Family Mediation Quarterly
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FAMILY MEDIATION QUARTERLY Vol. 3 No. 3
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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 In my first message as MCFM president, I want to tell you what’s planned for the coming year. (The MCFM “year” is basically a school year). Shortly after the new officers and directors were elected, we had a long-range planning meeting in midJune to set the course for the coming year at the lovely home of long-time Council member and Director Emeritus, Janet Weinberger. And now I must digress and say how greatly indebted the Mass Council is to her, and how much we will all miss her when she moves to Philadelphia later this summer. Our very best wishes, Janet! Our next Fall Institute will be held on Friday, October 15 at the Wellesley Community Center under the tireless leadership of David River. For those of you who attended last year’s Institute, you know it will be a day filled with learning, laughter and lots of good food. For those who couldn’t come last year, please make it a point to join us for this event.
Breathing New Life Into Court-Connected Mediation By Hon. Gail L. Perlman
The Lawyer as Healer By David Hall
Couples in the U.S. Used to Marry Early, Often and Informally By Cynthia Crossen
How John Haynes, Labor Negotiator, Became A Major Contributor To Divorce Mediation A Reminiscence by Salvatore Ambrosino
Upheavals Do End: The Lasting Benefits of Divorce Mediation By Lisa Blout & William L. Blout
The Literal Life: Commentary on Upheavals Do End By John A. Fiske
Massachusetts Domestic Relations Most Important Opinions from Massachusetts Lawyers Weekly
Historic Advertisement Healy, Lund & Fiske
There will be four other educational programs throughout the year on four different topics, the first one in September. Check the MCFM web site for details. We have had a hard-working group revising the MCFM brochure which we plan to distribute by the end of the summer to courts and public libraries around the state, as well as to our members. The brochure looks great and hearty thanks to Marion Wasserman, Mary Johnston and Kathleen Townsend for their work on this project. Another exciting thing planned is the compilation of a directory of other professionals, to whom we often need to turn, such as, financial planners, accountants, developmental psychologists, military pension experts, and many more. In the next few months, you will receive a questionnaire in which you may nominate a professional with whom you or your clients have had a good experience. As the oldest professional organization in Massachusetts dedicated exclusively to family mediation, the MCFM wants to play a role in expanding mediation in the Commonwealth, and we welcome your suggestions. Elsewhere in the FMQ is a listing of the Council’s officers and directors. Contact any of them to see how you can get involved. I look forward to seeing you at the Fall Institute!
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MCFM © 2004 All Rights Reserved Family Mediation Quarterly
Summer 2004 • Vol. 3 No. 3
Ethical Quandaries Join Us Directorate Editor’s Notice
BREATHING NEW LIFE INTO COURT-CONNECTED MEDIATION By Hon. Gail L. Perlman The history of mediation in the Massachusetts Courts is a checkered one. In the early days of “alternate” dispute resolution, the Commonwealth was among the progressive states. We boasted some of the best thinkers in ADR and some of the most productive activists. Frank Sander with his idea of the Multidoor Courthouse is here in Cambridge. Patrick Phear’s Children’s Hearings Project was an early and nationally respected program. Albie Davis established mediation in the District Courts and her influence continues to this day. Other states, however, have far outstripped Massachusetts in welcoming and incorporating mediation into the day-today ambiance of courthouse life – especially the family courthouse. With an enormous commitment of its legislature, California instituted mediation in family courts nearly twenty years ago and funded it generously even with a research component, so that California has been able to track its success and its challenges in repeated reports and updates. Numerous other states have made extensive financial commitment to the establishment of mediation in the Courts. Florida, New Hampshire, Maine, Illinois, Minnesota, Wisconsin, and Ohio are just a few. Our hopes for ADR in Massachusetts rose over ten years ago when the Supreme Judicial Court appointed its Standing Committee for Dispute Resolution. Believing that the courts would adopt ADR
if it were reflected in a Rule, the Committee spent its early years, under the capable leadership of Hon. Peter Agnes, creating the Uniform Rules on Dispute Resolution, adopted by the Supreme Judicial Court in May 1998. The Committee continued its work, under the equally capable leadership of Hon. John Cratsley, to draft the long-anticipated Rule 8 on Qualifications. That Rule was adopted by the Supreme Judicial Court in January, 2004 and will take effect on January 1, 2005. But with all the prodigious work of the Standing Committee, with the extraordinary growth of private mediation, with the greater knowledge of mediation in the general community, mediation is still not an integral part of our court culture. I have had to spend many bitter hours asking myself why. I especially required myself to endure a rigorous analysis of the problem when I discovered that I was a significant part of that problem. After all, I’d spent ten years doing mediation as a principal element of my professional life. I’d been actively involved in the Massachusetts Council on Family Mediation. I’d served on the Standing Committee. And yet, once I found myself on the Family Court bench, I was referring cases to mediation just as infrequently as my colleagues who had had no such love affair with ADR. How could that be? And did my colleagues have different reasons for not referring? And why weren’t the Uniform Rules enough to achieve the needed change in our judicial
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system? And how could Massachusetts, that bulwark of forward-thinking folks, that bastion of ADR stars, that admired legal community, remain so far behind the times?
pomposity of Latin – does not begin to describe the massive barriers that these litigants face when they try to use their courts.
I’ve come to recognize that when I have You may want to stop reading now when such families before me, I do not refer to you hear that I’ve not yet found clear mediation. Or I refer to mediation – but answers and that the rest of this article will with no real expectation that the not provide them. But I do have some individuals will leave the courthouse and guesses–gleaned in long discussions with act on the referral. I’ve read their financial colleagues who care Other states have far outstripped equally with me that we solve this problem. And I Massachusetts in welcoming and do have some new incorporating mediation into the daythoughts about new ways to-day ambiance of courthouse life – to try.
especially the family courthouse.
The population of the family court litigants consists partly of those individuals who, on their own, seek out mediation for the solution of their divorce and post divorce conflicts. The court population also consists of people who have never heard of ADR, or who don’t usually use conversation as their principal method of problem-solving, or who are poor, or who have little education (and are sometimes–more often than I would have guessed–illiterate), or who are often new to American culture, or who are not comfortable with the English language, or whose lives are a struggle against the odds just for achieving the basics of food and shelter. We often lump this part of the population together as “pro se litigants.” This is the court-centered way of describing that one characteristic of the population which most relates to the traditional way of doing business in a court. The term – even as it has been revised to “self-represented litigants” to avoid the
statements. I see that, even with sliding fee scales, they have not one extra penny to spend on the “luxury” of mediation. I hear their arguments in Court. I observe that they have not had a calm conversation with one another for a long time. Maybe never. I observe that they will not be able to engage even in the short but necessary conversation that will precede their taking action on my referral. Or rather, I observe that they would need help to engage in that preliminary conversation. Because the population I’m describing is a very large percentage of the total family court population, I have come to assume that I probably miss opportunities for referrals. And this is a significant question: do we judges miss opportunities for some families because so many families present themselves to us as unable to take advantage of mediation? Do we allow
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mediation to drift off our radar screens because so many people in our line of vision are unlikely candidates for the process?
mediation service was just down the hall from me, that people would not have to take additional steps after they leave the courtroom to avail themselves of mediation, that they could make person-toperson contact with a One judge asked me for a bumper mediator right then and sticker he could attach to the bench there. I do not know for sure that this will turn out to remind him that he could refer to to be true. But it is my latest working hypothesis. mediation. Other judges have said that they don’t refer because they forget about this available service. “I’m trained to think like a lawyer,” one judge said to me. “I think about legal remedies and resources when I analyze a case.” One judge asked me for a bumper sticker he could attach to the bench to remind him that he could refer to mediation. Some judges say that there hasn’t been sufficient public information about mediation. Some might have been open to mediation but have lost faith in the process because of flawed agreements prepared by mediators. Some worry that mediation is useful only for parenting issues and should not be used for financial issues. Some are concerned that any step added to the traditional steps of litigation is burdensome for litigants and only lengthens the process. Some believe that courts should be used for litigation only and should avoid any such ancillary services. In the last year, I have learned two more reasons – at least about my own failure to refer: (1) Mediation should be close by. I believe I would refer more readily if I knew that the
(2) The timing for mediation is crucial and personal. For the last year or so, in the Hampshire Division, we’ve had an experimental project in which an attorney, with great sensitivity to the population and with great communication skills, has conducted mandatory introductory case management conferences in every paternity case in which the parents are selfrepresented. The conferences are scheduled shortly after the Complaint is filed or the Answer is filed. The purpose of the conference is to introduce the litigants to the court – its processes, the substantive law involved in the particular case, the obligations each parent will have during the litigation, and the ADR options available to the parents. From our experience in that project, we’ve learned that while people frequently express much interest in mediation, they are often not ready to engage in it that early in the litigation. In addition, we’ve learned that some of the people who express much interest in mediation never act on their interest. They return to the Court in later scheduled hearings and report that they have not engaged a mediator. This experience has only underscored my
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assumption that, if mediation services were readily available, they might be more widely used. And the experience has also led me to believe that it might be valuable, on the parties’ second trip to the court, to check in on their original enthusiasm for mediation and test whether or not they are more ready than they had been at the outset of the litigation.
the draft and help us in refining our Department’s Time Standards. Chief Justice Dunphy of the Probate and Family Court has established two separate committees, one to work on Time Standards and (eventually) on Unit Evaluation and one to work on Staffing Models. The first committee is known as the Steering Committee on Performance and Accountability and is chaired by Hon. David Sacks of the Hampden Probate and Family Court. The second committee known as the Committee on Staffing Models is chaired by Hon. Paula Carey of the Norfolk Probate and Family Court.
These “findings” (informal and untested though they are) arise at a time of particular promise in the recent history of the Court system. In late 2003, Chief Justice Robert Mulligan became the “CJAM” (Chief Justice for Administration and Management). He wasted no time in communicating to the judges his intention to concentrate much effort Mediation should be close by. on improving the management of the courts of Massachusetts. In that regard, he In the Steering Committee, we’ve announced three separate but related goals: established a Sub Committee on Mission the implementation of time standards for and Culture. “Mission” refers to the the completion of cases in each department CJAM’s directive that each Court and each of the Trial Court; the establishment of Department establish a Mission Statement. staffing models in each court to ensure that “Culture” refers to our own recognition each staff is adequate and appropriate to the that the courts in general have a distinct work being done in that court, and the “culture” of which we have to be aware in enactment of unit evaluation by which order to implement change and that each each court’s performance can be reviewed Division also has it own distinct “culture” and assessed. that we must take into consideration as we move toward greater uniformity across the The CJAM asked each Department to Department. Discussions in the Mission forward draft Time Standards to him by and Culture Subcommittee led to a February 13, 2004. Those drafts have, at recognition that ADR should be a the time of this writing, been submitted to significant focus of our analysis as we the CJAM. In the Probate and Family advance toward implementing the expected Court Department, our draft will now be changes in court management. presented publicly so that lawyers, other personnel who operate in the courts (such Okay, you guessed it. Now there’s a Task as mediators and Guardians Ad Litem) and Force on ADR connected with the Steering the general public will be able to respond to Continued on next page Summer 2004 • Vol. 3 No. 3
Committee. A number of mediation providers, attorneys and academics met
The timing for mediation is crucial and personal. together in February, 2004 to begin to consider useful next steps in implementing the promise of ADR within the Massachusetts court system. Why, you may well ask, is there new hope? Why should now be any different from the last ten years in our efforts to bring ADR into the mainstream? And for once I have an answer. There is new hope because under the new Time Standards, the judges will become responsible for moving cases to conclusion in the courts. In all the larger courts, we are moving to a so-called “Individual Calendar” system in which each case is assigned to an individual judge. Each judge will have his or her own caseload, will decide all matters connected with those cases and will have administrative responsibility for those cases. We have been careful to recognize that in the Family Court people cannot be forced through litigation without sensitivity to the very personal and sometimes inconsistent and changing readiness of the parties to proceed with the litigation. Within that recognition, however, we have established certain management expectations. The principal expectation is that no court event occurs without the scheduling of the next court event. Another expectation is that early in the litigation, the Judge works with the parties to schedule all the major events of the litigation – motions, discovery and the Pre Trial Conference.
Now, managing cases is not entirely new for judges in the Probate and Family Court. At least from the pre-trial conference stage onward, a judge may traditionally have become active in the management of the progress of a case. A judge may take an active interest in “caseflow” when a particular case seems bogged down even prior to the pre-trial conference. In courts where the individual calendar system has been in place for some time, the judges have had to develop management skills and methods. But for all of us, under new Time Standards and under Unit Evaluation, it will be the first time that we are managing cases systematically and under the organized observation of others. It may be that under these conditions, we will consider mediation (and other ADR processes) in a new light – as resources to assist us in meeting the rigors of the new system. If this is true, the changes in court management present a new opportunity for ADR providers to become an integral part of the administration of justice. Talking about mediation as a management tool raises at least three connected subissues. A. Pilot Projects. We often think about instituting new ideas by establishing pilot projects. A cautionary note. Pilot project too often flourish and die. They take a great deal of time to invent and establish. They raise the hopes of many people. They often result in written reports of success and suggested next steps. And the reports line bookshelves and eventually become obsolete. I hope that, even if we decide to experiment with pilot ADR projects, we will keep our eye on the bigger goal of
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widespread court connected ADR. B. Mediation and Dispute Intervention. Questions arise as to whether or not we can achieve compatibility between in-house court connected mediation and the historic work of dispute intervention performed by Probation and Family Service Officers. Do we have to worry that mediation will supplant dispute intervention? Could we unwittingly create a two-tiered system in which dispute intervention is supplied to the self-represented population and mediation to litigants who have attorneys? Or in which dispute intervention is the dispute resolution method of choice for people without the funds to pay for mediation? Any responsible design for incourt ADR should assiduously avoid these class-based divisions.
alimony. Mediation, on the other hand, can deal with both of those issues and can often adopt a more leisurely time-frame for resolving family conflict. Both methods are of crucial importance to the proper conduct of court business. Neither is suited to one population alone. Either might be the most effective intervention at any point in any case. Part of a responsible change in court culture will be the nurturing of a court-wide perspective that values both processes equally. C. Financial Resources. In the end, finding public funds for the establishment of mediation through the courts of the Commonwealth may be our greatest challenge. In many of the states which have successfully incorporated mediation in the judicial system, some portion of the mediation service is funded publicly and is part and parcel of the court’s budget. We have much work ahead of us – especially in this time of extreme fiscal pressure – to achieve a commitment to an adequate
Mediation and dispute intervention differ in nature, and the difference is reflected within the Uniform Rules on Dispute Resolution where each has its own distinct definition and its own qualifications. Primary among the Right now, change is in the air, differences are the confidentiality and it could include mediation. of mediation contrasted with the value in dispute resolution of a Probation expenditure of public funds to enable ADR Officer’s being able to disclose to the Court to become a routine service of the justice the content of the intervention. As a system. It will require our being able to practical matter, most dispute intervention make a strong case for the value of is brief and focused on the particular issues mediation in the court’s efforts to dispense being heard on a particular day (though justice in a timely and measurably sometimes it can take a longer and broader effective way. perspective). Further, dispute intervention deals with conflicts around parenting For those of us who have observed schedules and child support. It does not mediation as a life-changing experience for (and Probation Officers argue strenuously neutrals and participants alike and who that it should not) involve division of recognize its potential for long-term marital property issues and issues of Continued on page 16 Summer 2004 • Vol. 3 No. 3
THE LAWYER AS HEALER By Professor David Hall Editor’s Note: This article is a transcript of the keynote address delivered by Professor Hall at the 7th annual MCLE Family Law Conference held in Boston on March 27, 2004.
It is an honor to commence this family law conference. I would like to thank Judge Carey for reaching out to me so that I could share some ideas with you this morning. I believe that those who are in the forefront of providing legal advice to families as they struggle with challenging and difficult decisions and issues hold a special but often under recognized place in the heart of our profession. I also believe that this is an area where law, heart and values easily intersect. Therefore for me sharing a few moments with those who are the caretakers of this special part of our legal obligation and calling is a special tribute. In a time when the definition of family is undergoing dramatic change and the issues facing families continue to escalate, your role has become even more demanding and complex, which to me is one reason why it is necessary to step back and revisit some fundamental questions. Two of these fundamental questions are – who are we as lawyers and judges, and what are we here to do. Though there are numerous ways in which one can begin to analyze and answer these questions, I have chosen of late to address them through a holistic spiritual lens. I deeply believe that law is a calling, and that we are primarily called to heal. That may sound strange, naïve, other worldly and unrealistic for
some of us who are steeped in the traditional trappings of legal practice. But I would ask that if you fall in that category that you suspend your resistance for a moment and try to see yourself and what you do through this lens. If you already see yourself in this way, then see this moment as a reaffirmation of courageous choices you have made. So I want to commence this important conference by speaking from the theme “the calling of lawyers and judges to be healers.” The grist for the lawyer and judge’s mill is conflict. Without it our role and value in society would greatly diminish. Yet very little time is spent in law school or in practice trying to fully understand conflict from an intellectual, emotional and spiritual standpoint. We benefit enormously from its existence, but our clients suffer immeasurably from the limitation of our understanding of conflict and its role in their lives and in society. We believe that our primary role is to resolve conflict by finding some objective standard upon which to rest our decisions, and some neutral and sterile ground upon which we can stand. We are generally only concerned with the material and legal aspects of the conflicts we encounter. This traditional legal approach to conflict resolution does not empower us to see inside the conflict and observe the emotional and spiritual aspects of it, touch the positive seeds and opportunities it contains, or fully contemplate our role in relationship to the challenge. Though the groundbreaking movement toward alternative dispute
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resolution has brought some of these issues to the surface, they have not become the standard focus for most lawyers and judges. Even those who embrace ADR often fail to fully embrace the emotional and psycho-spiritual aspects of conflict. Therefore we need to widen the lens of our understanding of conflict, and understand that we are called to lead it, highlight it, clarify and resolve it, learn from it, and always be a healing force in the midst of it.
proceedings do not generally address. It is very convenient and efficient for lawyers to disregard these emotions and underlying patterns and consider them as outside their domain or area of expertise. However, these seemingly peripheral, sometimes subtle aspects of the conflict are generally influencing and affecting the clients’ and the opposing parties’ legal goals, strategies and actions. One could argue that some clients are bringing more emotional discomfort and discord to the table than they are bringing legal issues. If we don’t make them a part of the process, and a part of the solution then whatever decree we enter will be limited and sometimes meaningless.
For in the midst of all conflicts there is not only disruption and damage to legal relationships, but also to the people involved, and to their individual and collective spiritual wholeness. When marriages fall apart and the parties seek a divorce, their legal connection to each other is disrupted, damaged and ultimately The responsibility for their healing should terminated or recasted, but their emotional not rest solely on the shoulders of lawyers and spiritual connections will continue to and judges, and there are times when the exist even when they are miles apart and problems are so deep and complex that our there are no children The definition of family is undergoing involved. This damage or disruption is dramatic change and the issues facing generally not addressed families continue to escalate. unless the parties are wise enough to seek counseling or therapy. role is to advise them to seek other It is unfortunate that these aspects of the professional help. But even in those cases, relationship and conflicts are not addressed how we see ourselves and the person will within the legal arena because they often play a critical role in their healing and their serve as the fuel for the legal conflict that is subsequent therapy. brewing in the courtroom or in the lawyer’s office. Each party generally suffers from The concept of the lawyer as healer is not deep emotional feelings of hurt, denial, just a perspective to be embraced by those disappointment, betrayal, and other who practice collaborative law or perplexing feelings. Whether they want therapeutic jurisprudence; though this out of the relationship or not; whether they viewpoint makes it easy. Each of us who are the primary cause for the disintegration take on a case or presides over a dispute or not, there is still a critical level of must understand that what has been placed damage that our tradition decrees and the Continued on next page Summer 2004 • Vol. 3 No. 3
the work the client has asked the lawyers to do. You cannot separate out a person’s emotional and spiritual state from their legal situation. They are there staring us in the face, crying out for attention. When we ignore them, or Our clients suffer immeasurably from the pretend that they limitation of our understanding of conflict are a marginal part of the and its role in their lives and in society. experience we are allow the person to discover something still affecting the person, and negatively about themselves, the conflict, and the contributing to their unhealthy state. Every other person that will move them closer to person whether they are being paid by the a state of wholeness. We have that power. client or not, who interfaces with the But it is this power that we are more likely person during this period of brokenness is to abuse than the power bestowed upon us either contributing to their healing or by the law. We abuse it not because we contributing to their present state of mishandle it, but because we too often disequilibrium. We can’t run from this choose not to use it at all. We pretend that human reality. Therefore we are already our license as lawyers does not permit us to billing clients for this work. We are just not venture into these areas. But our license as generally giving them their monies worth. caring human beings does permit us to see One reason some individuals have negative the whole person who stands before us and perceptions of lawyers is because their not just see them as a case to be ruled on interactions with us have left much to be and filed away. desired. Their negative perceptions are often a product of the fact that they didn’t Some lawyers feel that this aspect of get the results they desired, but it is also a human conflict is outside of their area of product of the fact that they or their expertise and training since they are not problem didn’t get the care they deserved. licensed to be psychotherapists. In addition, they are concerned that this is not Healing encompasses the restoration and something they should be billing a client reclamation of one’s emotional and for when there are more qualified spiritual wholeness. People come to you individuals who can provide these services having lost more than their children, spouse and have been trained specifically for this or partner. They come to us having lost a type of situation. These arguments and part of their dignity, self respect, many others serve as legitimate lines that confidence, emotional equilibrium and some lawyers draw around their practices, even sometimes their belief in the beauty of and use them as a justification for rejecting life. Our calling is not only to give them a this role as healer. The difficulty with these document that declares their rights, but to positions is that this work and these issues give them an experience that may help are fundamental to, and intertwined with restore their sense of purpose and meaning
in life. Even when we must give them and limiting their ability to move on with uncomfortable advice or rule against them, their lives. we must do so in a manner that lets them see the highest spiritual principle at work in Unfortunately many lawyers are more us. Transformation occurs in people when comfortable embracing the role of savior they encounter authentic, caring and than they are that of healer. They embrace challenging individuals and circumstances this role by working hard to deliver their that permits them to see themselves and the client from the legal chains that bind them, world in a different way. This doesn’t or to protect them from the evil person on happen quickly or easily, and it is often a the other side. However, lawyers stand a process that happens in different stages and better chance of being healers than we do at different levels. The client plays the being saviors. For despite our hard work crucial role in how the response, and diligence we often do not control the interactions, and words of others, will final outcomes of our client’s situation. affect them, but the sender of these But we do control every aspect of our messages and energy cannot be absolved of interactions with them, and it is during this responsibility. Therefore lawyers and journey that we can help them discover a judges, those who are central to the truth about themselves and their situation, resolution of the substantive conflict, and even if the proceeding never uncovers the have entered into a special relationship truth about the conflict. with the parties, have a clear responsibility to be part of the healing process. We have a In order for a lawyer to embrace this responsibility to try to be sensitive to the calling of healer, he or she must be striving underlying sources of the problem or constantly to stay on the path of wholeness. conflict, and try to see the whole person, The admonition to doctors that is captured and understand the forces that are in the phrase, “physician heal thyself,” also influencing their lives and situation. We applies to lawyers. Before we can be the have a responsibility to be present with dispenser of healing energies we must them and not just One could argue that some clients are doing things for them. We have a bringing more emotional discomfort and responsibility to discord to the table than they are hold up a mirror so bringing legal issues. that they cannot only see themselves, but see the lessons that may be buried work to be at a place where we have inside this difficult situation they are experienced these same forces in our own confronting. So much of their pain is lives. This is not an easy part of our spilled on the lawyers table and the judge’s calling. If my life is in disarray, if I have bench without any probing, but many just not found a source of rejuvenation for ignore it or wipe it away. Yet it is still there myself, then how can I dispense living influencing how the client sees the problem Continued on next page
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in our hands is the lives of trusting people. How we look into their eyes, the compassion we bring to their situation, the depth of our ability to probe behind their answers in a caring and creative way may
water to those in need? I am not here to prescribe a path for lawyers and judges to follow in order to take better care of themselves and to reach their full human potential, but I am here to remind us that
hangs outside our offices. This is basic stuff that we have taken for granted and ignored. It is so basic that it has become invisible to the training and practice of law. Law by its nature is a spiritual profession, because at its core Unfortunately many lawyers are more we exist to bring comfortable embracing the role of savior order, peace, and meaning to an than they are that of healer. otherwise chaotic world. We must this is essential in order for us to fulfill our see ourselves as individuals who are in a calling, and for the profession to address position to contribute greatly to the healing the numerous challenges which it faces. of conflicts and of people. This does not The high level of depression, mean that we have some magic potion that dissatisfaction, alcohol and drug abuse we can dispense. It means that we exist at among lawyers is not just a product of how the eye of the conflict and are able, if we hard we work, but a manifestation of how open our eyes to bring enlightenment to little we work on ourselves. dark places. We are given access to some of the most private thoughts and intimate I believe that our willingness to practice feeling of other human beings. We can our faiths as we practice our craft; our view these thoughts and feelings as crude willingness to open the vaults of our hearts stones for our private entertainment, or we as we open the books of our trade; and our can view them as precious gems, which if willingness to pursue a balanced and handled correctly could enrich the lives of reflective life as we strive to balance the those who shared them with us. scales of justice, will allow us as a profession to become more sane, humane In conclusion, it has been often stated that and whole. families are the foundation of societies, civilizations and nations. It is through these Being a healer is not about practicing human collectives that our most precious psychotherapy, it is about being a caring, values are nurtured, and our most lasting positive and sensitive human being in all of experiences occur. If families are to our interactions with those we serve, even continue to serve this critical function, then with those who have committed those who constitute the family, in their horrendous acts. We owe that to them as greatest hours of need and in their most human beings, and that obligation is challenging moments need more than just a increased when people entrust us with their legal remedy. If all we can do is process problems and thus with their lives. There is their claims, determine their rights and no new degree to be earned before we send them a bill, then we have not fully engage clients at this level. There is no contributed to the stabilization and growth new subscript to add to the shingle that of families. The lawyer and judge who Family Mediation Quarterly
operates as a healer understands that they have a greater responsibility to the fractured and broken families that come to their offices and chambers.
of unfolding faith and discovery. If you are at least willing to try, then you will figure out the answers that fit your personality and your practice. But remember, contrary to what your law professor taught you, lawyering is as much about the heart, as it
They understand that they have a responsibility to try to Being a healer ... is about being a help the person identify the real source of the caring, positive and sensitive human conflict or challenge, so being in all of our interactions with that it doesn’t manifest itself in other dramatic those we serve, even with those who crises, or spill over into have committed horrendous acts. other relationships in the future. They see their role as trying to heal is about the head. It is through the the personal pain, even if they can’t restore powerful combination of head and heart the broken relationship. They know that that lawyers and judges can help heal the ultimately family is not about vicinity and world. time, but about values and the ability to care and adapt to change. David Hall is a professor of law at the Northeastern University Each of you gives so much to families School of Law, where he served as everyday. I am only challenging you to ask Dean from 1993 – 1998. He is yourself whether you can give even more. That is not a question of time, but a presently writing a book on the intersection question of perspective and heart. I have of law and spirituality, entitled Rivers and not given you a road map to get there, and Stones: A Call for the Spiritual I have probably raised more questions for Revitalization of the Legal Profession. you than I have answered. But this is not a Professor Hall can be contacted at (617) journey of absolute answers; it is a journey 373-3668, or by email at email@example.com.
"The heart has its reasons which reason knows nothing of." Blaise Pascal 1623-1662 Summer 2004 • Vol. 3 No. 3
COUPLES IN THE U.S. USED TO MARRY EARLY, OFTEN AND INFORMALLY By Cynthia Crossen In a Connecticut village in the 17th century, an unmarried couple moved in together. One day, while out for a stroll, they ran into the local magistrate. “John Rogers,” the magistrate said, “do you persist in calling this woman your wife?” “Yes, I do.” “And Mary, do you really wish this old man to be your husband?” “Indeed I do.” “Then by the laws of God and this commonwealth, I pronounce you man and wife . . . “ Although probably apocryphal, this story reflects the state of marriage in early America: no license, witness, ceremony, often not even a magistrate. Some couples wanted a blessing from church or state, but common-law marriages, men and women behaving as spouses without a formal contract, were both legal and respectable. An 1843 Indiana marriage law stated, “No particular form of ceremony shall be necessary, except that the parties shall declare . . . that they take each other as husband and wife.” Early American settlers adapted traditions imported from England to life on the wideopen plains. A man and woman may have committed themselves to lifelong devotion months, even years, before a circuit judge or preacher happened along. Many couples
didn’t wait. In the early Chesapeake region, roughly a third of brides were pregnant. Females were marriageable at the age of 12, males at 15. But in Hempstead Harbor, N.Y., in 1838, Edward Tappan, 15 years old, married Harriet Allen, who had just celebrated her 11th birthday. In Green Hollow, Maine, in 1828, a Mr. Williams, age 87, wed Polly Candle, 14. After marrying, most couples had a powerful incentive to sustain their connubial enterprise: The labor of both was crucial to their survival. Further cementing the bond, by law a wife’s personal property belonged to her husband; if she left him, she took nothing. Even so, some early settlers, both women and men, sought divorces. But death, not strife, ended most marriages. In the 17th century, one of the spouses, usually the woman, was likely to be dead in seven years. By the 19th century, state legislators were realizing that people who married themselves could — and would — also divorce themselves, leaving a trail of destitution. Lawmakers passed a hodgepodge of bills setting the terms of the marriage contract. In most states, commonlaw marriage was gradually abolished. Before Americans could marry, they had to ask the government’s permission. Thirty states prohibited people with physical or mental disabilities — epileptics or the “feeble-minded, idiotic, imbecilic or insane” — from marrying. (In many states, women over 45 were exempted from this
Family Mediation Quarterly
rule.) Four states disqualified paupers or inmates in public institutions for the indigent. Washington and North Dakota didn’t issue marriage licenses to people suffering from advanced tuberculosis.
so often contested — that an exasperated U.S. Supreme Court justice wrote, “If there is one thing the people are entitled to expect from their lawmakers, it’s rules that will enable them to tell whether they are married, and if so, to whom.”
Most states banned interracial marriage; white An exasperated U.S. Supreme Court citizens of Florida could justice wrote, “If there is one thing not marry anyone of “oneeighth or more Negro the people are entitled to expect blood.” California’s white residents couldn’t legally from their lawmakers, it’s rules that marry “a Negro, mulatto, will enable them to tell whether they Mongolian or member of are married, and if so, to whom.” the Malay race.” Nevada’s racial restrictions were all-inclusive — a white man or woman could not marry “a Not surprisingly, couples often fled to person of the black, brown, yellow or red states with the most lenient divorce rules. races.” In Mississippi, the penalty for In the 19th century, Indiana was a favorite. Since then, except for a few brief periods in interracial marriage was life in prison. the 20th century, America’s divorce rate Slaves could not legally marry. How, has steadily marched upward. In 1880, one legislators argued, could property itself in 21 marriages ended in divorce; by 1916, enter into a contract? Nonetheless, slaves one of every nine couples divorced. got married, “till death or distance do you part,” as their preachers sometimes said. Today, a state’s marriage law contains Mormon polygamy, deemed “inhumane,” dozens of technicalities defining who may was finally banned by the Supreme Court and may not marry. In Arizona, for example, first cousins can’t marry unless in 1879. both are at least 65 years old. If one is If marriage law became a thicket of red under 65, however, they may marry “upon tape, divorce was a jungle. In South approval of any superior court judge in the Carolina, divorce was prohibited for any state if proof has been presented to the reason. But in most states, a man or woman judge that one of the cousins is unable to could petition the legislature for divorce — reproduce.” a long, expensive and often futile exercise. Grounds for divorce were narrow and Cynthia Crossen is a writer for the Wall literal: adultery, drunkenness, desertion. Street Journal who may be contacted at Some states didn’t allow the divorced, Cynthia.Crossen@wsj.com. Reprinted by especially the “guilty” ones, to remarry permission of the Wall Street Journal, while their former spouses were alive. Copyright (2004) Dow Jones & Company, Inc. All Rights Reserved Worldwide. State divorce laws were so different — and License number 955521429759. Summer 2004 • Vol. 3 No. 3
HOW JOHN HAYNES, LABOR NEGOTIATOR, BECAME A MAJOR CONTRIBUTOR TO DIVORCE MEDIATION A Reminiscence by Salvatore Ambrosino Editor’s note: John M. Haynes, Ph.D., was a pioneer in the field of family mediation and the first president of the Academy of Family Mediators. He was an author, practitioner, and mediation trainer of world renown. I guess that it was in the late ‘70s, when John Haynes called to make an appointment to see me. At the time, I was the Executive Director of Family Service Association of Nassau County, a non-profit agency with a variety of programs to help families with emotional and social problems. I had met John at community meetings and was aware of his reputation as an effective and respected union leader. I knew that he had become a teacher at the Stoney Brook School of Social Work and was curious about the purpose of the meeting. He got to the point quickly. John wondered how he could use his skills as a labor negotiator to learn how to do divorce mediation. I was most intrigued, and suggested that we team him with an experienced, professionally trained, social worker. We set up a period of time for sharing concepts and creating a framework for how they could be effectively combined in divorce mediation. Family Service Association announced the availability of the new service and the adventure began. I was surprised and pleased by the quick response of couples seeking divorce mediation. John, and the social He was fun to work with... worker who acted as a consultant, were now positioned to test the and his eagerness and method they devised.
commitment were contagious.
The evaluation of the six-month trial indicated their method for divorce mediation was most effective. John was appointed Director of the project and operated the program parttime for about three years. He trained a social worker to replace him. A short time later, I received a copy of a book on divorce mediation written by Dr. John Haynes with a warm hand-written dedication to me on the first page. That book was John’s doctoral dissertation. That is the last I heard from my friend. What I did hear about, was the enormous impact he made on the field of divorce mediation. He devoted many years to countless seminars, training psychologists, social workers, and lawyers to be divorce mediators. He was also a prominent leader in national organizations promoting the field of divorce mediation.
Family Mediation Quarterly
I learned about his death some years ago with sadness. I will always remember him. He was fun to work with; he so enjoyed the challenge of the task, and his eagerness and commitment were contagious. Salvatore Ambrosino, Ed.D., retired 6 years ago, after 36 years as the Executive Director of the Family Service Association of Nassau County, NY; a multiservice agency that earned a national reputation for its innovative services. Six of the agency’s 25 programs that focused on critical family issues have been replicated in communities across the country, as well as in some foreign countries.
Breathing New Life...continued from page 6
personal growth in addition to its value as a resource for solving immediate conflict, it is hard to talk about mediation as a management tool. It goes against the grain. For many years, I’ve rejected the notion that mediation in the courts is about efficiency. Or at least, I haven’t been willing to talk about efficiency without an emphasis on that other “real” value of mediation . Why am I suddenly ready to focus on the practical? Because we have been unsuccessful so far in making every court in Massachusetts “multidoor,” in offering a full menu of dispute resolution services from conciliation through trial. Because in our own Department, we have, in over ten years, been unable to mount any sustained mediation program in any family court. Because right now, change is in the air, and it could include mediation. Because we should miss no opportunity. Because I still trust that, if the most mundane value of mediation gets it through the door, its highest value will be perceived over time.
So this article becomes an invitation: Please join us in the creative planning efforts afoot in Massachusetts. Do you have a project in mind for the court you serve or the dispute resolution program you work with? Can you think of ways to assist court personnel and judges in their transition into the new management systems? Have you worked with special mediation models that would meet the particular needs of the self-represented litigants? Are we missing important pieces in our analysis of the Massachusetts court experience with ADR? You may convey your thoughts to Christine Yurgelun at the Probate and Family Court Administrative Office, <firstname.lastname@example.org>. All new ideas are welcome.
Hon. Gail L. Perlman is First Justice of the Hampshire Probate and Family Court and a past President of MCFM. She can be contacted at email@example.com.
Summer 2004 • Vol. 3 No. 3
UPHEAVALS DO END The Lasting Benefits of Divorce Mediation By Lisa Blout & William L. Blout There are things we, Bill and Lisa, have shared over the past twenty-five year of not being married — our two children and our love for them, has been first, of course. But high on our list is an abiding admiration for John Fiske, a most artful practitioner of divorce mediation, and the mediation process that saved (preserved?) our parenting relationship. This shared perception has come to light only as Bill has decided to become a mediator himself and suggested to Lisa that we co-write an article on our experience. We began to tell each other John Fiske stories, or more properly, reflections on our own divorce mediation experience. It occurred to us that our ability to navigate the rough seas of parenthood, to continue the parenting relationship despite our separate lives, had its seed in that mediation experience. How has it had such a lasting effect? Twenty-three years ago, in the early dawn of the phenomenon called “divorce mediation,” we came to John’s office, almost on our knees. On his door was a sign, primitively scratched onto a piece of discarded wood, that said, “Upheavals do end.” Lisa, reading this, was acutely mistrustful and disbelieving. Bill was too whipped to notice it. For the 18 months, we had both been beaten down by a legaljudicial system that takes human beings, their feelings and principles, and grinds them up like so much hamburger. So what does it feel like being a couple in
the process of learning how to live separate lives? This is what practitioners — lawyers and therapists alike — need to be in touch with. People who are divorcing are in a state of shock. When we got married, we did not take our vows casually; we thought it was a commitment to last our whole lives. But we found ourselves in a situation where we could not continue to live together, could not stay married. And certainly, this is the other person’s fault. Our lawyers may not have said so directly, but they not only acted as if that were true; they built “legal strategies” that were based on making the other person look bad or to feel as threatened as possible. So each of us were fearful, even terrified about what the future held, had no experience with the legal system and were encouraged to distrust one another in every way. When Lisa told her attorney that some legal maneuver was unnecessary because Bill wouldn’t withhold financial support, she said, “Yeah, but his lawyer will tell him to do that; I would, if I were his lawyer, and he should do it” And the result was more fear and more distrust, not because we wanted to behave badly, but because these are key ingredients of the games in the divorce coliseum. This is not a good basis for the process of negotiating the elements and dimensions of separate lives and it is perfectly wretched as the foundation of a new and much more complicated parenting relationship. At this point, by some miracle, we were each able
Family Mediation Quarterly
to see that and to share only one simple thought: Neither of us wanted it that way. In desperation, we tried mediation.
and that it was a desirable outcome, in and of itself. He also gave us the tools for “giving and getting,” and the ability to shift perspective to see a negotiation as having the potential for being a “win-win”
So what did John Fiske do that got us through the painful parting Our ability to navigate the rough of the ways and helped us endure the long rocky road seas of parenthood, to continue the of parenting? There are three parenting relationship despite our simple, powerful operating principles that he offered us: separate lives, had its seed in that
• Trust • Empowerment • Respect John Fiske did not exhort us to act in accordance with these principles; we doubt that he ever used any of the three words as he told us how mediation worked. Instead he modeled behavior, he coached us and he taught us how to use some new skills. Trust: It is really difficult to trust the person you are divorcing, regardless of the circumstances that led to the separation. “Irretrievable breakdown” is a good descriptive phrase. John did not ask or require us to trust each other directly. Instead, he asked us to trust him. In doing so, he held trust “in trust” for us, until we could trust each other more. If one of us were to say, “I don’t trust him/her,” John would say, “I do,” and we could believe it because we trusted him. This “trust system” opened the door for us to get through all the hard work and really come to believe that upheavals do end. Empowerment: John reminded us that we were good people, that it was within our power to behave well toward one another
situation. This had something of the feeling of a big game and it was, in a way, with specific rules. John taught us the following principles and rules: • 95% of the issues get settled simply by mutual agreement and without contention; the remaining 5% are usually about material possessions that have more emotional than monetary value. • It’s okay to really feel strongly about something. • Don’t present yourself as feeling really strongly about something if you don’t. Choose your “stake in the ground” carefully. • There will always be something that will be difficult to agree on and we will probably both be unhappy about the outcome, but it will be only one item or issue and we will be successful on all the other, much more important issues. John illustrated this last point to us through the story of the Chinese porcelain dogs.
Summer 2004 • Vol. 3 No. 3
Continued on next page
These were valuable matched “objets d’art.” Neither of the divorcing couple could relinquish them to the other, nor did they want to split them up, as logic and common sense would dictate. They had to, eventually, and we found ourselves chuckling over their silliness.
We both remember the joyful, final “celebration lunch” with John. That moment marked a new beginning, moving down a path towards much more hopeful terrain.
great deal of trust both in him and in the mediation Mediation enabled us to share both process and only enough good and bad times with respect trust in one another to get and trust that the other would do through the hard parts. He empowered us to behave the right thing, or at least would try. well and to see ourselves, not as victims of each other, but as co- Aunt Lil’s Victorian beaded bags. “What participants in a helpful process, as parents beaded bags?” says Bill. who shared children, whose common Lisa Blout, MA has had over 20 ground was our love for them. He reminded years in human services and us that, as painful as this ending was, there education in government and 8 were things about one another that we years of experience as a chose, once upon a time, that didn’t consultant in health care and related fields. evaporate, nor did our children disappear, She currently operates an independent in the wake of the divorce. consulting practice focusing on community-based primary health care. So what happened to the copper ice bucket? Bill got it, although we still can’t William L. Blout, LICSW remember what all the contention was recently opened Lexington about. He dug it out of a cabinet recently to Mediation Associates, a divorce see if it would prompt memories — no and family mediation practice. such luck. We discussed putting a little Bill has been adolescent and family plaque on it and giving it to John to thank therapist for over 25 years, and is the him for setting us on the right road, but Bill President and founder of HelpNet, Inc. doesn’t feel quite ready to give it up, www.HelpPRO.com, a mental health thinking it might be a nice planter. Lisa is sure that whatever he decides to do will be service finder. He can be reached at 781the right thing. After all, she did get his 862-1166 or at www.agreementworks.com.
Hopeful, indeed! Now we watch each other, with a certain delight, grandparenting our first grandchild. Bill has tried to use hockey stick tape to affix the baby’s diaper tabs and Lisa often can’t remember how many naps he is supposed to have or when they are to occur, but we are learning — and admiring each other’s willingness to do just that.
"The notion behind divorce mediation is simple: anything is better than hiring a lawyer to bludgeon an ex-spouse."
In a nutshell, John asked us to act respectfully toward one another, to place a
NEWSWEEK, January 10, 1983
care about.” And, of course, that is exactly what happened, for both of us as we parented our children over the next two decades.
In the end, we both came away with what we thought we wanted or with the realization that we didn’t really care about Our one item was a wedding gift - a copper those things, after all. Most of all, we each ice bucket. We learned only recently that came away with the belief that we had John used our contention over this item as worked hard and done a good job. Bill an example for other couples who came says, for him, what was most important after us. We couldn’t remember what the about the mediation experience is that it set dispute was about. the tone for our parenting for the next 20 years. Our positive experience allowed us Respect: This may have been the seed that to focus on what was most precious to us got planted to enable us to get through the our relationship with our children and, as growing up of our children and be friends parents, to each other. Mediation enabled today. When John said that he trusted one us to share both good and bad times with or the other of us, he invariably reminded respect and trust that the other would do the right thing, or at We had both been beaten down by a least would try.
legal-judicial system that takes human beings, their feelings and principles, and grinds them up like so much hamburger. us that we decided to become parents together and that this decision was based on some perception of one another as good or capable. He also reminded us that we really did trust the other to be a good parent (even when we weren’t sure that it was true). He encouraged us to figure out solutions to problems that were good for the children, and therefore, good for us in our roles as parents. When Bill protested that he didn’t want to maintain a level of financial support if Lisa earned more income over time, John said to him, “What do you think she’s going to spend it on?” He answered his own question: “The children, of course, that that’s what you
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Summer 2004 • Vol. 3 No. 3
THE LITERAL LIFE
Commentary on Upheavals Do End, by John A. Fiske Reading Upheavals Do End reminded me of another form of unique Blout feedback about mediating with me, in addition to their running commentary during the mediation itself. These observations were also instructive for me in this early phase of developing a mediation philosophy and approach.
MASSACHUSETTS COUNCIL ON FAMILY MEDIATION 3RD ANNUAL, ONE-DAY INSTITUTE October 15th, 8:30 AM - 4:45 PM Wellesley Community Center
They talked to the Phoenix. The Phoenix had called me to talk about divorce mediation and I sent the reporter to Bill and Lisa, who had just finished the process and said they would be willing to talk about it with others. About a month later they sent me the resulting article about divorce mediation.
KEYNOTE SPEAKERS & TOPICS: Planning for Shared Parenting: A Guide for Parents Living Apart Attorney Rita S. Pollak & Dr. Sara McLeod
What I most remember about that article was Lisa saying she learned the importance of being careful what she said. She went on to tell the reporter that during the final phase of the mediation they were arguing over the ice bucket and Lisa said, “I want the ice bucket.” I turned to Bill and said, (not having yet perfected my reframing skills), “She wants the ice bucket.” Lisa told the reporter about this defining moment, when she said to herself something like, “Good grief, this guy takes me seriously. I better be careful what I say next.” How many husbands have since suffered through hearing me turn to their wives, or viceversa, and say, “She wants alimony for life,” or, “He doesn’t want the dining room set.” “At $400 an hour in here, you don’t have time to say anything you don’t mean.” The literal life may not always work, but it sure makes things simpler for me. Thank you, Bill and Lisa, for making good use of the mediation process and teaching fellow mediators something more about it along the way. John A. Fiske (circa 1981) is a founding member, past president and director emeritus of MCFM. He is also a partner at Healy, Fiske, Woodbury & Richmond, a Cambridge firm concentrating in family law and mediation. John can be contacted at (617) 354-7133, or by email at firstname.lastname@example.org.
"This year more children will live through their parents' bankruptcy than through their parents' divorce."
Recognizing & Addressing Addictions in Mediation Dr. Harry Somers CONFIRMED WORKSHOPS & FACULTY: Multi-Party Family Disputes: A Roll Play Workshop John A. Fiske, Esq. Early Retirement? Late Retirement? No retirement? What are the rules for alimony? Howard I. Goldstein, Esq. & Sheldon Ganz, Esq. How to Tell How the Kids Are Doing Susan Falkoff, LICSW Estate Planning Issues & Family Law Allison M. McCarthy, Esq. Difficult Mediations Lynn Cooper, Ed.D., Kathy Townsend, Esq. & Les Wallerstein, Esq. Recent Changes in Family Law Fern L. Frolin, Esq. COST: $130 ($165 non-members) if received by October 1st $150 ($185 non-members) if after October 1st
LUNCH & WRITTEN MATERIALS INCLUDED SPACE LIMITED TO 90 REGISTRANTS TO REGISTER: CALL (781) 449-4430 Visit www.mcfm.org for faculty / topic updates & driving directions
Howard Dean Continued on next page Family Mediation Quarterly
Summer 2004 • Vol. 3 No. 3
24 STRATEGIES FOR THIRD PARTIES: WHEN DIVERSITY COMES TO THE TABLE Featuring: Leah Wing, Ed.D.
October 12th: Support for Spouse and Children Effect of parenting arrangements on child support, alimony and child support, the Child Support Guidelines, medical expenses, education, life insurance, the marital home.
September 9th, 5-7:30 PM Suffolk Law School, Boston
October 19th: Dividing the Marital Property Discovery and fraud, gifts, inheritances, relation to alimony, tax consequences, future planning, pensions, 40l(k) plans.
How do we face and engage with diversity during a third party intervention in ways that are respectful and empowering to the parties? This brief workshop-presentation will suggest several strategies and frameworks useful for third parties when cultural, ethnic and gender differences “come to the table.”
October 26th: Here Comes the Judge A probate & family court judge, a family service officer, and an attorney will discuss the divorce process.
For more information call Blair Trippe at (781) 424-9586 or register online at: www.neacr.org
TIME: 7:00 to 9:00 P.M. PLACE: West Suburban Chamber of Commerce 84 South Street, Waltham, MA Fee: $10.00 per session, or $40.00 for all five sessions. Fee is waivable based on need.
ONE-DAY INTRODUCTION TO MEDIATION SKILLS September 14th, 9:00 AM - 5:00 PM Boston Law Collaborative, LLC 99 Summer Street, Suite 1600 Boston, MA 02110 This 8-hour, introductory course will provide you with an overview of mediation and hands-on experience to help you decide whether to pursue further mediation training. This program will also be useful for people who do not wish to become mediators but would like to incorporate mediation skills into their life and work. Space is limited to 20 participants. Registration received 30 days or more prior to the program date: $200, thereafter: $250. For more information please contact Israela Brill-Cass at 617-439-4700, or IBC@BostonLawCollaborative.com
THE DIVORCE CENTER INC. PRESENTS “MASSACHUSETTS DIVORCE IN A NUTSHELL” September 28th: Getting a Divorce in Massachusetts Grounds, separation agreements, merger & survival, temporary orders, the c. 208, §34 factors, litigation, mediation, collaboration, choosing the right professionals. October 5th: Custody and Visitation Legal and physical custody, custody disputes, role of a Guardian ad Litem; relocation issues, parenting coordinator, parent education program.
For more information call Diane W. Spears at (617) 227-9713, or visit www.divorcenter.org
CHANGING THE CULTURE OF DIVORCE A Training in the Use of Healing Rituals of Divorce Trainer: Marilyn Beloff, Ph.D. October 21st, 9:00 AM - 5:00 PM Boston Law Collaborative, LLC 99 Summer Street, Suite 1600 Boston, MA 02110 This training will give mediators, therapists, lawyers and members of the clergy who work with divorcing couples the tools to develop rituals that mark the transition from marriage to divorce, while at the same time helping to heal the wounds that led to divorce. Participants will come to understand how ritual can provide a safe space for divorcing individuals to face the death of their marriages, mourn its losses, restructure families, make vows for continued loving parenting, and celebrate new beginnings. This training is based on research by Dr. Beloff about what we can learn from the ancient, archetypal Jewish ritual of divorce, the “Get.” Space is limited to 24 participants. Tuition is $300. For more information please contact Israela Brill-Cass at 617-439-4700, or IBC@BostonLawCollaborative.com Continued on next page
Family Mediation Quarterly
Summer 2004 • Vol. 3 No. 3
26 INTERNATIONAL ACADEMY OF COLLABORATIVE PROFESSIONALS 5th Annual Networking Forum: Paradigms for Peacemaking October 22nd - 24th Featuring Prof. Robert Mnookin Director, The Harvard Negotiation Project
Each year the International Academy of Collaborative Professionals (IACP) presents a three day conference called a Networking Forum. This year the forum will be hosted by the Massachusetts Collaborative Law Council. The movement to resolve disputes collaboratively is growing beyond the field of law, and the IACP seeks to nurture that movement. Westin Copley Place Hotel, Boston, MA For more information please call Stuart B. Robbins at 617-423-0022 or Rita S. Pollak at 617-566-2300 or register online at www.collabgroup.com
FAMILY MATTERS A Symposium on Preventing and Resolving Family & Family-Business Disputes Presented by the ABA Section of Dispute Resolution October 22nd, 8:30 AM - 5:00 PM Sheraton Boston Hotel, Cost: $ 200 Professionals who work with families and family-businesses need sophisticated dispute resolution tools – including mediation, arbitration, and other ADR methods – to help their clients weather change and thrive. The purpose of this symposium is to help such professionals acquire and sharpen those tools. For more information please call, 202-6621680, or email: email@example.com
THE NEW HAMPSHIRE CONFLICT RESOLUTION ASSOCIATION 2004 Annual Conference THE EVOLVING ADR PRACTITIONER Skills, Strategies & Self-Awareness November 5-6, 2004 The Mountain Club at Loon Resort & Conference Center Lincoln, NH - 1 hour from Concord, NH and 2 hours from Boston
This year’s NHCRA conference will focus on three learning themes: (i) specific skills and tools, (ii) a consciousness and deeper understanding of the menu of conflict management styles, approaches and processes, and (iii) the individual practitioner’s awareness of her own personal qualities (psychological, intellectual, spiritual). The conference expects to gather ADR practitioners from New Hampshire and neighboring states. David A. Hoffman, an attorney, mediator and arbitrator at the Boston Law Collaborative, LLC, will be the plenary speaker. For more information and reservations please contact Conference Co-Chair Ellen Dinerstein at firstname.lastname@example.org.
ADVANCED MEDIATION TRAINING Faculty: David A. Hoffman, Dina Beach Lynch & Charles Doran November 9 - 10, 8:30 AM - 5:00 PM Boston Law Collaborative, LLC 99 Summer Street, Suite 1600 Boston, MA 02110 This program will provide 16 hours of training for mediators who have completed a basic (30 hour) training in mediation, and will include: instruction in negotiation issues, economic dimensions of conflict, ethical standards for mediators and settlement issues. Each participant will have at least two opportunities to serve as a mediator in a role play observed and critiqued by an experienced mediator/role play coach. There will be a videotaped demonstration of experienced mediators and a critique of their styles. A notebook of resources and articles will be provided, along with certificate of completion. Space is limited to 24 participants. Registration received by September 20: $700, thereafter: $800. For more information please contact Israela Brill-Cass at 617-439-4700, or IBC@BostonLawCollaborative.com
New England Chapter Association For Conflict Resolution 2004 ANNUAL CONFERENCE & MASTER CLASS Who Are You? The Dynamics of Influence and Reflection in ADR Pre-Conference Master Class - Mindfulness in Mediation and Law Dealing with Stress and Enhancing Satisfaction, Understanding and Performance November 12th, 1:00 PM - 5:00 PM Boston, MA Continued on next page
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28 Conference - Decision Making in Mediation: The New New Grid System November 13th, 8:00 AM - 5:00 PM Tyngsboro, MA
MASSACHUSETTS DOMESTIC RELATIONS
Professor Riskin, a mediator and creator of the Riskin Grid and author of “The New New Riskin Grid” is a professor of law at the University of Missouri-Columbia School of Law.
Editors Note: Massachusetts Lawyers Weekly publishes case synopses of the most important court decisions in major areas of the law twice annually. Following are synopses of four major family law opinions from January to June, 2004.
Most Important Opinions from Massachusetts Lawyers Weekly
For more information please call 617-536-3227 or email NEACR@NEACR.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.
CORRECTION In the Spring 2004 edition of the Family Mediation Quarterly (Vol. 3, No. 2), there was an artithmetic error in the second to the last paragraph of John W. Heister's article Good Mediation Needs Diverse Skills: A Response to Collaborative Law. That error left the impression that there was no difference in cost between a mediated divorce and one negotiated through collaborative law. Below is the paragraph as intended, with the correction highlighted. "Finally, collaborative law is expensive. If each spouse meets individually with his or her collaborative attorney for two hours in preparation for the "four way" and then meets for two hours in the "four way" and the legal fees for each attorney are $200 per hour (average in Rochester, NY), the couple has spent $1,600. Many couples in my office, on our sliding fee scale, complete the mediation for $1,200. Extrapolate the hourly figure of the two attorneys out over a ten or twenty (or thirty?) hour collaboration and the excess expense becomes apparent."
Civil Union - Dissolution Pursuant to the Probate & Family Court’s equity jurisdiction, dissolution may be ordered of a civil union which a Massachusetts plaintiff entered into in Vermont with a defendant Arkansas resident, where (1) the plaintiff has petitioned for such relief and (2) uncontested evidence has been presented of an irretrievable breakdown of the parties’ union, a Probate & Family Court judge concludes. Salucco v. Alldredge (Lawyers Weekly No. 15-003-04) (9 pages).
Divorce - Gambling - Dissipation Of Estate A Probate & Family Court judge committed no abuse of discretion in (1) finding that a divorced defendant incurred $400,000 in gambling losses during his marriage, (2) treating $40,000 of those losses as dissipation of marital assets and (3) ordering the defendant to pay $40,000 to the plaintiff ex-wife to account for that “waste,” says the Supreme Judicial Court. Kittredge v. Kittredge (Lawyers Weekly No. 10-031-04) (19 pages).
Divorce - Jurisdiction - Residency A plaintiff in a divorce action who has not complied with the one-year residency requirement of G.L. c. 208, §5, may, nevertheless, satisfy the alternative jurisdictional requirements of §5, by asserting domicile after a brief period of residence and claiming that the “cause” for the divorce, namely “an irretrievable breakdown of the marriage” under G.L. c. 208, §1B, occurred in Massachusetts, the Supreme Judicial Court rules. Caffyn v. Caffyn (Lawyers Weekly No. 10-075-04) (12 pages).
The FMQ welcomes information about errors. Please email the editor at email@example.com
Divorce - Pension - Future Earnings In a divorce case, a percentage of the husband’s future pension earnings was properly included in the marital estate, the Appeals Court determines. Brower v. Brower (Lawyers Weekly No. 11-100-04) (11 pages).
Family Mediation Quarterly
Summer 2004 • Vol. 3 No. 3
Editorial: Still Good Law Since May 17th, thousands of gay and lesbian couples have celebrated their right to civil marriage in Massachusetts with weddings. Meanwhile, conservatives have continued to marshal their forces to efface Goodridge. So far, all their efforts have failed.
The political and practical The Florida-based, “Liberty Counsel” initiated a law suit in ramifications of Goodridge will federal court claiming that the be unfolding for years to come. Massachusetts Supreme Judicial Court violated the United States Constitution by legalizing same-sex marriage. The plaintiffs argued that the SJC’s redefinition of marriage violated the separation of powers principles under the Massachusetts Constitution, asserting that only the legislature had the authority to define marriage. Due to this alleged violation, the plaintiffs argued that the SJC’s Goodridge decision deprived them of a republican form of government — thus violating their rights under the federal Guarantee Clause of the US Constitution. The District Court rejected these claims. On appeal, the 1st Circuit Court of Appeals upheld the District Court. The appellate decision read, in part: “... The resolution of the same-sex marriage issue by the judicial branch of the Massachusetts Government ... does not plausibly constitute a threat to a republican form of government. Absent such a threat, our federal constitutional system simply does not permit a federal court to intervene in the arrangement of state government under the guise of a federal Guarantee Clause question. Such an intervention would itself threaten federal court interference with the very form of government that the people of Massachusetts have chosen for themselves....” On June 18th, GLAD (Gay & Lesbian Advocates & Defenders) filed suit in a Massachusetts Superior Court on behalf of eight same-sex couples from across New England. (Cote-Whitacre, et al. v. Department of Public Health.) Some couples were denied Massachusetts marriage licenses. Others were married in Massachusetts but now face claims that their marriages are null and void. On July 13th GLAD went to court seeking a preliminary injunction, to block the enforcement of a 1913 law (M.G.L. c. 207, § 11) prohibiting marriages in Massachusetts that would be void in a couple’s home state. The court is expected to rule on the request for a preliminary injunction soon. Regardless of who prevails, it’s likely the court’s decision will be appealed. On July 15th the US Senate voted to reject conservative efforts to amend to the US Constitution by prohibiting same-sex marriage. In another milestone, married lesbian parents from Jamaica Plain became the first samesex couple recognized as parents on their child’s birth certificate. (MetroWest Daily News 7/16/04.) Family Mediation Quarterly
Goodridge remains the single most momentous decision in the recent history of Massachusetts family law. More than marriage, Goodridge redefined the legal structure of family. The political and practical ramifications of Goodridge will be unfolding for years to come. The good news is that it has survived every challenge to date. The bad news is that it will continue to be challenged. As future editorials will re-focus on other issues, readers interested in following Goodridge news should consult the GLAD web site at www.glad.org The opinions expressed in this editorial are those of Les Wallerstein. He can be contacted at (781) 862-1099, or at firstname.lastname@example.org.
HISTORIC ADVERTISEMENT The ad below ran in suburban Boston papers for about three months starting on September 27, 1979. Each ad cost about $80, and each ad produced about one mediation. NB: Same address and telephone, but some partners & all rates have changed! DIVORCE MEDIATION & OTHER FAMILY LAW SERVICES Healy, Lund and Fiske Our firm encourages divorcing couples to use mediation, when possible, to work our property, support and child custody arrange-ments cooperatively. As mediators, we provide guidance and legal information at an hourly fee of $75. The process is less costly and more peaceful than protracted lawsuits. A half hour initial consultation concerning mediation is available without charge during the day and for a nominal charge during evening and early morning hours. We also provide legal representation in connection with divorce matters. Our charge for representing individuals in court or in negotiating agreement is $50 per hour. Regina Healy John A. Fiske
Diane Lund D. Margaret Drury
189 Cambridge Street, Cambridge 354-7113
If anyone has a copy of another “historic” advertisment they are willing to share, please contact email@example.com
Summer 2004 • Vol. 3 No. 3
MCFM NEWS NEW BROCHURES! After more years than anyone remembers, MCFM has completely redesigned a brand new brochure. There will be 5,000 in first printing, and each member will receive 10 copies as soon as the ink is dry. A blank area on the back is provided for members to personalize their brochures, or to address for mailing. Brochues will be made available to Probate & Family Court Judges, and in some libraries and courthouses.
NEXT MEMBER’S MEETING AN IMMIGRATION PRIMER FOR THE MEDIATOR Featuring Monique Kornfeld, Esq. An overview of the issues that surround marriage, divorce, child custody and support when on or both clients are not US citizens.
Members may obtain additional brochures from Dee Fraylick. Call (781) 449-4430, or email: firstname.lastname@example.org
Wednesday, September 29th, 9:00-11:00am Follen Community Church 755 Massachusetts Avenue Lexington, MA 02420 For driving directions visit www.mcfm.org.
Every year Massachusetts Lawyers Weekly devotes an entire section to Alternative Dispute Resolution. In its July 19th issue, the lead article was entitled “Family Lawyers As Mediators,” and MCFM members John A. Fiske and David A. Hoffman were frequently quoted. MCFM was the first organization listed under Helpful Mediation Resources, which also mentioned the availability of the FMQ at MCFM’s web site.
MCFM’s 3rd ANNUAL, ONE-DAY INSTITUTE October 15th, 8:30 AM - 4:45 PM Wellesley Community Center LUNCH & WRITTEN MATERIALS INCLUDED SPACE LIMITED TO 90 REGISTRANTS SEE Page 22 for details
NEXT EXECUTIVE COMMITTEE & BOARD OF DIRECTORS MEETINGS
TO REGISTER: CALL (781) 449-4430 Visit www.mcfm.org for faculty / topic updates & driving directions
Monday, September 20th 5:00 PM: Executive Committee 6:00 PM: Board of Directors In the Office of Debra L. Smith 134 Main Street Watertown, MA 02472 Phone: (617) 924-6728 Email: email@example.com Directions to Deb’s office are available on-line at www.mcfm.org
MEDIATION PEER GROUP MEETINGS
PLEASE EMAIL ANY AGENDA ITEMS FOR CONSIDERATION TO: President Laurie Udell at firstname.lastname@example.org, or to any officer, all of whom are listed in the DIRECTORATE on page 35.
Merrimack Valley Area We are a group of family law mediators who have been meeting (almost) monthly for about three years. The criterion for membership is a desire to learn and share. Meetings are held at 8:15 AM on the last Tuesday of the month at the office of Lynda Robbins, 11 Summer Street, Chelmsford. Please call Lynda at (978) 256-8178 or Karen Levitt at (978) 458-5550 for information and directions. Continued on next page
Family Mediation Quarterly
Summer 2004 • Vol. 3 No. 3
Metro-West Area Due to Janet Weinberger’s recent move to Philadelphia, the Metro-West meeting has relocated to S. Tracy Fischer’s home at 120 Cynthia Road, in Newton Centre. Monthly meetings are (usually) held at 9:15 AM, and are open to all MCFM members. Please call (617) 745-0590 or email <email@example.com> for dates and directions.
FMQs The cost of additional FMQs is $5.00 each for members, and $7.50 each for non-members. Supplies are limited. Please mail requests for additional copies to DeLaurice Fraylick, 23 Parker Road, Needham Heights MA 02494-2001, and enclose a check made payable to MCFM. An archive of all but the most recent edition of the FMQ is also available in PDF on the MCFM web site at www.mcfm.org. This resource offers an expanding trove of meditation materials which is supplemented by a cumulative index of articles to facilitate data retrieval PDF editions of the FMQ can be downloaded and printed on any computer with “Acrobat Reader” software, which is available for free on the internet at www.adobe.com
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 firstname.lastname@example.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.
ETHICAL QUANDARIES New clients have scheduled an initial mediation appointment. On the morning of the first meeting the husband calls the mediator and informs her that he plans to bring his attorney. What is the ethical responsibility of the mediator?
Editor's Note: Questions with ethical dimensions are part of every practicing mediators daily work. Most often, there are many points of view and no correct answers. This column seeks to encourage an ongoing, confidential, conversation about the professional practice of mediation. Please submit your reply to the quandary above and/or any ethical question that you've encountered to <email@example.com>. All questions and replies will be published in complete anonymity.
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 firstname.lastname@example.org. MCFM’s web site: www.mcfm.org
Family Mediation Quarterly
Summer 2004 • Vol. 3 No. 3
Directorate MASSACHUSETTS COUNCIL ON FAMILY MEDIATION, INC.
23 Parker Road, Needham Heights, MA 02494-2001 Local Telephone & Fax: (781) 449-4430 email: email@example.com web site: www.mcfm.org
Family Mediation Quarterly
TOLL FREE: 1-877-777-4430 OFFICERS President
email: firstname.lastname@example.org Laurie S. Udell, 399 Chestnut Street, Needham, MA 02492-2426, (781) 449-3355, email@example.com Kathleen A. Townsend, Divorce Mediation Group, Inc., 1441 Main Street, Springfield, MA 01103, (413) 733-4444, firstname.lastname@example.org
Marion Lee Wasserman, 199 Wells Avenue, Suite 201, Newton, MA 02459(781) 449-4815, email@example.com
Mark I. Zarrow, Lian, Zarrow, Eynon & Shea, 34 Mechanic Street, Worcester, MA 01608, (508) 799-4461, firstname.lastname@example.org
Debra L. Smith, 134 Main Street, Watertown, MA 02472 (617) 924-6728, email@example.com
Lynn K. Cooper, Robert V. Deiana, Jonathan E. Fields, Rachel B. Goldman, Howard I. Goldstein, Mary T. Johnston, Michael L. Leshin, Karen J. Levitt, Harry E. Manasewich, Steven Nisenbaum, David River, Lynda J. Robbins, Patricia A. Shea, Barry L. Shelton & Les Wallerstein
DIRECTORS EMERITUS ADMINISTRATOR
Editor: Les Wallerstein 1620 Massachusetts Avenue Lexington, MA 02420-3802 Telephone: (781) 862-1099 Fax: (781) 861-8797
John A. Fiske, Janet B. Weinberger, Jerome Weinstein & Barbara N. White DeLaurice Fraylick, 23 Parker Road, Needham Heights, MA 02494-2001, (781) 449-4430, email: firstname.lastname@example.org
Family Mediation Quarterly
The FMQ is dedicated to family mediators working with traditional and non-traditional families. All family mediators share common interests and concerns. The FMQ will provide a forum to explore that common ground. The FMQ intends to be a journal of practical use to family mediators. As mediation is designed to resolve conflicts, the FMQ will not shy away from controversy. The FMQ welcomes the broadest spectrum of diverse opinions that effect the practice of family mediation. The contents of the FMQ are published at the discretion of the editor, in consultation with the MCFM Board of Directors. The FMQ does not necessarily express the views of the MCFM unless specifically stated. The FMQ is mailed to all MCFM members. Copies are provided to all Probate & Family Court Judges, all local Dispute Resolution Coordinators, all Family Service Officers and all law school libraries in Massachusetts. An archive of all previous editions of the FMQ are available on-line in PDF at <www.mcfm.org>, accompanied by a cumulative index of articles to facilitate data retrieval. MCFM members may submit notices of mediation-related events for free publication. Complimentary publication of notices from mediation-related organizations is available on a reciprocal basis. Commercial advertising is also available. Please submit all contributions for the FMQ to the editor, either by email or computer disk. Submissions may be edited for clarity and length, and must scrupulously safeguard client confidentiality. The following deadlines for all submissions will be observed: Summer- July 15th Fall- October 15th Winter-January 15th Spring- April 15th All MCFM members and friends of family mediation are encouraged to contribute to the FMQ. Every mediator has stories to tell and skills to teach. Please share yours.
Summer 2004 â€˘ Vol. 3 No. 3