Thursday, May 19, 2016

Think Ahead and Prevent Conflict! Mediation as a Planning Tool

Post by Julie Tolek*

Mediation is often referred to as “facilitated negotiation” or a form of voluntary dispute or conflict resolution. Using these terms to describe mediation automatically brings to mind scenarios where couples are fighting over a problem or situation that has already happened. But what if we turned that process around and reversed it?

What if we mediated a plan before something bad happens?

Using mediation as a planning tool to help facilitate negotiation and communication before something bad happens can be equally as valuable (and sometimes even more so) than applying mediation to solve a current problem. After something bad happens, emotions are usually raging, parties are sensitive, often angry, and sometimes even vindictive. If you have ever tried to solve a problem (or even have a conversation) with someone who is in a bad mood or having a bad day, you already know it’s like talking to a wall.

Now imagine if you try to plan for potential issues before they happen, when people are excited and in a good mood, have a positive state of mind and not stressed with the burden of a “problem” to solve. The conversation is much more likely to be productive and open to anticipating future problems and creating a plan for solving them.

You may be saying, well what the hell are we planning for anyway? 

I am talking about using mediation as a planning tool for things like prenups, family estate or elder planning, business succession, etc.; issues where the nature of the topic is one of planning for the future BUT the typical execution of the planning process is usually with two or more people starting on opposite sides of the table, instead of on the same side.

How does mediation help in a “pre-problem” planning process? 

Keeping the common goal in mind is probably the most important theme in all of the benefits of mediation – everything comes back to the parties’ common goal(s). When things are murky or buried in garbage of resentments, remembering the common goal is always a good way to reboot. The benefits I have listed below all support the process of maintaining and understanding a common goal in planning. 

Benefits of using mediation for planning:

1. Filter out the BS:  Mediation in general allows for parties to keep in mind a common goal and come back to that whenever they get stuck. Sometimes details are important, but there is a time and place for everything. In the middle of a heated argument, details such as who took the family dog for the weekend can seem like the end of humanity if not solved. Parties may dwell on this one issue and cause the problem solving process to come to a full stop. The real issue may not be who took the dog for the weekend but that one person feels left out of the decision making process and thus harbors a resentment for the entire situation, and then uses the dog as an outlet for those feelings.

When given the opportunity to mediate a schedule for the dog before the issue of who took the dog arises, an actual plan with a schedule is more likely to emerge. This happens because the parties are not at the point where they are harboring vindictive or other emotional baggage that might get in the way of the actual goal, which is planning for the dog’s weekend schedule. By planning before hand, they can stay focused on the goal and more easily come up with a solution.

2. Empowerment. Using mediation as a planning tool allows the parties to take control of their own situation and address issues before they happen, allowing them to steer the process in the direction they want. The feeling of being in control is naturally empowering. People who are empowered maintain a confidence in their decision making, which can lead to better strategic decision making and planning, without other emotional garbage to blur the process.

3. Emphasis of being a team. By coming together to discuss a plan for the future, parties can work together toward a common goal, instead of coming at it from opposite sides. A feeling of cohesion and that parties are “in it together” leads to a more comfortable, productive, and even exciting planning process. Prenups and estate plans are definitely not the most romantic or exhilarating things to talk about, but knowing that you have someone on your side, planning with you and having open discussions, it becomes easier to do. 

4. Mediation is voluntary: Because mediation is a voluntary process, the mere fact that parties are interested and actually want to enter into a mediation setting shows a lot about the mindset of the participants in relation to problem solving: they probably already believe in and exhibit the desire to keep common goals in mind, want to work as a team, and are empowered to do so. 

5. Clearing up confusion or ambiguity: Mediating a plan for the future allows parties to ask questions and get clarity through thoughtful discussion rather than intense arguments after the fact. By clearing up ambiguities and asking and answering questions during the planning process, the result will be a better and more accurate plan of their intent. Being able to ask and answer questions will also bolster the feeling of teamwork and keeping common goals in mind, and create a better understanding of the plan over all and of each person’s individual concerns as well.

6. You can still get advice from an attorney at any time. During any mediation process, there is always an opportunity to have an attorney involved to give advice on individual interests and address legal issues that might not be answered through mediation. This again empowers parties to be their own best advocates first and foremost. 

Mediation is well known as a powerful tool to solve conflict and problems after they happen, but it often gets ignored as a pre-conflict planning tool. Many of the same benefits apply in either situation, but by using mediation to plan before a situation arises, you can reap the benefits ahead of time by making sure you and whomever you are planning with are on the same page, continuing to be empowered to create your own plan together, keeping and creating common goals, and creating a cohesive plan that lasts.

*Julie is an Associate at Skylark Law & Mediation, PC and runs her own practice, Think Pink Law.  Julie's practice includes family law & divorce representation, firearms licensing & NFA trusts, estate planning & probate, and adoptions.

Tuesday, May 17, 2016

Announcement: New Parent Education Attendance Rules in Massachusetts for Divorcing Parents

Taking the course is a prerequisite
for getting divorced in MA.
As of May 1st, 2016 Massachusetts has announced and ordered new changes to the Parenting Education programs for all divorce cases that involve minor children (Standing Order 2-16). The court  has ordered that all parties in a divorce action must register with an approved program within thirty days of service of a Complaint for Divorce and prior to the hearing on a Joint Petition for Divorce. (a list of the approved programs can be found here)

Once registered parties must file the "Affidavit Confirming Registration at Parent Education Program."  This is a new form and timeline, but the programs themselves are not new.

This is not a program that teaches people how to parent their children, but rather a program designed to help divorcing parents understand what the challenges their children will face because of the divorce.  It is ideal that the program be taken as soon after the parties decide to divorce, because it will help them prepare for questions and concerns their children may have about the divorce.  The court has enacted new rules around this program, presumably to ensure that parents register and attend this program as early as possible in the process.

If the parties seek to waive attendance to the Parent Education Program, they must file a “Motion to Waive Attendance at a Parent Education Program”. Waivers may be only granted for very specific reasons and the court may elect to deny the Motion.  The court may also permit a use of five-hour DVD or an online program upon filing of a “Motion to Permit Completion of Parent Education Programs via DVD."  To use the DVD the party must have a reason they are unable to attend the program.

The parties each pay $80.00 to the provider in advance of the program to offset cost of material, facilitators, and program administration. The same fee applies to the DVD program as well. If the parties are unable to afford the program then they have the option to file an “Affidavit of Indigence and Request for Waiver, Substitution or State Payment of Fees and Costs”.  If the waiver is allowed it would reduce the rate of the program to $5.00.

An uncontested divorce hearing on a Joint Petition or a Complaint may be scheduled if the parties file an affidavit confirming their registration for the program. A Pre-trial conference may be scheduled in a contested hearing as well so long as the parties complete the program prior to the Pre-trial Conference. No Pre-Trial or Trial will be held without the court receiving a Certification of Attendance from an approved program from each party unless the Court has waived the requirement.

Monday, May 16, 2016

Now, More Than Ever, Arbitration Is the Way to Go!

Guest Post by Attorney & Arbitrator Anthony C. Adamopoulos*

A recent decision of our Appeals Court, Gravlin v. Gravlin, is good news for those facing divorce.

For collaborative divorce attorneys and divorce mediators, the decision confirms that arbitration is the viable alternative to court litigation for resolving a single issue or even taking the place of a full court trial.

In Gravlin, the Appeals Court acknowledged:
“… arbitration has long been recognized as a valid means of resolving disputes between divorcing parties.”  
This blog's primary author, attorney/mediator Justin Kelsey, has often praised the value of using alternatives to divorce litigation; with Gravlin, the Appeals Court has stamped an imprimatur of sorts on divorce arbitration.

While arbitration is available to replace a public court trial, I encourage the use of collaborative divorce or mediation to “work out” divorce issues, as discussed in previous posts on this blog. However, if collaboration or mediation reaches a deadlock (a stalemate on one or two remaining issues) then it is time to for divorce arbitration.

When parties follow a simple process, the Appeals Court promises a “… strict standard of review [that] is high[ly] deferential…” to an arbitration award. “Typically, no inquiry is made into whether the arbitrator made erroneous findings of fact or conclusions of law.” Unlike public trials, the arbitrator’s award is, in most cases, beyond appeal and final.

What does the simple process involve? The process requires that:

  • Respective counsel advise each party. 
  • Parties freely enter their Agreement to Arbitrate.
  • Parties knowingly waive a court trial and submit to arbitration.

If there is any trial court review of an arbitration award, the review will be limited to determining:

  • The arbitrator’s award was confined to what he/she was asked to decide;
  • The award did not  give relief that is prohibited by law;
  • The award is not based on fraud, arbitrary conduct, or procedural irregularity in the hearing.

(In my experience, the selection of an experienced, knowledgeable arbitrator will result in a positive review and enforcement of the award.)
For collaborative attorneys and mediators, Gravlin is another reason to recommend arbitration for settlement stalemate.

For parties facing divorce or divorce stalemate, there is an alternative to a costly, lengthy and publicly litigated trial – arbitration.

*Anthony is a divorce arbitrator, collaborative attorney and divorce mediator. His office is in Salem.

© 2016 Anthony C. Adamopoulos

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