WE HELP FAMILIES RESOLVE CONFLICT PEACEFULLY


Wednesday, February 19, 2020

Top 5 Reasons to get Trained in Mediation

Mediation is a process for resolving disputes with an impartial facilitator. The mediator helps open and improve dialogue between two or more individuals in hopes of finding an acceptable resolution for everyone involved.  There are many advantages to settling disputes through mediation, and we need more mediators in this world to help spread the word.




If you're thinking about taking a mediation training here are five reasons you should do it sooner rather than later:

1. Mediation is good for Clients

Mediation helps clients because it is typically less expensive and more efficient than litigation, it gives the clients control over their timeline and the outcome, and it is private.  These are all things that clients typically value in resolving a dispute.  When educated about the benefits of mediation, most clients will be open to at least trying mediation before pursuing other options.  The risk is typically low and the potential benefit significant.  Potential clients will appreciate that you offer mediation as an option, and existing clients will appreciate that you are educated about a service they might seek to use.

2. Mediation is proven to Work

Most studies or programs that have tracked the settlement rate of mediation sessions, show that about 85-95% of the time mediation is successful in helping clients reach full settlement.  In addition, even in cases that don't reach full settlement, there may be improvements in the relationship between the parties, which many might consider a success.  One study of family mediation found that parents were much more likely to have an ongoing relationship with their children after simply trying mediation for five hours, even if they didn't settle. Read more about that study by clicking here.

3. Mediation is good for the Mediator

Speaking from experience, mediation is a rewarding process to be involved in.  The process of mediation gives clients power over their decisions, and even when people have difficult conversations, the majority reach an agreement that they feel in control of.  That process is empowering and meaningful, and as the mediator helping parties have that experience can be very rewarding. While not all lawyers are mediators, as a lawyer-mediator there is strong contrast between my experience in mediation and my experience litigating.  In litigation, people are often frustrated by how little control they have over the rules, the process, and the outcome.  It's much more enjoyable to have clients who are happy with their process even when the outcome is not everything they may have wanted initially.

4. Mediation will Grow

The growth of online shopping and services, has led to a more educated class of consumers in the modern world.  Consumers want efficiency, and they want services that are proven to work.  Mediation is the settlement process that most closely resembles the online shopping culture, and if necessary mediation can even be conducted online with advancements in user friendly video conferencing software.  Mediation is going to continue to grow, and offering that service will become more and more of a necessity for dispute resolution professionals who want to keep up.

In Massachusetts, in order to take mediator referrals from the court, or to mediate with privilege, the statute requires that you take a 30 hour training.  The courts are inviting mediators into the courthouse more and more often to assist in resolving cases, and as this trend grows, there will be more and more opportunities to participate in mediation, if you've taken the necessary training.

5. Mediation skills are Life Skills

After taking the mediation training myself, I started recommending it to everyone I know, whether they will be a mediator or not.  Most mediation trainings include a focus on active listening techniques and interest based negotiation.  These skills will make you a better negotiator whether it's part of your job or just in your own life.  These are skills that can improve your relationships and reduce conflict in your life.

If you're interested in taking a mediation training, there are many opportunities including two trainings per year held by Divorce Mediation Training Associates, with the next training scheduled in March, 2020 in Needham, Massachusetts.  Learn more here: 40 hour Divorce Training.

Wednesday, February 12, 2020

The Difference between Disclosure and Division in Divorce

We encourage our clients to use non-adversarial joint problem solving to resolve conflict.  A simpler way of saying that is that we work with people to talk about and solve their problems together.  We ask our clients to stop seeing the other person as an obstacle to overcome, and rather to see them as an ally in finding a solution that can work for everyone. Consider the advantages of this approach when it comes to a financial negotiation:

Just like poker players hide their cards when they play a hand, people often assume the best approach to negotiation is to hold back information to achieve the best outcome for themselves.  This analogy ignores the fact that the rules of poker are designed around having incomplete information, and using clues to gain an edge.  The rules of negotiation are often different depending on the context.  For example, in a divorce case the court in Massachusetts requires certain financial information to be automatically disclosed, and other information that is likely to lead to relevant information can be obtained through formal discovery.

In a Massachusetts divorce case, whether the parties settle (and file a Joint Petition) or go through litigation (on a Complaint for Divorce), a Judge is still required to approve any settlement agreement at a hearing, and the parties are both required to file a court form Financial Statement.  The Financial Statement is an under oath statement intended to be a true, accurate, and complete summary of each person's income, expenses, assets, and liabilities.  Through this format, in Massachusetts a basic disclosure of all financial information is required in every divorce case.

These rules ensure an even playing field in negotiation and settlement.  However, it's important to understand that disclosing an asset doesn't necessarily mean it must be divided.  Massachusetts asset division is governed by M.G.L. chapter 208 section 34, which defines a number of factors for the court to determine an equitable division, and equitable does not necessarily mean equal.

That is why we think it is important to distinguish between Disclosure and Division.

Just because something is disclosed and both people have the same information, doesn't mean that they will agree on how to divide something, nor should it imply that they have to.  This is where additional information can help enlighten a negotiation, helping each side understand the others' position or goals.

The other person in a conflict is the only other person in the world who has as much information as you about the issue causing disagreement.  All the professionals you work with will never know as much as you do about your own life.  So the best problem solving method should put the two of you at the center, and provide you with an effective path for working together.

In addition to this basic financial disclosure required by the court, in a divorce mediation or collaborative divorce, the guiding principle is that people making decisions should have the same information.  Outside of court, mediation and collaborative law set their own rules about what should be disclosed or requested.  People in conflict are sometimes unsure about what to share and what to hold back, and they might not be clear on the "rules" especially if they're afraid that disclosing something means it will automatically be divided.

That is why it's crucial to explain the difference between disclosure and division.  We guide our clients through joint problem solving by encouraging them to think of the process as follows:



People may disagree about the impact of information, but if they have the same information there is an opportunity to address the areas of disagreement.  If an asset or income stream is hidden, then people can't agree on it's impact, and if later discovered, the act of hiding something can destroy all possibility of joint problem solving.

The court process is designed to set up specific rules for default information to share, and puts the burden on the person requesting the information to be both specific and to enforce their requests.  This is a necessity in an adversarial system where the assumption is that everyone is trying to hide something.  In mediation and collaborative law, we start with a different assumption: that people who are willing to commit to joint problem solving will also share all relevant information in an effort to work together.  We start with the assumption that people can make their joint problem into a joint solution, and that working together will be more enlightening as to the best possible solutions for all.


Tuesday, February 4, 2020

Divorce Options - an Update for 2020

In 2014, we didn't know yet who was running for president in 2016, the Guardians of the Galaxy had just arrived, Pharrell Williams was "Happy", and the Ebola virus outbreak was reaching epidemic proportions in West Africa.

Also, in 2014 we posted a 3-part article on Starting the Divorce Process, and despite how much has changed since 2014, divorce is pretty much the same.  You have a choice when getting divorced; you decide how much professional help you want, how much control you want to have over the outcome, and how much time and energy you have to devote to your divorce.

What is different in 2020 is the continued growth in popularity of divorce process options that focus on family over fighting.  More professionals are trained every year in collaborative law and mediation. Conscious uncoupling has become a buzzword for a better divorce. More and more resources are showing up to help explain the options in divorce in more understandable and approachable ways:

A Collaborative Law Success Story - 4 part video series

Mediation Helps Solve your Conflict - Video

In 2014 we outlined the divorce process options and the differences between collaborative law, mediation and more traditional options.  Since then, in my experience of working actively in the collaborative law and mediation communities, I've seen an increase in the creativity that professionals and clients are willing to bring to problem solving.

In 2020, it's okay to say that cases 
don't have to fit into one process box.

Litigators are more open to using mediators to settle cases before trial, or using joint experts in the course of a negotiation.  Mediators are bringing in divorce coaches and financial professionals to help their clients when the issues require expert assistance.  The tools available in a collaborative law case are being recognized as possible ways to improve any negotiation.  Even in the courts, which are notoriously slow to adapt, pilot programs are exploring how non-adversarial approaches can help families.

The growth of collaborative law and mediation has been slower than some would like (the author of this article included), but and the future is bright with possibilities.  

In a divorce, we ask clients to look a year or two in the future and think about what they want their life to be like.  This helps them see the hope that is possible and determine what process might be best for them.  Looking back at the growth from 2014 to 2020, I'm also filled with hope about what is possible for the future of conflict resolution.

We've updated our Divorce Process Options chart to reflect this mindset of hope. We created two versions with different levels of information, and you can decide which you prefer.  Feel free to share either on your website, or print and share with your clients (keeping our copyright and contact information for attribution):




To post on your website or blog, copy and paste the following code:





To post on your website or blog, copy and paste the following code:




Thursday, January 30, 2020

Can't we all just get along? The biggest misconception about Mediation and Collaborative Law

One of the more common comments I hear when I tell people that I'm a mediator is

"It sounds great, but it wouldn't have worked for me." 

When mediation has been shown to be about 85% successful in most studies, why do so many people assume it won't work for their conflict?  The answer is that many people believe that difficult conflicts can only be resolved through compromise; by at least one side giving up something and admitting at least a partial defeat.  When the stakes are high enough, people believe you can only reach agreement or resolution by beating the other side or giving in.  Sure, if you're getting along and you mostly agree then talking it out can work, but if not you may as well prepare for war.  And wars always have clear winners and losers, right?

The power of mediation and collaborative law is how trained professionals
help people find answers when they're NOT getting along.

In actual practice, mediators and collaborative practitioners are specifically trained to help people have difficult conversations, and to find ways to break down conflicts that seem insurmountable.  In order for mediation and collaborative law to work you only have to have an open mind and be willing to do the work to face your conflict instead of hiding from it.

The real reason many people let lawyers negotiate for them or judges decide for them, is because they're unwilling to face the conflict they have with the other side, they're unwilling to have difficult conversations, and they're afraid of failing.  Sure, there are some cases where the other side is unwilling to be reasonable, but if everyone thinks that way, then everyone is unreasonable.  

To think about it another way check out this twitter thread using a conflict over pizza as the example:

For more information on how #mediation and #collaborativelaw actually work check out these articles:

A Collaborative Law Success Story - 4 part Video Series

You're Thinking about Conflict All Wrong

What Does it Mean to Call Yourself a Collaborative Lawyer?

Improving Negotiations using Collaborative Values: A Checklist of Tools

Why do People go to Court to get Divorced? Because that's where the money is...

Saturday, December 7, 2019

Parenting Plan Provisions - How Rigid or Flexible should You Be?

When drafting a parenting plan for separated parents of minor children, there are some basic things that should be in every plan.  These include answering the following questions:
  • Who has decision making responsibility (also known as legal custody)?
  • Who has residential responsibility and when? In other words, design a base parenting schedule (also known as physical custody).
  • When can the base schedule be changed? For example including a holiday and vacation schedule.
  • Are there any necessary agreements around communication?
  • Are there any limitations or notification requirements related to travel with the children?
  • How and when can the schedule be changed?
  • What other events require notification (such as illness of a child)?
  • What is your plan for dealing with disagreements?
Some parenting plans keep these terms relatively simple and leave a lot of room for flexibility between the parents.  There are pros and cons to any choice when drafting an agreement, and a flexible or vague agreement has risks and benefits.  One benefit is that it allows the parents to make decisions easily when life changes, without locking them into a schedule that might not work as their children grow.  It also encourages the parents to communicate about the children.

However, there are risks to a flexible plan as well.  If the parents have a lot of conflict, or find it difficult to communicate, then they may not be able to make decisions when the plan is not specific enough.  A more structured plan has the advantage of including a default schedule to fall back on when there is a disagreement.  In addition, while a structured and very specific plan can take longer to negotiate, it can help avoid future conflict.  For young or anxious children a specific schedule can also provide comfort that there is a clear plan for moving forward.

It's important to consider how specific your parenting schedule and communication guidelines should be based on the level of conflict in your case and the ages and needs of your children.  This is a good area to obtain advice from a child development specialist or an experienced family law attorney if you're not sure what to do.  You can use resources online to help you evaluate options, such as the Parenting Plan Worksheet available on the Skylark Law & Mediation website.

In addition to these basic considerations, it can also be helpful to consider provisions that address areas of potential future conflict, or any circumstances unique to your family.  This might include provisions surrounding:
  • Introduction of children to new significant others;
  • International travel and passports;
  • Preventative or elective medical or dental care, immunizations, and body modifications;
  • Children's use of technology;
  • Use of children's images;
  • Religious education
  • Disciplinary differences;
  • Safety provisions related to activities of children;
  • Defining the potential guardians of the children if both parents are deceased or incapacitated; and
  • A safety plan for parenting time if either parent has a history of abuse, substance abuse, or other condition that endangers the health or safety of the children.
If you're not sure how to address these provisions consider working with professionals and obtaining resources that provide sample agreements.  Gray Jay Endeavors, LLC has provided a comprehensive free Memorandum of Understanding form available for download here in a simple fillable format.  Full Separation Agreement templates, or specific schedules, can also be purchased from Gray Jay here.   The Agreement templates include sample provisions for all of the above listed parenting plan parts (both the basic and more unique portions).

If something is not addressed in your parenting plan you might be waiving your rights to it in the future, or setting up yourself up for future conflict in co-parenting.  To avoid these issues, you want to ensure that your agreement covers all the typical provisions and anything unique to your family.

We will continue to address these potential drafting issues in our upcoming blog series on Separation Agreements, including the following articles specific to parenting plan provisions:
  • Introducing new Significant Others to Children (and other difficult agreements to discuss);
  • The Intersection of Technology and Parenting Plans.

This is the second article in our series on Divorce Agreement drafting.

For the last article click here: What is the difference between a Memorandum of Understanding and a Divorce Agreement?

Check back for our next article: Introducing new Significant Others to Children (and other difficult agreements to discuss)

For more useful resources try these links:

Download a free Agreement Checklist

Download a free Memorandum of Understanding

Buy a Divorce Agreement Template

We hope you find these resources useful.  While our focus is on Massachusetts agreements, many of these tips will apply in other states as well.

Monday, November 25, 2019

What is the difference between a Memorandum of Understanding and a Divorce Agreement?

This is the first article in our series on Divorce Agreement drafting. For a list of the upcoming articles scroll to the bottom of this post.  If you want to jump right to our useful resources try these links:

Download a free Agreement Checklist

Download a free Memorandum of Understanding

Buy a Divorce Agreement Template

We hope you find these resources useful.  While our focus is on Massachusetts agreements, many of these tips will apply in other states as well.  Keep reading to learn more:

What is the difference between a Memorandum of Understanding and a Divorce Agreement?

To settle a divorce case in Massachusetts, the Probate and Family Court requires that the spouses file an agreement resolving all terms related to dissolving their marriage.  This is typically called a Divorce Agreement or Separation Agreement.  It is a public document that the judge must review and approve for a divorce to be finalized in Massachusetts.

To be approved, the Divorce Agreement must include provisions addressing at a minimum:
  • Alimony
  • Asset & Liabilities Division
  • Health Insurance
  • Life Insurance
  • Legal & Professional Expenses
  • Income Taxes
  • Dispute Resolution Provisions
and if there are un-emancipated children it should also address:
  • Parenting Plan
  • Child Support and Expenses
A more complete checklist for agreements can be downloaded here.

The Divorce Agreement is a legal contract outlining these terms and, like a will or trust, it is best to have a lawyer draft the agreement. A Memorandum of Understanding, on the other hand, is a much simpler document, which outlines only the terms of the agreement without all the legal contract language or formality.

Often mediators will draft a Memorandum of Understanding to confirm the terms that spouses agreed on in mediation.  The Memorandum of Understanding (or MOU for short) must then be turned into a full Divorce Agreement.  In Massachusetts, a mediator who is also a lawyer can draft the full Divorce Agreement if both parties agree.

As an example of how different the language might be in each, a MOU might have the following language on child support:
Child Support is $300 per week paid by Jamie to Chris starting on November 29, 2019.
A Divorce Agreement will be more specific so that the court is clear on the additional details that may be necessary to enforce and clarify an agreement in light of the laws around child support in Massachusetts.  For example, a Divorce Agreement with the same terms might have the following language on child support:

Jamie and Chris now irrevocably waive all rights to past child support payments from the other party.  Jamie will pay to Chris, as current child support, the sum of $300 per week, with the first such current child support payment to be made on November 29, 2019 and on each Friday thereafter. The payment will be made by direct deposit into a checking account provided by Chris.  The amount of child support is consistent with the Child Support Guidelines effective September 15, 2018, and the guidelines worksheet filed herewith.
Jamie and Chris acknowledge that child support may be modified if there is an inconsistency between the amount of the existing order and the amount that would result from the application of the child support guidelines. If either parent requests a modification of support, and they reach agreement, such modifications and agreements will be reduced to a writing in advance of implementation and will be signed by both parents and submitted to the court with a Joint Petition for Modification, at shared cost. If Jamie and Chris are unable to agree, they will comply with the Enforcement and Dispute Resolution provisions in this Agreement.
All obligations described in this Schedule continue until further Order or Judgment of the court or upon the disqualification of the children by their emancipation.  Emancipation is defined by the application of the pertinent provisions of M.G.L. Chapter 208, Section 28.


Some attorneys and mediators will also offer flat fee drafting of full Separation Agreements if you need assistance converting a Memorandum of Understanding into a Separation Agreement. Skylark Law & Mediation, PC offers these services on a flat fee basis, and our pricing is available online here.

It is important, whether preparing an MOU or the final Divorce Agreement, that you provide a complete description of your intentions.  If something is not addressed in the agreement you might be waiving your rights to it in the future, so you want to ensure to cover all the typical provisions and anything unique to your family.

In our upcoming blog series on Separation Agreements, we'll explore the various provisions that are often overlooked or incomplete including how to write agreement provisions that address all of these issues:
  • Parenting Plan Provisions - How Rigid or Flexible should You Be?
  • Introducing new Significant Others to Children (and other difficult agreements to discuss);
  • The Intersection of Technology and Parenting Plans;
  • What's in a Name? - Divorce Agreement Drafting for Real People
  • Gender Neutral Agreement Drafting - Avoiding Pronoun Problems
  • Child & Spousal Support Checklist for Agreement Drafting
  • Getting Retirement Division Right in an Agreement 
  • Dealing with Unusual Assets in a Divorce
  • Digital Images & Divorce - Love's Library Lost?
  • Frozen Embyros & Divorce - What is the Law in Massachusetts?
  • Health Insurance Options in a Massachusetts Divorce - Knowing your Options
  • Protecting the Life Insurance - Necessary Provisions to Avoid an Heir Issue
  • Equity Compensation, Is Baccanti all there is to it?
  • Is a Divorce Agreement a Contract? 



Thursday, October 17, 2019

You're Thinking about Conflict All Wrong

Today is the third Thursday of October, which also happens to be Conflict Resolution Day.  While that may not seem as fun as International Pancake Day, Conflict Resolution Day is an opportunity to think about the challenges we face in our lives, and wonder:

Is there a better way to think about conflict; 
a model which can free us from our fear of conflict?

Conflict is a part of everyday life.  In our individual struggles to survive, grow, connect, and control the world around us, we often find that someone or something is in our way or making it harder to reach our goals.  It is a natural, animal instinct to envision these conflicts as a simple dichotomy: me v. you, us v. them, plaintiff v. defendant, the hero v. the villain, etc.  We see conflict most simply as a tug of war between two positions, two competing interests.  But what if we're thinking about conflict all wrong.

If I win, you lose.  If you win, I lose.

Picturing conflict as a one-dimensional struggle between two forces allows us to frame the conflict in an easy to understand way.  If you're wrong, then I'm right.  If what I want is good, then what you want is bad.  It is a tug of war between two positions, and there are only four options for resolution: you win, I win, we compromise (we both lose something), or we end in a stalemate.

However, when we see this conflict dynamic in a two-dimensional space it can help us see that there may be additional options for resolution.  



Negotiating between two positions, what you want v. what I want, assumes that the resolution can only be located somewhere on the compromise line depicted above.  In this graphic representation, we limit ourselves to a solution that exists on the line between "You Win" and "I Win".  Those limitations also limit our process options, the choices of how we will resolve the conflict.  If you won't give in or compromise then I must either use force to change your mind or seek an outside decision maker.  I either given up my agency or force you to give up yours.

These limited options both for process and resolution, explain why conflict often makes people feel hopeless and powerless, like they are losing control, or it turns them into bullies.  The good news, is that we don't have to resort to these methods when we expand our view of conflict beyond one dimension.

In a two-dimensional model of conflict there are significantly more options both for resolution and problem-solving.  There are numerous options below the compromise line in which we both lose more than if we compromised.  This is often the result in litigation because the emotional and financial cost of the fight reduces the potential result by those costs.  A fight is not a zero sum game.

However, there are also numerous options above the line.


There are options where we both get what we want when we view conflict in two dimensions instead of one.  A two-dimensional conflict resolution model looks at the possibility that conflict is more like an Olympic race than a tug-of-war.

Most of the racers in the Olympics know they aren't going to beat the favorite, the Usain Bolt or Michael Phelps.  So why do they show up, then?  They still show up to the race because they are racing for something else.  They may be racing against their own time.  The may be racing to represent their pride in their country.

They crossed the finish line just like the "winner of the race", 
but they won something different.  

We often assume that everyone in the race has the same goal, and because of that assumption, we see one winner and the rest as losers.  This is an oversimplification.  We know that most people don't have a chance of beating Usain Bolt in a footrace, and at the same time we may still be successful people.  We have different goals.  Even Usain Bolt will "lose" his share of races to others, and that doesn't change what he has accomplished in the past.

The result of conflict can be a success for everyone involved when we look at conflict differently, when we look beyond the tug of war and see that our goals may overlap in some ways and diverge in others.  Even this two-dimensional model is limiting because it assumes that our own interests are linear.  As complicated beings we not only have multiple interests, some of our own interests can be in conflict.

The most accurate way to view conflict may actually be an imperfect sphere of intersecting lines of interest.  Viewing conflict in this way helps us see that every conflict has many, many possible resolutions, and is rooted in many potential competing interests.  The skills and techniques used by  mediators, and other conflict resolution professionals, aim to help people in conflict step back and see the forest through the trees.  When people see their conflict differently, as a three-dimensional problem they can solve together, then the process of finding resolution can be as complex and as beautiful as this sphere.

The most revolutionary transformation of conflict comes when we let go of the rope between us and see each other not as enemies, but as joint observers of the problem.  Leaving behind a one-dimensional view of conflict, frees us all to be more creative problem solvers.  A two or three-dimensional view of conflict also frees us from the need to use force, or give up control, in order to resolve the conflict.  Instead when we are joint problem solvers, conflict is a challenge that we can tackle together, and the process itself leads to a greater understanding of each other's core interests.

In conflict between people that have an ongoing relationship, like families, neighbors and co-workers, this process of understanding can actually help resolve (and maybe even prevent) future conflicts as well.  It may sound corny at first, but this broader model of conflict resolution can help us recognize the potential beauty in both the process and resolution of a challenge.  It can help us see the opportunity in conflict and take away the fear that makes us avoid conflict.

Facing conflict (both inside ourselves and with others) helps us better understand our place in the world and grow our selves and our relationships.‬  Let us not fear conflict anymore, but face it with a better understanding of it's inherent beauty, complexity, and it's relation to our identity.






Related Posts Plugin for WordPress, Blogger...