WE HELP FAMILIES RESOLVE CONFLICT PEACEFULLY


Thursday, March 19, 2020

Replace your cancelled Court Hearing with a Mediation

If you have a court hearing scheduled in the next few weeks, most likely you've been told it's postponed.  While some hearings will be scheduled telephonically and by video conference, the COVID-19 pandemic is likely causing significant delays in obtaining a hearing and an order or judgment.  This is understandable as the court and the bar figure out how to adjust to this crisis.  Regardless of how understandable these delays are, though, the experience for individuals going through conflict must be frustrating, disappointing, and in some cases devastating.

Now is the time to consider your alternatives to court.

Mediation, conciliation, collaborative representation, and arbitration are all available options to those looking to resolve their issues without further delay.  Many of these dispute resolution professionals already have experience using videoconferencing to meet with clients and for us, our business has continued almost uninterrupted.  At my office, Skylark Law & Mediation, PC, the majority of our clients have opted to continue receiving mediation and collaborative services via videoconferencing rather than postponing their meetings.  It's not the same as being in person, but for clients, it's better than waiting to address their pressing issues.

So, if your clients are frustrated by the necessary delays in the court process, consider telling them again about their other options.  If you're looking for family conflict mediators you can find a list of professionals via the Massachusetts Council on Family Mediation website.  If your clients may not be able to afford a private mediator, consider the many community mediation services in Massachusetts that provide services on a sliding fee scale basis - all listed on the Resolution Massachusetts website.

If you're looking for a specific recommendation for a dispute resolution professional in any area of the law, feel free to reach out to me directly, or post a comment to this thread with your referral request.

Finally, this crisis is also an opportunity to think about how we plan to deal with conflict in the future.  We can continue business as usual when this crisis has passed (which it will), or we can reflect on whether this crisis has highlighted a better way to approach conflict.  Take these steps to be better prepared the next time an emergency situation occurs:

  • Get to know a mediator or co-parenting coordinator who can be a resource for your family in times of crisis.  Don't assume your lawyer or the court is going to be there to help, or that they should be your first call when there is a conflict.  
  • For professionals, get trained in mediation or collaborative law so you can provide additional service options to your clients (visit these links to sign up for a mediation training or collaborative law training in the fall).
  • Encourage the Massachusetts Bar Association (or your local bar association) to add mediation, conciliation, collaborative representation, and arbitration, as service options in their lawyer referral directory.  This has been proposed before to the Mass Bar and rejected, but it seems like it may finally be time to recognize how important it is to have alternatives to the court, and that the professionals who offer those alternatives offer a vital service.

Wednesday, March 18, 2020

Co-Parenting in a Crisis: COVID-19 and Beyond

UPDATE: Chief Justice John D. Casey sends an Open letter regarding co-parenting during COVID-19:

"It is times like this, when society faces threats once thought unimaginable, that the rule of law is more important than ever... Parenting orders are not stayed during this period of time. In fact, it is important that children spend time with both of their parents and that each parent have the opportunity to engage in family activities, where provided for by court order. In cases where a parent must self-quarantine or is otherwise restricted from having contact with others, both parents should cooperate to allow for parenting time by video conference or telephone."

Additional resources have become available during this crisis, please scroll to the bottom of this post for more resources.

Co-Parenting in a Crisis: COVID-19 and Beyond

by Jennifer Hawthorne

Mediators and collaborative professionals work with parents to create a realistic and practical parenting plan that is detailed enough to provide a roadmap for parents but flexible enough to allow for change given new circumstances.

At times though, even the best reality testing fails because life throws situations at us that may have been unimaginable when the parenting plan was created. What we are all living through now with the COVID-19 pandemic and the necessary social distancing it has brought is certainly beyond what most of us imagined would occur during our lifetimes. This sort of thing only happens in dystopian movies and novels, right?

For families who live in two homes, the social distancing and potential government imposition of a full quarantine, like those already in effect in Italy and China, brings with it challenges beyond staying healthy, keeping your distance from others, and ensuring you have enough food and toilet paper to get you through the next two or more weeks.

For parents, at a minimum, it also means thinking about:
  • When and how your children should move between homes during periods of social distancing?
  • Should the children bring belongings back and forth? 
  • Is there consensus on who will be allowed near the children during this period of social distancing as well as who each parent will be around to allow for proper tracking if either parent or the children begin showing signs of illness? (Significant others, other children in the household, grandparents, etc.)
  • What is the plan if one parent starts showing signs of illness while they have parenting time? 
  • What is the plan if one parent starts showing signs of illness while they do not have parenting time? 
  • What is the backup plan if both parents show signs of illness at the same time? 
  • What if a child becomes ill? 
  • What if both parents are hospitalized? 
  • Do you both have a list of emergency childcare providers? 
  • Do you both have contact information for doctors and family members who may need updating?
  • Where will the children stay if the government stops allowing free movement? 
  • What technology can you leverage to continue to allow the children to meaningfully interact with the non-residential parent if a full quarantine is put into place?
In the short-term, while free movement is still allowed, to keep a sense of normalcy for your children, if at all possible, it’s probably best to stick to your regular parenting plan with lots of hand washing and sanitizing as the children move between households. If because of a lack of school, lack of childcare, and/or employer expectations it’s not possible to stick to a normal schedule, try to come up with a plan that might meet everyone’s needs for the next few weeks. If you need assistance having these emotionally charged and stressful conversations, reach out to a mediator or co-parenting coordinator who might be able to help you talk through some contingency planning.

The mediators at Skylark are available via Zoom so that we can all continue practicing social distancing while still helping our clients make difficult co-parenting decisions.   Although we always encourage dispute resolution before court action, for anyone reading who might be inclined to let a judge determine your contingency parenting plan, it’s important to know that the Supreme Judicial Court has issued multiple orders limiting access to state courthouses and court facilities.  Visit the court's website for the latest orders.

We hope everyone reading stays safe and healthy, and we encourage a little planning now which could provide some relief in the future from the stress that this type of crisis has left us all feeling. Should a health crisis or quarantine arise for your family, creating a plan now will alleviate the need to do so when things become even more difficult.

Even if you have a plan for this crisis, use this time to consider building into your parenting plan a process for how emergency decisions will be made in the future, and who you will work with if you're unable to reach agreement.  Get to know a mediator or co-parenting coordinator who can be a resource for your family in times of crisis.  You may hope you never need them, and if you do then you'll at least feel like one more thing is in your control at a time when other things may feel out of control.

UPDATE: Additional resources have become available during this crisis:

Seven Guidelines for Parents who are Divorced/Separated and Sharing Custody of Children During the COVID-19 Pandemic

AFCC - Coronavirus (COVID-19) Resources and Information

As courts and government officials deal with this crisis, more and more will issue orders that address how parenting plans should be enforced during stay-at-home requirements.  A few examples have already been issued:

Chief Justice John D. Casey sends an Open letter regarding co-parenting during COVID-19: "Parenting orders are not stayed during this period of time..."

Dallas County Standing Order Regarding Possession Schedule During School Closures

Ohio Department of Health Stay at Home Order which includes a provision allowing for essential travel to "transport children pursuant to a custody agreement."





Monday, February 24, 2020

The Variations of Closeness: How would you draw your marriage over time?

Olivia De Recat created the amazingly simple but impactful image below.  There are multiple types of relationships depicted, and yet many more that could be added. There is beauty in both the simplicity and the depth of the drawing.  On my first viewing I thought of this quote from the movie Fight Club: "On a long enough timeline, the survival rate for everyone drops to zero."  The image reminds us that every relationship is finite, and that is both sad and powerful.

Upon thinking about it more, I realized the drawing also shows how many ways our lives are touched by so many different types of relationships.  While we often try to process our relationships as good or bad, there is no judgment on the quality of a relationship based on its closeness over time.  There are just differences in how we experience our interactions with different people at different times in our lives.

That also reminds me of how many different marriages there are.  As a divorce mediator I am often asked if there are trends that I see in the people that choose to get divorced.  The reality is that every relationship is different, and we're lucky to be close to anyone in our lives even if that closeness varies over time.
View her other work and support the artist by clicking here.

How would you draw your relationships?


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...

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