: (617) 924-6728 Email: lawdeb@aol.com Directions to Deb's office are available online at www.lawdebsmith.com PLEASE EMAIL ANY AGENDA ITEMS FOR CONSIDERATION TO: President Laurie Udell at <lsudellesq@aol.com>, or to any officer, all of whom are listed in the DIRECTORATE on page 43
Family Mediation Quarterly
36 SOON ... 70! MCFM NEWSLETTERS & NEWS WILL BE ON LINE Several editions ago the FMQ announced that "eight years after its founding, MCFM began to publish a Newsletter that soon evolved into the MCFM News. Now all 51 editions (1990-2002) are available at www.mcfm.org." Actually, NINE MONTHS after its founding, MCFM began to publish a Newsletter, and as of now nineteen more were found! Thus ALL 70 KNOWN editions (1983-2002) will soon be available at www.mcfm.org. Please rummage through all your old papers to see if you have any editions of MCFM's Newsletter or News that are not online. As always, each edition will be in PDF (Portable Document Format), which can be downloaded and reprinted with Adobe Acrobat Readerâ&#x20AC;&#x201D;free software linked through the MCFM web site. For archival and research purposes, there will be a chronological, Cumulative Table of Contents.
MEDIATION PEER GROUP MEETINGS Merrimack Valley Mediators Group: We are a group of family law mediators who have been meeting (almost) monthly since before the turn of the century! The criterion for membership is a desire to learn and share. Meetings are held at 8:15 AM on the last Tuesday of the month from January to June, and from September to November, at the office of Lynda Robbins, 11 Summer Street, Chelmsford. Please call Lynda at (978) 2568178 or Karen Levitt at (978)458-5550 for information and directions. All MCFM members are welcome. Metro-West Mediators Group: The Metro-West group (usually) meets on the first Friday of the month at the home of S. Tracy Fischer, located at 120 Cynthia Road, in Newton. Monthly meetings begin at 9:15 AM and are open to all MCFM members. Please call (617) 964-4742 or email <tracyfischer@rcn.com> for confirmed dates and directions.
MCFM WEB SITE: UNDER CONSTRUCTION The MCFM web site is in the process of a significant upgrade. Although its not ready for public viewing yet, the improvements should be finalized before the spring edition of the FMQ. The more familiar you are with how it looks now, the more amazed you'll be with the finished product. Meanwhile, please feel free to offer suggestions while its under construction by email to <wallerstein@socialaw.com> Winter 2006 â&#x20AC;˘ Vol. 5 No. 1
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LETTER: Children and Divorce Reprinted from the Boston Globe Letters to the Editor November 30, 2005 To the editor: Elizabeth Marquardt's column "There's no 'good' divorce" (op ed, Nov. 28) deserves two footnotes: First, social science research makes it clear that parental conflict in marriage or divorce is a more robust predictor of children's problems than the mere fact of divorce. Second, divorcing parents have better options today than in years past for de-escalating conflict by negotiating the terms of their settlements with mediation or, more recently, collaborative law. As a child of divorce, I agree with Marquardt that divorce leaves scars in children, even when the parents split amicably. To avoid even deeper scars, however, divorcing parents would be well advised to look for non-adversarial methods of obtaining one. David A. Hoffman, Esq. Boston Law Collaborative, LLC <DHoffman@BostonLawCollaborative.com>
"When I said I would rather die a bachelor, I did not think I should live till I were married." William Shakespeare
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ANNOUNCEMENTS SIX-DAY BASIC MEDIATION TRAINING March 4, 7, 14, 28 & April l, 2006 Northampton The Mediation & Training Collaborative (TMTC) This 34-hour interactive, practice-based training is open to anyone who wishes to increase his or her ability to help others deal with conflict, whether through formal mediation or informal third-party intervention processes in other professional settings. TMTC is a court-approved mediation program, and this training meets SJC Rule 8 and Guidelines training requirements for those who wish to become court-qualified mediators. For more details or brochure, contact Cheryl Fox (cfox@fcac.net) or Susan Hackney (shackney@fcac.net) or call 413-774-7469.
COMMUNITY DISPUTE SETTLEMENT CENTER SPRING 2006 TRAININGS Advanced Training in Divorce Mediation: (23-26 hours) March 17 Friday March 22 Wednesday March 29 Wednesday April 5 Wednesday April 7 Friday April 10 Monday
9 AM - 5 PM 5 PM - 8 PM 5 PM - 8 PM 5 PM - 8 PM 9 AM - 5 PM 5 PM - 8 PM (optional)
Mediation Training: The Basics: (33 hours) Hands-on skill development for responding to conflict May 5, 6 Friday & Saturday May 8 Monday May 11, 12 Thursday/Friday
9 AM - 5 PM 4:30 PM - 7:30 PM 9 AM - 5 PM
For more information please contact CDSC at (617) 876-5376, or by email: cdscinfo@communitydispute.org, or at our web site: www.communitydispute.org.
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39 BASIC TRAINING: MEDIATION AND CONFLICT RESOLUTION Offered by Framingham Court Mediation Services DISPUTE RESOLUTION CENTER 600 Concord Street Framingham, MA 01702 A 36 hour basic training in mediation and conflict resolution will be conducted by the Framingham Court Mediation Services (FCMS), a court-approved program. Participants will be introduced to the basic skills in mediation and conflict resolution through lectures, interactive exercises, and role-plays. An apprenticeship may be available upon successful completion of this training. Trainers: David Babik, Brian Blancke, Carol Bronder, Patty Contente, John Saxe, Karen Spilka, Emily Tobin, Beverly Waring, and Lisa Wong Training Dates and Times: Saturdays, 3/19/05 and 4/9/05, 8:30am — 4:00pm; Mondays, 3/21/05, 3/38/05, and 4/4/05, 6:00pm — 9:30pm, and Wednesdays, 3/23/05, 3/30/05, 4/6/05, 6:00pm — 9:30pm Cost: $650.00 For more information and inquiries about CEU's, contact Lisa L. Wong, Director of Training at (508) 872-9495 or visit www.framinghammediation.org.
ADVANCED DIVORCE MEDIATION TRAINING May 12, 13, 19 & 20, 2006 Amherst The Mediation & Training Collaborative (TMTC) Co-Sponsored by UMass Legal Services A 30-hour advanced mediation training for those interested in working with separating, divorcing or already-divorced couples. Topics include the emotional and legal aspects of divorce, parenting issues, division of assets and debts, spousal support, working with non-traditional couples, mediator ethics, dealing with high conflict, and more. Fee includes training manual and coached role plays. Social Work CEC's available upon request. Trainers are Betsy Williams, Cate Woolner, Larry Saunders, Stephany Levin, Oran Kaufman and Court Dorsey. Fee is $750 or $700 with registration postmarked by April l4. Prerequisite - 30 hours Basic Mediation Training. For more information - 413-774-7469 x16 or shackney@fcac.net
Family Mediation Quarterly
40 PARENTING COORDINATION: WORKING WITH HIGH CONFLICT FAMILIES Robin M. Deutsch, Ph.D. Hon. Eileen M. Shaevel (Ret.) May 5 & 6, 2006 The Center for the Study of Psychology and Divorce and The Massachusetts Chapter of the Association of Family and Conciliation Courts will present a two day training examining the role and functions of the Parenting Coordinator and the interventions helpful in reducing conflict. Focus will be on the psychological dynamics in high conflict families and the impact on their children. Practical Parenting Coordination techniques and decision making methods will be taught. This comprehensive training will include subject areas outlined in the new 2005 AFCC Guidelines for Parenting Coordinators. Location: Dedham Hilton. Cost: $245.00 for both days. Continuing Education Credits: Available. For more information or registration Contact: Continuing Ed at MSPP (617327-6777) or www.mspp.edu
ASSOCIATION FOR CONFLICT RESOLUTION FAMILY SECTION MID-YEAR CONFERENCE JULY 13 – 16, 2006 Sea Crest Oceanfront Resort & Conference Center Falmouth, Massachusetts FIVE SIX! REASONS NOT TO MISS THIS GREAT EVENT * Cutting Edge Family Mediation Technology * Stimulating Workshops * Miles of Sandy Beaches * Hotel Overlooking the Ocean * Visiting with Friends & Colleagues
* MCFM members may attend the whole conference at the ACR member rate even if they do not belong to ACR! The ACR member rate for the whole conference is $380 and for non-members is $460. FOR MORE INFORMATION: www.acrnet.org Winter 2006 • Vol. 5 No. 1
41 THE HARVARD NEGOTIATION INSIGHT INITIATIVE For the June 2006 Summer Learning Forum Week One: June 19-23 Week Two: June 25-29 Harvard University, Cambridge, MA Integrating: negotiation, conflict resolution and leadership with insight tradition wisdom and skills. Offering: five different courses with world class faculty including Leonard Riskin, Kenneth Cloke, and Erica Ariel Fox. Sponsored by the International Academy of Mediators and endorsed by the American Bar Association Dispute Resolution Section. All participants will receive a Certificate of Completion from the Program on Negotiation at Harvard Law School. MORE INFORMATION: Email Cristin at cmartin@law.harvard.edu or call 617.495.7711. Register: visit www.pon.harvard.edu/hnii
COMMUNITY DISPUTE SETTLEMENT CENTER Building Bridges â&#x20AC;˘ People to People â&#x20AC;˘ Face to Face 60 Gore Street Cambridge, MA 02141 Established in 1979, the CDSC is a private, not-for-profit mediation service dedicated to providing an alternative and affordable forum for resolving conflict. CDSC also provides training programs in mediation and conflict management to individuals and organizations. For more information please contact us at (617) 876-5376, or by email: cdscinfo@communitydispute.org, or at our web site: www.communitydispute.org.
MASSACHUSETTS COLLABORATIVE LAW COUNCIL, INC. The MCLC offers legal representation to people in conflicts who share a commitment to resolving disputes without litigation. To find out more, or to locate a collaborative lawyer near you, visit MCLC on-line at www.massclc.org.
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JOIN US MCFM membership is open to all practitioners and friends of family mediation. MCFM invites guest speakers to present topics of interest at four, free, member education meetings annually. Educational meetings often satisfy certification requirements. Members are encouraged to bring guests at no cost. MCFM members also receive the Family Mediation Quarterly and are welcome to participate on any MCFM Committee. All members are listed on-line at MCFM’s web site, and all listings may be “linked” to a member’s email and web site. Annual membership dues are $90. Please direct all membership inquiries to DeLaurice Fraylick at masscouncil@mcfm.org. REFFERAL DIRECTORY: Every MCFM member is eligible to be listed in the MCFM Referral Directory. Each listing in the Referral Directory allows a member to share detailed information explaining her/his mediation practice and philosophy with prospective clients. The Referral Directory is printed and mailed to all Massachusetts judges, and to each listed member. The referral directory is also available on-line at the MCFM web site. MCFM was the first organization to issue Practice Standards for mediators in Massachusetts. To be listed in the MCFM Referral Directory each member must agree to uphold the MCFM Standards of Practice. Copies of the MCFM Standards of Practice are available on-line at the MCFM web site. The annual Referral Directory fee is $60. Please direct all referral directory inquiries to Jerry Weinstein at JWeinsteinDivorce@comcast.net. CERTIFICATION: MCFM was the first organization to certify family mediators in Massachusetts. Certification is reserved for mediators with significant mediation experience, advanced training and education. Extensive mediation experience may be substituted for an advanced academic degree. A copy of the MCFM certification requirements is available on-line at the MCFM web site. Every MCFM certified mediator is designated as such in both the electronic and the printed Referral Directory. Only certified mediators are eligible to provide mediation services to the Massachusetts Probate & Family Court through MCFM. Certification must be renewed every two years. Certification applications cost $100, and re-certification applications cost $50. Certification and re-certification applications are available on request from Lynn Cooper at lynnkcooper@aol.com. Winter 2006 • Vol. 5 No. 1
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DIRECTORATE MASSACHUSETTS COUNCIL ON FAMILY MEDIATION, INC. 23 Parker Road, Needham Heights, MA 02494-2001 Local Telephone & Fax: (781) 449-4430 masscouncil@mcfm.org www.mcfm.org
TOLL FREE: 1-877-777-4430 OFFICERS President
Laurie S. Udell, 399 Chestnut Street, Needham, MA 02492-2426, (781) 449-3355, lsudellesq@aol.com
Vice-President
Kathleen A. Townsend, Divorce Mediation Group, Inc., 1441 Main Street, Springfield, MA 01103, (413) 733-4444, kathleen@divmedgroup.com
Vice-President
Marion Lee Wasserman, 199 Wells Avenue, Suite 201, Newton, MA 02459(781) 449-4815, mlw@reachaccord.com
Secretary
Jonathan E. Fields, Fields & Dennis, LLP, 20 Pickering Street, Needham, MA 02492, (781) 433-0330, jfields@fieldsdennis.com
Treasurer
Mark I. Zarrow, Lian, Zarrow, Eynon & Shea, 34 Mechanic Street, Worcester, MA 01608, (508) 799-4461, mzarrow@lzes.com
DIRECTORS
Lynn K. Cooper, Robert V. Deiana, Howard I. Goldstein, Mary T. Johnston, Michael L. Leshin, Harry E. Manasewich, Steven Nisenbaum, Lynda J. Robbins, Patricia A. Shea, Vicki L. Shemin, Debra L. Smith & Les Wallerstein
DIRECTORS EMERITUS
John A. Fiske, Janet B. Weinberger, Jerome Weinstein & Barbara N. White
ADMINISTRATOR DeLaurice Fraylick, 23 Parker Road, Needham Heights, MA 02494-2001, (781) 449-4430, masscouncil@mcfm.org
Family Mediation Quarterly