WE HELP FAMILIES RESOLVE CONFLICT PEACEFULLY


Monday, April 13, 2020

Are Mediators in Massachusetts Certified?

I get this question from lawyers a lot who are wondering if a particular training will "certify" them to be mediators. In fact, I just received an inquiry today related to the upcoming 40-hour online mediation training provided by Divorce Mediation Training Associates (more info below):

Are Mediators in Massachusetts Certified?

What Mediation Training results in a Certification?


In Massachusetts there is no government certification or license provided by the Commonwealth certifying mediators. There are some court rules and statutory provisions, however, that require a 30 hour training for certain activities and I believe this is where the misconception about "certification" stems.  The court rules and statutes that require training are:
  • Under the mediator confidentiality statute, Massachusetts General Laws, Chapter 233, Section 23C, mediators who have taken at least 30 hours of training and meet other requirements, have confidentiality protections in their client communications and work product. 
While these are state requirements, training does not "certify" mediators under these provisions; training simply qualifies mediators to meet these requirements.

Some private organizations do provide certification for mediators, including the Massachusetts Council on Family Mediation, Inc. Those private certifications often have more stringent requirements. For example, MCFM requires an additional 60 hours of training (on top of the 30 hour basic training) as well as a certain level of experience to qualify for their certification. For more information on MCFM's requirements read: How does a Mediator become Certified?

If you see a mediator claiming to be certified you should ask what organization has provided their certification and what are the requirements for obtaining that certification because, not all certifications are created equal.

If you're interested in more reasons to take mediation training read: Top 5 Reasons to get Trained in Mediation.

If you're ready to get trained, Divorce Mediation Training Associates is holding a 40 hour online Mediation Training that not only qualifies for the three Massachusetts state requirements above, but goes beyond and meets the national standard of 40 hours of training.  The training begins on April 22 and will take place over nine mornings from 8:30 AM to 1:00 PM.  Learn more and Register here.



Saturday, April 11, 2020

A Template for Avoiding Court

"We must come to see with the distinguished jurist of yesterday that

'justice too long delayed is justice denied.'


Seeking and obtaining the assistance of the courts in resolving disputes is a right afforded the residents of our republic, but it is not always administered justly and equally.  Many have been denied those rights over the years due to discrimination or economic limitations, and it is a privilege of access that many others have come to take for granted.

The COVID-19 crisis has highlighted just how necessary court access is in emergencies, and also delayed significantly the access to courts for non-emergency matters.  Unfortunately, what constitutes an emergency is very limiting, and for many this means bearing the stress and trauma of ongoing litigation for much longer than even the normal lengthy process.  Now more than ever is the time to consider alternatives.

The most common rejection of mediation, and other forms of out-of-court dispute resolution, is that the other side wouldn't agree or participate in good faith.  As with anything else we don't control the decisions of other people, and we must focus on what we do control, our own actions and reactions.  So if you want to try mediation, or another forum, then ask yourself whether you've done everything you can to make that possible.  In order to facilitate that process, we are sharing a sample letter and explanatory flyer (links below).  We're encouraging you to consider using these templates to find the right forum for your case:

Download: Sample Letter suggesting use of out-of-court dispute resolution

Download: Sample Flyer describing the options for facilitating out-of-court dispute resolution

Outside of Court you have other forum options including:
The sample flyer includes a short description of each of these forums, and the sample letter provides a template for sharing your interest in one or more of the options.  

We encourage you to consider how you can affect your current situation and what action you can take.  When it comes to seeking ways to resolve your conflict, I'm reminded of the lottery tagline "you can't win if you don't play."  If you don't at least ask the other side to try mediation, then you can't keep saying they are the reason you haven't tried it yet.

For more templates to assist in the settlement of divorce matters in Massachusetts, visit the Gray Jay Endeavors, LLC divorce forms website.



Tuesday, April 7, 2020

In Mediation, Sometimes a Number Isn't a Number

In many settlement negotiations, the two sides narrow their disagreement to a small gap in their positions, a gap so small it pales in comparison to the total amount of money being discussed.  This happens often in divorce mediation, where clients threaten to blow up a multi-million dollar divorce settlement over the last $5,000 disagreement.  Why would anyone do that?  Why would either side let everything fall apart over an amount they'll obviously spend on attorneys if they continue fighting?

The reason is that it is seldom about the money, and it is often about what the money represents.  Those last few dollars in a negotiation often represent winning or losing; they represent the potential for acknowledgment or just another rejection; they represent all the giving in that got us here thus far, and the loss that goes with it; and in a divorce those last few dollars potentially represent the true end of the relationship and the last chance to hang on.

Our friend and fellow mediator, David Kellem, wrote an excellent article entitled the Price of Peace where he describes asking a client stuck on the last $15,000 of a lengthy and painful negotiation from which both parties had already moved on to new relationships: "how would it feel to you if this afternoon you went home to Diane and instead of telling her how awful your wife is, you could tell her that the case is settled and that life can move forward?

David broke the cycle by helping his client see that regardless of what the final number was (within reason), the value of peace and a finalized divorce was something he had to weigh by his own standard of value.  This is a value only clients can choose, and is often overlooked because it doesn't have a legal or financial value.  Only a client can decide if the price of peace is more important to them than the cost of the fight.

Often the number that clients are left disagreeing about is not going to make or break either of them.  The remaining disagreement often stems more from a feeling of "right"; about where they are each coming from and what that number might represent to each of them.

Instead, of focusing on those feelings of loss, I encourage clients to think about that number, as much as possible, as just a number that will allow them to finalize their conflict. I ask them to recognize that regardless of where they land it's not going to make either of them whole.  Unfortunately in a divorce no-one leaves whole, but it is possible to leave having found enough peace to move on and start healing.


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:

How to Talk to Your Children About the Coronavirus (COVID-19)

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.



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