WE HELP FAMILIES RESOLVE CONFLICT PEACEFULLY


Thursday, July 18, 2019

It's time for less BUTs in mediation

Use "and" instead of "but".  It's a simple change that in conversation and writing can mean a world of difference.  That difference is inherent in how we hear and read the word "but". 

"But" has a negating connotation, implying that everything that came before it isn't true.

I think this is a valuable lesson, but it's not revolutionary.  
I think this is a valuable lesson, and it's not revolutionary.

Which one of those sentences gives you the impression I think both things are true (which I in fact do believe)?  Obviously the "and" changes the way we read that sentence.  In fact, you only have to search google for the phrase "and instead of but" to see that many people have shared this idea before me.  It's not revolutionary, and it remains a valuable lesson, especially for mediators and negotiators.

Frankie, a contributor on Medium, highlighted that the importance of making this change is rooted in the fact that two things can be true at once, even when sometimes those things seem at odds.  Imagine how powerful this idea of dialectic truths can be in mediation:

I love you but I don't want to be married anymore.
I love you and I don't want to be married anymore.

The "and" makes the "I love you" seem genuine.  It's another thing that's true despite the second truth.  Now imagine how different these two sentences might be received in a divorce mediation.  Just knowing the difference could significantly change the tone of a conversation.

As mediators we are often modeling good communication for our clients, and this is another opportunity to do that.  In addition, it's often important to validate our clients concerns as part of effective active listening.  If we, as mediators, acknowledge a concern, and redirect with the word "but" we are potentially signalling to that client that we don't think that concern is important:

I hear that you have concerns about being equal parents, but 
I think it might help if we discuss the specifics of the parenting schedule.

I hear that you have concerns about being equal parents, and 
I think it might help if we discuss the specifics of the parenting schedule.

The first option implies that the mediator is trying to change the subject, while the second option, with only the one word difference, suggests that the mediator believes the specifics could help address the parents concern.  The mediator is redirecting the client to a more specific topic that might help them make progress, and at the same time validating the concern rather than dismissing it.  It can both be true that the client has parenting concerns, and that addressing the schedule could alleviate some of those concerns.

This has become one of the tips & tricks we share in mediation training and we encourage you to try it out in your personal and professional life.

If you're interested in learning more about upcoming mediation trainings you can visit Divorce Mediation Training Associates' information or registration page.

Thank you to Amy Martell of Whole Family Law & Mediation who first brought this issue to my attention at a collaborative law training.

If you're interested in learning more about upcoming collaborative law trainings you can visit Massachusetts Collaborative Law Council's Intro Training information and registration page.



Wednesday, July 3, 2019

Innovation in the Family Court: Real & Imagined

Some Judges have long recognized the need for what Frank Sander called the "multi-door courthouse," a place where people in a dispute can find multiple ways of resolving that dispute, not just litigation. In a concurring opinion in the Cooper v. Keto case, Massachusetts Appeals Justice Brown pointed out that "Litigation should be the last option, not the first."  He also quoted a retired Judge's article in the Boston Bar Journal lamenting whether lawyers were adequately addressing this issue:
"'technical competence' of lawyers to litigate is greater today than ever, but lawyers often 'fail to consider whether doing it is useful'."
The good news is that many courts, especially family courts, are starting to recognize this need, and there are a more and more pilot programs taking place that provide opportunities for families to find alternative ways to resolve their conflict. 

In Massachusetts, there is a program in the Hampshire County Probate and Family Court called the Family Resolutions Specialty Court which is offering families another way. The FRSC is a voluntary option presented to families with custody or parenting disputes, and is very similar to the collaborative law model (with some notable differences).   The family is provided a mediator and an attorney for the child or children, and a Judge is available to meet with the parties in informal settlement conferences.  More details about the program are available on the Mass.gov site and in these two articles reviewing the FRSC program:

Boston Bar Journal: The Family Resolutions Specialty Court: A Community-Based Problem-Solving Court For Families in Conflict in Hampshire County

IAALS Blog: Massachusetts Family Resolutions Specialty Court: A New Alternative

The IAALS also reported earlier this year on some important steps taken by the Conference of Chief Justices to show their commitment to a less adversarial family court:

IAALS Blog: The Conference of Chief Justices Adopts Guidelines to Make Family Courts Work for the Families They Serve

The Guidelines rely heavily on a report from the Family Justice Initiative which showed that the family court system was not only inefficient but possibly discouraged parties from reaching uncontested settlements.  The findings included:

  • "72 percent of cases reviewed involved at least one self-represented party;
  • Most cases are uncontested, but contested and uncontested cases took about the same amount of time regardless;
  • Many current data systems do not provide judges, lawyers, mediators, and others with enough information to allow them to move cases through the system in an efficient way to help families get the resolution they need."

Improving case management systems, especially for uncontested matters, will obviously help families reduce stress and cost, and the courts can and should go even further, encouraging the use of mediation and collaborative solutions when possible.  The Principles for Family Justice Reform focus on joint problem-solving, triage, training and improving access to information and data.  The experts who are often needed in a divorce are people with mental health, financial, or child-related expertise, rather than legal expertise.

Family conflict should not be the purview of lawyers alone and it is time to question whether lawyers should even be the gatekeepers when family conflict arises. Indulge me for a minute and in the spirit of John Lennon:

Imagine, if a divorcing spouse, a person typically in pain and under emotional stress, was met at the courthouse first by someone trained in triaging their needs and in empathetic conflict resolution, instead of an administrative clerk;

Imagine, if the website for the court encouraged mediation first, and described the benefits;

Imagine, if uncontested divorces could be finalized without a Judge's signature (like marriage certificates);

Imagine, if every dispute involving children included the opportunity to involve an expert in child development;

Imagine, if every dispute involving complicated financial issues included the opportunity to work with neutral financial experts;

Imagine, if we started considering the court as a place people go to make peace instead of a place they go to make war.

Now you may say that I'm a dreamer, but I'm not the only one. 

Tuesday, July 2, 2019

Should Alimony Recipients be Able to Save for Retirement?

Bulletin Board - Should Alimony Recipients be Able to Save for Retirement?
In Massachusetts, Alimony is defined by the Alimony Reform Act of 2011 (the "Act").  We've previously explored how the Act outlines "need" and the case law that has developed around that definition: Alimony: You Get what You Need!  The question we're exploring today, is whether or not this definition of need includes saving for the future, or retirement.

Chapter 208 Section 53 of the Massachusetts General Laws states that:
"(a) In determining the appropriate form of alimony and in setting the amount and duration of support, a court shall consider: the length of the marriage; age of the parties; health of the parties; income, employment and employability of both parties, including employability through reasonable diligence and additional training, if necessary; economic and non-economic contribution of both parties to the marriage; marital lifestyle; ability of each party to maintain the marital lifestyle; lost economic opportunity as a result of the marriage; and such other factors as the court considers relevant and material." (emphasis added)
The language in bold above does seem to give some potential argument that the ability to save (if that was common in the marriage) is relevant to the question of what the recipient "needs."  Oftentimes the payor will continue to have the ability to save for retirement, so arguably having alimony payments low enough that a recipient cannot save creates a disparity.  The Young v. Young decision, explored in this post, arguably limits future saving if it wasn't part of the marital lifestyle (limiting inclusion of future increases in a payor's income), but still doesn't address this issue directly.

There is one pre-Act case (2004) that addresses this issue, and the question that remains is whether or not that case is still good law, given the new definition in the Act.  Cooper v. Cooper was an an alimony and child support mod where the appeals court felt the lower court went to far with the alimony increase stating:
"To the extent that the amount of the award relies on the judge's finding that it was made in part to 'ensur[e] future continuity of the former marital station,' it also was improper. An alimony award that exceeds current need, so as to permit accumulation of assets or savings for the future, may be appropriate only when that award is made pursuant to G. L. c. 208, § 34. 'Under G. L. c. 208, § 34, alimony and property division are interrelated. . . . Need is a major element, but obviously not the only one, in an equitable distribution of property under § 34.' Rosenberg v. Rosenberg, 33 Mass. App. Ct. 903, 904 (1992)." 
While Cooper is a pre-act case, it does give a clue as to other ways to address retirement needs, besides alimony, by referencing the property division statute.  Arguably if the alimony payor has a greater ability to save for retirement than the alimony recipient may need to have a greater proportion of the existing retirement in the division of property to account for this disparity.  Of course, this is only an option when there are sufficient assets to divide at the time of the divorce, and the goal of the court is not to create financial equality between the parties indefinitely (again as demonstrated by the Young case), but rather to equitably divide the property at the time of the divorce, whatever that means.

So ultimately, the answer to this question is outstanding, and we may eventually receive additional guidance if someone takes the issue up on appeal.  In the mean-time, divorcing spouses can continue to be creative about how they argue about, and resolve, disputes relating to the equitable way to account for their needs today and in the future.  Mediation and Collaborative Law encourage spouses to expand the conversation in these types of ways and address short and long term goals, to resolve conflicts today and also prevent them from resurfacing in the future.

For more information about AlimonyMediation, and Collaborative Law visit Skylarklaw.com.

For more information about retirement division visit GrayJayEndeavors.com.

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