Thursday, September 1, 2016

Does Settlement Counsel Help or Hurt Clients?

Guest post from Rackham Karlsson.*

A man goes to the doctor with chest pain. The doctor finds a small growth next to his heart. The growth can be removed, but it’s a very delicate operation due to the location. The doctor offers the man the choice of two surgeons:

  • Surgeon A is highly specialized. She has extensive experience with this type of surgery and has a tremendous success rate. “However,” the surgeon says, “Because I’ve chosen to focus my work on this type of surgery, there is a chance that we would want to bring in another surgeon if something goes wrong during the procedure. I don’t expect it, but it could happen.”
  • Surgeon B is a generalist, a Swiss Army knife of surgeons. He has some experience with this type of surgery, but it’s not the focus of his practice. “I can handle any situation that comes up during the surgery,” he boasts. “I wouldn’t want you to limit your options and have to change surgeons in the middle of the procedure.”

Which surgeon would you choose?

Surgeon A, right? It’s a no-brainer.

If that's true, then why do so many family lawyers dislike the concept of settlement counsel — an attorney who focuses exclusively on negotiations and bows out of the case if litigation is necessary? Doesn't the same logic apply?

Let’s give surgeon B the benefit of a doubt. He cares about his patients. He wants them to be healthy, and he truly believes that by personally offering the full range of surgical procedures, he is fulfilling his Hippocratic oath. The equivalent in law is the duty of zealous advocacy. Lawyers often believe that they can’t advocate zealously for their clients if they restrict the scope of their representation to settlement counsel and exclude themselves from litigating.

There are two problems with this view of “zealous advocacy:"

First, a lawyer who anticipates litigation is necessarily compelled to view the case in adversarial terms, always thinking about gathering facts and building a theory of the case that paints one party as the inevitable ‘winner’ and the other as the inevitable ‘loser.’

The theory of the case is a powerful, but extremely blunt, tool in the litigator’s arsenal: “Settle on my terms or I’ll have a judge do it.” This approach is simply incompatible with what it takes to reach meaningful settlement: building bridges, finding shared interests, and forming consensus. Do we really expect a lawyer to probe a party’s most private thoughts in a deposition one day, and then engage in principled negotiations with that same party the next day? Never mind whether the attorney thinks it can be done — how can we expect the party to ever trust that attorney in negotiations?

It’s no wonder that so many cases settle on the eve of trial: settlement becomes a last resort, rather than a mutual accomplishment.

Second, viewing a case through the lens of litigation encourages lawyers and their clients to focus on measurable outcomes — asset division, support amounts, hours spent with their children, etc. — because those are the outcomes a judge can determine.

But in many cases, particularly family law cases, there are complex interests involved that really aren’t measurable in that sense. Honoring what remains of a deep friendship. Forming a healthy co-parenting relationship. Being able to tell their children that it was a dignified process. Avoiding the embarrassment of an adversarial hearing. These are almost always shared goals of divorcing spouses, and yet those shared goals are consistently undermined by a litigation mindset. We all know what happens to parents who spend months (or years) working with their lawyers to paint each other in the worst possible light…

What does Settlement Counsel do?

Now, let’s consider what settlement counsel can accomplish, by explicitly and transparently announcing that he or she won’t litigate the case:

  • Settlement counsel can focus on principled negotiations without being pulled in the opposite direction of building an adversarial case against the other party.
  • Settlement counsel can get to know the other party in a setting that’s non-threatening and fosters trust, allowing both parties to explore their respective interests and work toward shared understandings — opening up options for creative, mutually agreeable solutions.
  • Settlement counsel can explore the clients’ intangible interests, being a “zealous advocate” for those interests and not just the ones that are within a judge’s limited authority.
  • Settlement counsel can assure the client that disagreements will be negotiated by the most respectful means possible, and the case will be transferred to a litigator only if absolutely necessary. (There could even be an understanding that a particular litigator has been identified if the need arises.)  
Can adding Settlement Counsel actually subtract cost?

Finally, let’s consider the financial benefits to the client of using settlement counsel. Litigation isn’t just expensive — it’s EXPENSIVE, all caps. And for what? The vast majority of cases settle short of trial. Do we really need to put the clients through the wringer, just so they can ultimately settle — often in a desperate attempt to stem the financial hemorrhaging caused by litigation?

There are times when litigation makes sense. A party might refuse to negotiate, or the dynamic between the parties might prevent meaningful negotiation. In some cases, it might even be necessary to use the high cost of litigation as a blunt stick to encourage settlement. But too often, the people who benefit most from litigation are the attorneys. Whatever their best intentions might be, we can’t ignore that financial incentive. Clients are certainly aware it; they know that we are keepers of the legal process, and yet we benefit the most when that process is least efficient.

Going back to the surgeons, suppose you had initially chosen surgeon B. Would it change your mind to know that surgeon B gets paid by the hour, so the more complicated the surgery, the more he gets paid? It’s not to say that the surgeon intends to hurt the patient, but what is the surgeon’s incentive to focus on the skills needed to avoid complications more consistently? The disincentive might be entirely subconscious, but it can’t be ignored.

For some lawyers, the choice is very conscious: they don’t want to give up litigation because they need the income. But there is no shortage of cases out there, and lawyers can make a very good living without litigating. In fact, we can often attract more business by modeling ourselves after surgeon B and offering highly focused services that are appealing to clients. Some of us are living proof of that, having sworn off litigation completely and focusing our efforts on being the most effective mediators, collaborative attorneys, and settlement attorneys we can be. It’s not only financially feasible, but it’s what most clients actually want!

Consider, in parting, these words of Abraham Lincoln:

"Discourage litigation. Persuade your neighbors to compromise whenever you can. 
As a peacemaker the lawyer has superior opportunity of being a good man. 
There will still be business enough."

That is exactly what settlement counsel does.

*Rackham Karlsson is a family law mediator and collaborative attorney based in Cambridge, Massachusetts. His blog and podcast series, The ADR Initiative, focuses on building profitable alternative dispute resolution businesses.

Monday, August 22, 2016

Should Parents (and especially Divorced Parents) discuss Sexting with their Teen Children? - Infographic

When parents separate or divorce, children are affected in many different ways.  If the parents fail to effectively communicate then children may not be properly prepared for the challenges that teens face in relationships.  The ubiquitous use of cell phones by teenagers has some benefits but also many dangers.

Sexting is one of the potential dangers that face all teens, but which teens of divorced and separated parents may be more susceptible to.  Parents should discuss the personal and legal ramifications of sexting with their children and this is just one of many conversations that divorced and separated parents should coordinate so that the information received by the child is consistent.

Below is an infographic with some of the information that parents and children should know about sexting and the consequences.

Permanent Picture: Teen Sexting (And What Parents Should Do About It) (via Intella Blog)

Permanent Picture: Teen Sexting (And What Parents Should Do About It)

Above is an infographic provided by Intella Blog.  Skylark Law & Mediation, P.C. provides this for informational purposes only. We do not endorse nor claim endorsement from Intella or Vound Software. Skylark Law & Mediation, P.C. is not responsible for any information contained therein, unless indicated specifically on that site.

Wednesday, August 10, 2016

2016 U.S. Presidential Platforms - What do they say about Families?

The 2016 U.S. Presidential election has many talking points and topics that engender strong reactions.  The significant difference between the various presidential candidates and their platforms explains some of the vehemence with which many defend or attack the 2016 candidates.  Since this blog focuses primarily on the impact of the law on families and family conflict, we will concentrate on only one portion of the presidential platforms:

How does each 2016 U.S. Presidential Platform address the American family?

These platforms are presented in no particular order and we do not endorse any of the following platform positions.  We are providing them specifically so you can decide for yourselves (and we encourage all eligible voters to vote in the election):

2016 Republican Party Platform Word Cloud
The 2016 Republican Party Platform mentions the words "family" or "families" 72 times, the words "child" or "children" 50 times, the word "marriage" 19 times.  The Republican party platform never uses the words "gay", "lesbian", "LGBT", or "transgender" despite referencing "traditional marriage" repeatedly.

Below are some of the excerpts from the Republic party platform's discussions relevant to families:

Excerpt in "Defending Marriage Against an Activist Judiciary":
"Traditional marriage and family, based on marriage between one man and one woman, is the foundation for a free society and has for millennia been entrusted with rearing children and instilling cultural values.... We, therefore, support the appointment of justices and judges who respect the constitutional limits on their power and respect the authority of the states to decide such fundamental social questions."
Excerpt in "The Fifth Amendment: Protecting Human Life"
"The Constitution’s guarantee that no one can 'be deprived of life, liberty or property' deliberately echoes the Declaration of Independence’s proclamation that 'all' are 'endowed by their Creator' with the inalienable right to life. Accordingly, we assert the sanctity of human life and affirm that the unborn child has a fundamental right to life which cannot be infringed. We support a human life amendment to the Constitution and legislation to make clear that the Fourteenth Amendment’s protections apply to children before birth... We support the appointment of judges who respect traditional family values and the sanctity of innocent human life. We oppose the non-consensual withholding or withdrawal of care or treatment, including food and water, from individuals with disabilities, newborns, the elderly, or the infirm, just as we oppose euthanasia and assisted suicide."
Excerpt from "Marriage, Family, and Society"
"Foremost among those institutions is the American family. It is the foundation of civil society, and the cornerstone of the family is natural marriage, the union of one man and one woman... Children raised in a two-parent household tend to be physically and emotionally healthier, more likely to do well in school, less likely to use drugs and alcohol, engage in crime or become pregnant outside of marriage. We oppose policies and laws that create a financial incentive for or encourage cohabitation. Moreover, marriage remains the greatest antidote to child poverty..."
"The data and the facts lead to an inescapable conclusion: Every child deserves a married mom and dad... Our laws and our government’s regulations should recognize marriage as the union of one man and one woman and actively promote married family life as the basis of a stable and prosperous society. For that reason, as explained elsewhere in this platform, we do not accept the Supreme Court’s redefinition of marriage and we urge its reversal, whether through judicial reconsideration or a constitutional amendment returning control over marriage to the states. We oppose government discrimination against businesses or entities which decline to sell items or services to individuals for activities that go against their religious views about such activities."
Excerpt from "Choice in Education"
"We renew our call for replacing “family planning” programs for teens with sexual
risk avoidance education that sets abstinence until marriage as the responsible and respected standard of behavior. That approach — the only one always effective against premarital pregnancy and sexually-transmitted disease — empowers teens to achieve optimal health outcomes. We oppose school-based clinics that provide referral or counseling for abortion and contraception and believe that federal funds should not be used in mandatory or universal mental health, psychiatric, or socio-emotional screening programs."
Read the full 2016 Republican Platform here.
2016 Democratic Party Platform Word Cloud
The 2016 Democratic Party Platform mentions the words "family" or "families" 72 times, the words "child" or "children" 66 times, the words "gay", "lesbian", and "LGBT" 29 times, and the word "transgender" 7 times.   The Democratic party platform never uses the word "marriage."

Below are some of the excerpts from the Democratic party platform's discussions relevant to families:

Excerpt from "Supporting Working Families"
"We will fight to secure equal pay for women, which will benefit all women and their families, particularly women of color who are disproportionately impacted by discriminatory pay practices, and against other factors that contribute to the wage gap. And we will combat the discrimination they face on and off the job. While Donald Trump thinks it is “dangerous” for women to leave the home and paid family leave hurts our economy, Democrats will make sure that the United States finally enacts national paid family and medical leave by passing a family and medical leave act that would provide all workers at least 12 weeks of paid leave to care for a new child or address a personal or family member’s serious health issue. "
Excerpt from "Guaranteeing Lesbian, Gay, Bisexual, and Transgender Rights"
"Democrats applaud last year’s decision by the Supreme Court that recognized that LGBT people—like other Americans—have the right to marry the person they love. But there is still much work to be done... We will also fight for comprehensive federal nondiscrimination protections for all LGBT Americans, to guarantee equal rights in areas such as housing, employment, public accommodations, credit, jury service, education, and federal funding. We will oppose all state efforts to discriminate against LGBT individuals, including legislation that restricts the right to access public spaces. We support a progressive vision of religious freedom that respects pluralism and rejects the misuse of religion to discriminate. We will combat LGBT youth homelessness and improve school climates. We will support LGBT elders, ensure access to necessary health care, and protect LGBT people from violence— including ending the crisis of violence against transgender Americans. We will also promote LGBT human rights and ensure America’s foreign policy is inclusive of LGBT people around the world."
Excerpt from "Guaranteeing Universal Preschool and Good Schools for Every Child"
"Democrats believe we must have the best-educated population and workforce in the world. That means making early childhood education and universal preschool a priority, especially in light of new research showing how much early learning can impact life-long success. Democrats will invest in early childhood programs like Early Head Start and provide every family in America with access to high-quality childcare and high-quality preschool programs. We support efforts to raise wages for childcare workers, and to ensure that early childhood educators are experienced and high-quality."
Excerpt from "Securing Reproductive Health, Rights, and Justice"
"We will address the discrimination and barriers that inhibit meaningful access to reproductive health care services, including those based on gender, sexuality, race, income, disability, and other factors. We recognize that quality, affordable comprehensive health care, evidence-based sex education and a full range of family planning services help reduce the number of unintended pregnancies and thereby also reduce the need for abortions."
"And we strongly and unequivocally support a woman’s decision to have a child, including by ensuring a safe and healthy pregnancy and childbirth, and by providing services during pregnancy and after the birth of a child, including adoption and social support services, as well as protections for women against pregnancy discrimination. We are committed to creating a society where children are safe and can thrive physically, emotionally, educationally, and spiritually. We recognize and support the importance of civil structures that are essential to creating this for every child."
Excerpt from "Ending Violence Against Women"
"Democrats are committed to ending the scourge of violence against women wherever it occurs —whether in our homes, streets, schools, military, or elsewhere. We will continue to support the Violence Against Women Act to provide law enforcement with the tools it needs to combat this problem..."
Excerpt from "Women and Girls"
"We will support sexual and reproductive health and rights around the globe. In addition to expanding the availability of affordable family planning information and contraceptive supplies, we believe that safe abortion must be part of comprehensive maternal and women’s health care and included as part of America’s global health programming. Therefore, we support the repeal of harmful restrictions that obstruct women’s access to health care information and services, including the “global gag rule” and the Helms Amendment that bars American assistance to provide safe, legal abortion throughout the developing world."
Excerpt from "Lesbian, Gay, Bisexual, and Transgender People"
"Democrats believe that LGBT rights are human rights and that American foreign policy should advance the ability of all persons to live with dignity, security, and respect, regardless of who they are or who they love. We applaud President Obama’s historic Presidential Memorandum on International Initiatives to Advance the Human Rights of Lesbian, Gay, Bisexual, and Transgender Persons, which combats criminalization, protects refugees, and provides foreign assistance. We will continue to stand with LGBT people around the world, including fighting efforts by any nation to infringe on LGBT rights or ignore abuse."

2016 Libertarian Party Platform Word Cloud
The 2016 Libertarian Party Platform mentions the words "child" or "children" 6 times, and the word "marriage" once.  The Libertarian party platform never uses the words "family", "families",   "gay", "lesbian", "LGBT", or "transgender".

Below are some of the excerpts from the Libertarian party platform's discussions relevant to families:

Excerpt from "Personal Relationships"
"Sexual orientation, preference, gender, or gender identity should have no impact on the government’s treatment of individuals, such as in current marriage, child custody, adoption, immigration or military service laws. Government does not have the authority to define, license or restrict personal relationships. Consenting adults should be free to choose their own sexual practices and personal relationships."
Excerpt from "Abortion"
"Recognizing that abortion is a sensitive issue and that people can hold good-faith views on all sides, we believe that government should be kept out of the matter, leaving the question to each person for their conscientious consideration."
Excerpt from "Parental Rights"
"Parents, or other guardians, have the right to raise their children according to their own standards and beliefs. This statement shall not be construed to condone child abuse or neglect."
Read the full 2016 Libertarian Platform here.

2016 Green Party Platform Word Cloud
The 2016 Green Party Platform mentions the words "child" or "children" 56 times, the words "family", or "families" 54 times,  the word "marriage" 4 time, the words "gay", "lesbian", or "LGBT" 7 times, and the word "transgender" 2 times.

Below are some of the excerpts from the Green party platform's discussions relevant to families:

Excerpt from "Families and Children"
"We call for social policies to focus on protecting families... The Green Party supports and seeks to expand Head Start and Pre- and neo-natal programs. A Children's Agenda should be put in place to focus attention and concerted action on the future that is our children... A universal, federally funded childcare program for pre-school and young schoolchildren should be developed."
"Family assistance such as the earned income tax credit, available to working poor families in which the parent supports and lives with the children, should be maintained and increased to offset regressive payroll taxes and growing inequalities in American society."
Excerpt from "Social Equality"
"The Green Party calls for U.S. passage of CEDAW, the Convention on the Elimination of all forms of Discrimination Against Women, which was adopted in 1979 by the U.N. General Assembly and ratified by 173 countries. The U.S. is one of the very few countries, and the only industrialized nation, that have not ratified it."
"We support the inclusion of an equal number of women and men in peace talks and negotiations, not only because these efforts directly affect their lives and those of their husbands, children and families, but also because when women are involved, the negotiations are more successful."
Excerpts from "Reproductive Rights"
"Women's rights must be protected and expanded to guarantee each woman's right as a full participant in society, free from sexual harassment, job discrimination or interference in the intensely personal choice about whether to have a child." 
"Women's right to control their bodies is non-negotiable. It is essential that the option of a safe, legal abortion remains available. The "morning-after" pill must be affordable and easily accessible without a prescription, together with a government-sponsored public relations campaign to educate women about this form of contraception. Clinics must be accessible and must offer advice on contraception and the means for contraception; consultation about abortion and the performance of abortions, and; abortion regardless of age or marital status." 
"We endorse women's right to use contraception and, when they choose, to have an abortion. This right cannot be limited to women's age or marital status. Contraception and abortion must be included in all health insurance policies in the U.S., and any state government must be able to legally offer these services free of charge to women at the poverty level. Public health agencies operating abroad should be allowed to offer family planning, contraception, and abortion in all countries that ask for those services. We oppose our government's habit of cutting family planning funds when those funds go to agencies in foreign countries that give out contraceptive devices, offer advice on abortion, and perform abortions."
Excerpts from "Economic Equality"
"Since, nationally, women earn only 77% of men's wages for equal work, despite outnumbering men in the workforce and despite the U.S. 1963 Equal Pay Act, we support intensified effort to see this unfair gap closed, including support for the Paycheck Fairness Act and similar legislation, and greater effort at enforcement."
Excerpts from "Sexual Orientation and Gender Identity"
"The Green Party affirms the rights of all individuals to freely choose intimate partners, regardless of their sex, gender, gender identity, or sexual orientation." 
"The Green Party recognizes the equal rights of persons who identify as gay, lesbian, bisexual, intersex, trans-sexual, queer, or transgender to housing, jobs, civil marriage, medical benefits, child custody, and in all areas of life including equal tax treatment." 
"The Green Party will enact a policy that the U.S. Government recognize all international marriages and legal equivalents, such as civil unions, in processing visitor and immigration visas."
Excerpts from "Youth Rights"
"Youth are not the property of their parents or guardians, but are under their care and guidance." 
"Youth have the right to survive by being provided adequate food, shelter and comprehensive health care, including prenatal care for mothers." 
"Youth have the right to develop in a safe and nurturing early environment provided by affordable childcare and pre-school preparation."
Excerpts from "Adoptee Rights"
"Due to current laws millions of adults that were adopted as children are now being denied access to vital records regarding their births. This is a basic human right that the Green Party should be committed to help in abolishing the secrets and lies that surround many adoptions around the world by creating necessary transparency between adoptees, their mothers and adoptive parents."
Read the full 2016 Green Platform here.

Tuesday, August 9, 2016

Spreading the Word on the Benefits of LAR: An Interview with the Chief Justice of the Probate & Family Court

Valerie Qian

Photography by
Matthew Raymond
In a recent interview with Chief Justice Angela M. Ordoñez, Valerie Qian, of Skylark Law & Mediation, and the Chief Justice discussed the benefits of Limited Assistance Representation ("LAR"):
Chief Justice Ordoñez: "one of my goals and objectives in this department is to increase lawyer retention, and we have an enormous amount of unrepresented litigants, and a small percentage of represented litigants. We could close that gap significantly with LAR."
In Valerie's article the Chief Justice and retired Justice Hon. Edward M. Ginsburg both noted the lack of public and bar knowledge about LAR and the need to spread the word.
"The sad consequence of our ignorance is that by overlooking LAR, attorneys fail to extend our hands to help those who most need it. If there is any vestige of the bright-eyed, bushy-tailed lawyers we were when we emerged from law school ready to change the world, we owe it to ourselves and to the practice to acknowledge the most important benefit of LAR: that with it, many who cannot afford a lawyer, and who most need one, can have one."
Valerie also addressed some frequently asked questions about LAR, and made an excellent case for adding this work to your practice.  In the article's conclusion, Valerie notes the importance of providing services that are client focused.  This not only means addressing the clients' substantive concerns, but it also means providing clients with different choices for process.  Mediation, Collaborative Law, and LAR all offer clients the chance to make an informed choice about what portions of their case they want to be in charge of, and what portions of their case they need professional help with:
"In the same way, it could be beneficial to a large portion of potential family-law clients to dissect their case into parts that could most benefit from the help of a lawyer, and parts that they could handle on their own without incurring the costs of an attorney. There should be a broader way to look at a family law case. A family is much more than what happens in the courtroom and what lawyers can do."  
Read the full article on the Boston Bar Association website here.

Monday, July 18, 2016

Alimony or Unallocated Support: What's the Difference?

Guest Post from Jennifer Hawthorne*

When contemplating a divorce, one of the first questions most parties to a divorce ask themselves is “how will I support myself during and after the divorce?” Determining how much support can or should be paid by the higher income earner to the lower income earner can often be one of the most contentious issues in a divorce. Both parties often feel like they just will not have enough income to support themselves and their children. This uncertainty can be unsettling. 

In many cases trying to find the right balance of support can lead the parties to do a tax analysis that compares the benefits of agreeing to a child support order, an alimony order, or some combination of both, sometimes called unallocated (family) support.  Often times the tax analysis will show that moving away from child support even though there are unemancipated children will leave more money in the hands of both parties. This happens because alimony and unallocated support are taxable to the recipient and tax-deductible to the payor.

Child support on the other hand is taxable to the payor and tax free to the recipient. When one spouse earns a significantly larger income than the other spouse, it can be beneficial to shift a portion of the tax burden to the lower income earner, which then lowers the tax the family owes to the Internal Revenue Service (IRS) thus allowing more money to stay in the family, benefiting both parties and the parties’ children.

Alimony and unallocated support can save some families money 
by shifting income to a lower tax bracket.

You may be thinking, “but isn’t child support presumptive?” Will a court approve a separation agreement that does not have child support? Generally, if the parties have negotiated an out-of-court separation agreement through mediation, the Collaborative Law process, or lawyer-to-lawyer negotiations, the judge will accept a complete waiver of child support as long there is language explaining that the waiver of child support was a factor in determining and agreeing to the alimony or unallocated support order.

In fact, even in the absence of this language, in a recent case decided by the Supreme Judicial Court, Duff-Kareores v. Kareores, the justices presumed that because there were unemancipated children but no language discussing child support in the parties’ separation agreement, the alimony order included child support. In other words, even though the parties called the support order alimony, the court decided that it was really some form of unallocated support. 

That leaves the question, if alimony is presumed to include child support when there are unemancipated children, why not just call it unallocated support?

One benefit to calling the support order alimony is that there is a statutory framework and case law that can be used to help parties (or a judge) figure out the details of the order. For example, by statute, alimony is based on the recipient’s need and the payor’s ability to pay. In figuring out the amount of support paid, a court would look at the need of the recipient or the order can be based on 30%-35% of the difference in the parties’ incomes. This can give parties a starting place for their negotiations. There are also statutory durational limits to alimony based on the length of the marriage. There are clear rules for what income should be included when calculating alimony. There is case law discussing the modification standard for alimony. In other words calling the support order alimony can provide clarity.

Clarity - advantage Alimony: Alimony 1 v. Unallocated Support 0

Of course, in some instances, this statutory framework may cause more harm than good. For example, depending on the length of the parties’ marriage, the payor’s age, and the age of the children, calling the support alimony and using the statutory framework to determine the durational limit may cause the support order to end while the children still need financial support. Likewise, if alimony or unallocated support is reduced or terminates within the same 6 months or 1 year of emancipation (depending on how often reductions occur), the IRS can turn around and say the support was really child support.  This is called alimony recapture and it also applies to unallocated support. If this happens, the benefit to having chosen alimony or unallocated support over child support can disappear when the payor is assessed penalties and fines.

Recapture - Tie: Alimony 1 v. Unallocated Support 0

In order to avoid these pitfalls, parties may agree it is better to create their own rules around when and how the support order can be modified and if and when it terminates.  In other words, calling the support unallocated support may provide more autonomy for the parties to craft a support order that works best for the parties.

Flexibility - advantage Unallocated Support: Alimony 1 v. Unallocated Support 1

If parties choose this option, they must be very careful when drafting the language because there is no predicting how a court will interpret that order if they need to go before a judge for modification.  Flexibility can create uncertainty unless the terms of unallocated support and potential modification in the future are very clearly defined.

Future Uncertainty - advantage Alimony:  Alimony 2 v. Unallocated Support 1

Another reason to call the support order alimony rather than unallocated support occurs when the higher income earner is also the custodial parent. If the higher income earner is the custodial parent, an unallocated order would not include child support.  In a recent Appeals Court case, Rosenwasser v. Rosenwasser, the parties’ separation agreement called the support order unallocated support because it included child support and alimony while the lower income earning spouse (the mother) was also the custodial parent.

The unallocated support order included a base order and a percentage of income over the base amount.  However, when the support payor (the father) became the custodial parent and filed for a modification of the support order (along with a request to move to florida), the court used a similar formula (base and percentage) to calculate alimony despite the fact that the father was no longer paying child support.  The Rosenwasser decision focuses primarily on the removal issue, but the court's use of an unallocated support agreement to inform a pure alimony calculation is informative and shows how future application of unallocated support language can be unpredictable.  On the other hand, it's unclear that the court would have handled this any differently if the original order had been called alimony.

More Future Uncertainty - tie:  Alimony 2 v. Unallocated Support 1

Finally, and this may be the biggest deciding factor for some parties in deciding whether to call support alimony or unallocated support, the idea of alimony itself just does not sit well with everyone. While parties are usually comfortable with the idea of continuing to support their children following a divorce, many people are not comfortable with the idea of paying support to their spouse. It can conjure images of the ex-spouse shopping or taking lavish vacations or owning a roomy home while the payor spouse works diligently to earn an income, skips vacations, and lives in a smaller home. Whether this would be reality or not, if parties find themselves deadlocked in a mediation or negotiation over support because the term alimony is toxic to one party, one way to move forward toward an agreement may be to change the name to unallocated support. Maybe calling the support order unallocated support or family support will take away the sting and allow the parties to resolve their divorce amicably, while still taking advantage of the tax benefits.

The Title Dilemma - advantage Unallocated Support:  Alimony 2 v. Unallocated Support 2

Whatever the parties decide to call the support payments, the parties should work with their divorce practitioners including their mediator, respective attorneys and/or financial neutral to determine what support makes the most sense for their family.  The recent Appeals Court and SJC cases also suggest that parties should take particular care in drafting Agreements that involve alimony or unallocated support to ensure that their intentions are clear.  

*Jennifer Hawthorne is a Mediator and Collaborative Law attorney who runs her own practice in Framingham. Jennifer's practice includes family law mediation, divorce representation, and estate planning. Click here to visit her website.

Monday, July 11, 2016

Should Mediators be Held to a Higher Standard?

The more I write and speak about mediation, the more opportunities I have to hear from people who still have questions about how it works.  Recently one attorney on LinkedIn asked me about whether there are rules for financial disclosure in mediation like there are in court.  This is, in fact, a common complaint about mediation; that many mediators don't require the parties to share information that the same parties would have to share in court.  Specifically in Massachusetts there is a rule, called Probate and Family Court Supplemental Rule 410, which requires the sharing of certain documentation in a divorce case within the first forty-five days of the case.

Should mediators be enforcing this rule and requiring financial disclosures in a non-litigated case?

I know mediators who would answer this question yes and others who would answer no.  My answer is no, mediators should not be enforcing financial disclosure (and I explain why below).  That answer troubles many lawyers because they fear that clients will make bad and uninformed decisions in mediation that they supposedly wouldn't make if they went to court.  However, that concern is based on a false equivalency.  Those who have this concern about mediation are usually comparing unrepresented parties in mediation with represented parties in court.  They are comparing apples and oranges.  When we remove that misconception, then we can stop holding mediation to a higher standard than other processes.
Those who have this concern about mediation are usually comparing unrepresented parties in mediation with represented parties in court. They are comparing apples and oranges.
Pro se Mediation v. pro se Litigation (apples to apples):

Court rules don't automatically guarantee disclosure because the court doesn't check to see what discovery has been exchanged or enforce specific discovery unless a party makes a request, and many unrepresented parties don't know how to make that request.  Similarly in mediation, information may not get shared unless one party knows to request it.  However, there are some advantages of the mediation process over court, even when attorneys aren't involved.

Mediation is a voluntary process, which has both pros and cons.   One con is that there are not enforceable rules about disclosure like in court. However, I inform clients that if they do not produce information requested by the other party then that person may not continue to voluntarily participate.  That's a motivation to cooperate that people don't have when they are forced to participate in a court process.  

Judges and mediators also have something in common, as neutrals they can't provide legal advice. Mediators, however, can provide legal information.  This is something the court process doesn't allow Judges to do, both practically given time restraints and for fear of how it might appear.   While a mediator can't require the production of documentation like a judge can, the mediator's ability to educate the parties about legal information is often much more useful because it empowers parties to know what information they need and how to apply that information.  What good is financial disclosure if people have no idea what to do with it?

Finally, mediation is a self-determined process so the parties can decide what level of financial disclosure is necessary.  Some cases may not require all of the Rule 410 documentation, and some will need much much more.  Rule 410 in court could give some parties a false sense of security if they didn't know to ask for more.  When parties lack knowledge or experience they are more likely to make bad decisions, which is why it's always better when parties are represented, regardless of the process.

Mediation with Attorney Representation v. Litigation with Attorney Representation (oranges to oranges):

Having a lawyer involved in a case provides many advantages to a party.  The lawyer's experience is likely to lead them to ask questions that the party may not know to ask on their own, and they can advise the party on how the law applies to their case.  The mediator, even when they are a lawyer by training, is not acting as a lawyer for either party so they don't provide these services.  The best protection for both parties whether participating in mediation or a court process is to hire experienced counsel to help them know the right questions to ask.  
The mediator, even when they are a lawyer by training, is not acting as a lawyer for either party.
Mediating with attorney representation can happen with the attorney in the room during the mediation or just advising the client in separate meetings.  Either way, mediation has some advantages and some disadvantages when compared to the court process with attorneys involved.

An advantage of the court process is that the court can create enforceable rules and orders and this provides protection when one party is the "bad actor."  When protection is necessary, for example when one party is trying to hide information, the law can be an equalizer, a hammer that nails down necessary compliance.  However, this advantage can also be a disadvantage when there isn't a "bad actor."  In divorce cases, there isn't always a good guy and a bad guy, but "if the only tool you have is a hammer, [it's tempting] to treat everything as if it were a nail."  The mediation process doesn't force parties into an adversarial process and instead gives them the opportunity to focus on the problem instead of the people.

Another advantage of the mediation process is that it is flexible.  Lawyers and parties are often frustrated by the court's schedule moving too fast or too slow, or both.  Mediation allows parties to move at their own pace and to determine both the process and outcome that is best for both of them.

Finally, mediation is usually less expensive than court, and provides more value.  Consider a meeting to resolve a parenting plan vs. a court hearing to do the same.  In a meeting with a mediator and attorneys, the parties are paying for three people instead of two so the per hour cost may be more.  However, in a meeting all of the focus is on settlement and that usually means faster resolution than in court where the lawyer has two jobs: they have to prepare for the fight while at the same time trying to settle.  This makes it harder to settle and therefore less likely.  Also, time in court often involves a lot of waiting around, which is time the parties are paying attorneys but not receiving value.

Also, parties are more likely to follow agreements than comply with orders, because they have buy-in to the process of creating the agreement.  This means that there is a long-term savings by reducing the likelihood of additional future conflicts replaying the same issue over and over.

Apples and Oranges:

I previously wrote an article entitled "Should we also talk about when Mediation fails?" which was re-posted by  That article tries to honestly address the fact that sometimes mediation fails.  Despite the advantages not every mediation will succeed, and not every mediator is a good mediator.  But I've noticed lately how quick lawyers are to point out bad mediators, and how slow they are to point out bad lawyers.  Where are the complaints from the bar about all the poor agreements drafted by litigators, or caused by bad representation?

Both the legal and the mediation professions benefit from high quality legal representation and from high quality mediators.  We should be encouraging each other and partnering as much as possible to help resolve conflict effectively, instead of comparing apples and oranges in an effort to tear each other down.  As a mediator, I truly appreciate when my clients work with effective experienced counsel that understand mediation.  I hope that more attorneys will take the time to educate themselves about mediation and even take a mediation training so that they can understand that in most cases it is also true that lawyers can benefit from having effective experienced mediators involved.

Wednesday, July 6, 2016

The Serious Problem with (most) Divorce Court Settlements

Very few divorce cases actually go to trial.  Even cases that start out with both parties intending to litigate, or "have their day in court", usually settle.  I've heard many litigators argue that since most of their cases settle anyway, the court process is better than mediation because it offers more protection to the participants.  However, there is a serious problem with settlements that happen during the litigation process:  they are rushed and people often feel pressured into signing at the last minute.

Despite the fact that the court process of a divorce typically takes longer than a mediation, the court process has a lot of what I call "hurry up and wait."  The litigation process typically involves long periods of waiting for deadlines to pass and for the next court hearing and then a flurry of activity right before the court hearing is scheduled.   Then, if that flurry of activity doesn't result in a settlement you're back to waiting.

For example in Massachusetts, approximately six to eight months after the filing of a Complaint for Divorce, the court will hold a pre-trial conference.  Before the pre-trial conference, the parties are supposed to complete discovery and meet at least once to try and settle the case.   For most people they didn't need 6-8 months to completely exchange the relevant information, and meeting much earlier would help them move closer to settlement.  Instead, many litigators wait until two weeks prior to the pre-trial conference to have their first face-to-face meeting with the other side.  Then, in that two week period they try to settle everything.

From a litigator's perspective, when that two week period arrives you should have all the information you need to settle (completed discovery), and after you meet then you know whether you agree or disagree on how the judge will apply the law to the facts of this case.  If you disagree, then you go to the pre-trial and ask the judge for guidance on the law, and with that guidance you settle the case that day.

From a divorcing couple's perspective, they have been waiting for 6-8 months for something to happen in their case.  They feel anxious and afraid of what's going to happen, and many don't understand how a pre-trial is supposed to work.  Now all of the important financial and family decisions they need to make have to be made in a short period of time, or they are threatened with the possibility of a much bigger bill and a trial.  The pressure is ratcheted up with little time to understand the consequences of the options put in front of them.  Yet, this is how many cases settle in the litigation process.  It's no wonder that many spouses leave this process feeling resentful and second-guessing their deal.  Like any trial by combat, where the event takes far less time than the preparation, they will always be left wondering what if.  What if I had more information before I settled?  What if I had the opportunity to explore more options?  What if I had more time?

This procedure for divorce cases is copied from other civil disputes, without any recognition of the additional emotional, financial and family pressure that divorcing couples feel.  Mediation, Collaborative Law and other out-of-court negotiation processes offer a way of avoiding this serious problem.  By allowing the couple to set the timeline they can have multiple meetings scheduled at their convenience (not the court's timeline).   The individuals may still feel pressure to settle to reduce costs or to get the divorce over with, but that pressure isn't exacerbated by the process.  Rather than forcing the parties into an adversarial last-minute negotiation, mediation and collaborative law give them space and time to explore options fully and make informed and rational decisions.

How do you avoid a last-minute rushed settlement?

If you aren't in court yet and neither person has filed a Complaint against the other, then explore all of your options before making a decision.  Interview a mediator, and a collaboratively-trained attorney, and a litigator.   In some cases you may be able to find people who have experience in all three, like the attorney/mediators at Skylark Law & Mediation.   There are also some professionals who offer assessment consultations where the professional can meet with one or both spouses for the sole purpose of helping them decide which process is best for them.  For this type of assessment meeting the professional would disqualify themselves from being the attorney or mediator in the process, so there is no conflict of interest in the assessment.  Justin Kelsey offers assessment consultations as a service, as does Heidi Webb of Consilium Divorce.

If you are already in court there are still things you can do to avoid a last-minute rushed settlement.  Unless there is domestic violence, there is no reason why you shouldn't meet more than once before a pre-trial conference.  There is no need to wait until all discovery is complete or a deadline is looming to have a settlement conference.  Request that you have your first settlement conference as soon as possible and always keep the next one scheduled.  If you think you need neutral assistance to settle (e.g. if communication is particularly difficult) then hire a mediator to work with you.  Just because the court process has started doesn't mean you can't work with a mediator, and most mediators are fine meeting with both lawyers and clients together.

In short, if you want to have control over how your settlement is reached, not just when, then take control and choose a process that offers the appropriate space and time to reach fair and thoughtful solutions.

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