In the last year there have been times due to the COVID-19 pandemic when the court was closed or significantly delayed.  Even now, more than a year after the lockdowns started, we are experiencing long delays in obtaining court dates.   @thatmediator Imagine there’s no weapons, how would we find peace? ##mediation ##mediatorsoftiktok ♬ Imagine (Originally Performed by John Lennon) - Piano Karaoke Version - Sing2Piano Fortunately, we have an answer for what to do if there is no court. You're not simply on your own, and in fact there are lots of ways to resolve conflict outside of court. Learn more about your options from these previous posts: Divorce Options - an Update for 2020 Replace your cancelled Court Hearing with a Mediation A Template for Avoiding Court You're Thinking about Conflict All Wrong: Is there a better way to think about conflict;  a model which can free us from our fear of conflict? How does a Divorce end? 😡, ☹️, or 🙂

While the Hippocratic Oath is no longer required for doctors, we often hear the principle attributed to that ancient Greek oath for healers to "first, do no harm."  The translation is actually closer to "I will do no harm or injustice to them," but the sentiment is clear.  When trying to help someone, your first obligation is to not make things worse.   Today, I attended the third in a series of public forums held by the Child Support Guidelines Task Force giving people the opportunity to comment on what should change in the 2018 Massachusetts Child Support Guidelines.  What struck me about the testimony is that very few people commented on the guidelines themselves.  Rather they focused on the perceived impact of the guidelines and of the courts on family conflict.  Almost universally, the commenters suggested that changes were needed because the experience in court impoverished families, increased conflict, and hurt children. Whether calling for a ...

by Beth Aarons When a former family law colleague of mine told me about Collaborative Law Process sometime around 2008, conceptually it sounded much like a series of traditional four-way meetings, but with a therapist present.  As a fledgling dispute resolution process, I saw no harm in adding this skill set to my professional tool kit to bolster the transition of my practice out of litigation and into dispute resolution. It was not until several years after I had taken the Introduction to Collaborative Law training that I experienced the actual magic of Collaborative Law Process.  The family had been slowly imploding for years and now everything was coming to a head.* Mom and Dad still occupied the same house but had stopped speaking to each other years earlier after Dad had an infidelity.  They had decided to divorce but not tell the kids until there was a plan to separate into two households.  Mom had lost her job and Dad’s salary was not enough to cover two sets ...

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 o...

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 disc...

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 collaborati...

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 ...

One of the principles of collaborative law is a team approach to joint problem solving.  The team approach to joint problem solving has numerous advantages: We're smarter together: each team member brings a different background and expertise to the team.  As the saying goes, a jack of all trades is a master of none.  On a team, each person can be a master of their trade and rely on others for the knowledge they can't individually maintain.  In addition, as humans, professional team members sometimes make mistakes.  When we are open to feedback from other professionals, there is a greater chance that mistakes are minimized and corrected, ultimately offering a better service or product to the clients. We're better together : each team member brings different experiences to problem solving.  Our experiences shape our ability to empathize and be creative in problem solving.  Having different experiences at the table increases the likelihood of spo...

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 ...

Guest Post from Valerie Qian* Cultural competence and sensitivity to the needs of diverse clients are an essential part of being an effective and successful professional. My father-in-law recently underwent surgery to remove a kidney stone. It happened at a big hospital in New York City which, I understand, has an excellent urology department. As a first-generation immigrant from Shanghai, my father-in-law speaks limited English. After the surgery, while he was still slightly groggy from the anesthesia, a surgical resident who spoke some Chinese told him, without an interpreter, that the surgery went well and that 90% of the stone had been removed. A week later, my husband found out from the surgeon who actually performed the surgery that the stone was still there in its entirety and had not been removed, and my father-in-law needed a second surgery. My father-in-law went from thinking that the stone had been mostly removed, and the surgery successful – to being told that the su...

It's not unusual to hear a lawyer describe themselves as collaborative.  I've also heard "I haven't taken the Collaborative Law training, but I certainly consider myself collaborative!" But what do they mean by that?  Does it mean they offer collaborative law as an option to their clients, or just that they're willing to start a case in out-of-court negotiations and see where it leads?  Does it mean that they understand the collaborative law principles, or simply that they try to be civil with opposing counsel? Civility and Collaboration are not the same thing.  In fact, many lawyers think of true "collaboration" as a dirty word.  I imagine them picturing the World War II signs labeling French civilians as "collaborators" and shuddering at the thought.  The problem with this mentality, especially in family law, is it means that you are thinking of the opposing party (and their counsel) as the enemy.  You might be civil to an enemy,...

Improving Negotiations using Collaborative Values: A Checklist of Tools by Beth Aarons, JD, MSW , Jody Comins, MSW , and Justin Kelsey, JD On April 27, 2018, we presented to the Massachusetts Collaborative Law Council ’s annual forum at a workshop entitled: Using Collaborative Values to Shift Parties from Litigation to Cooperation . The theme of this workshop was to take collaborative values and discuss how we can use these tools in all of our cases: negotiated, litigated, or mediated. This is not a unique idea. David Hoffman has spoken and written about “cooperative negotiation” and Lainey Feingold has written and practiced “structured negotiation,” both of which share many overlapping tools that are used in the official Collaborative Law Process, with slight exceptions. In fact, we would argue that these negotiation processes have more in common with Collaborative Law than they do with litigation or more traditional attorney negotiation. This leads us to the question t...

post by Jennifer Hawthorne In most families, when spouses decide that getting a divorce may be the best road forward for their family, one of the first questions that almost universally causes concern is what lifestyle will my family live after the divorce. Will there be enough money to support two households and keep us comfortable and even relatively close to the lifestyle we live now? In Massachusetts, the two basic statutory means for one spouse to provide support for the other’s household after a divorce are child support and alimony. There is a third option that essentially combines the two into unallocated support, which you can read more about by clicking here . Child Support changes with new circumstances: If there are children involved, discussions with professionals will usually start with child support which is based on guidelines that dictate a specific formula be applied resulting in a presumptive amount of support. During such a discussion, you will learn that ...

Skylark Law & Mediation, PC is excited to welcome Jennifer Hawthorne to our family of collaborative practitioners.  Jennifer is a trained mediator and collaborative family and probate attorney with a background in financial services.   She is the mother of three wonderful children and a new puppy.  She is also on the Board of Directors of the  Massachusetts Council on Family Mediation . Here is what Jennifer would like to share about her journey to Skylark: My path to working as an associate at Skylark Law and Mediation has been a little unusual. Many times, the career path for a family law lawyer/mediator goes something like this this: For me, so far, my path has been a little different: For some, this may seem like a backward step in the “normal” path of a law career. For me, if feels like the most natural step down my path.   Opening my firm had nothing to do with feeling like I had reached the point in my career where I was ready...

Skylark Law & Mediation, PC will soon be moving to Southborough, Massachusetts and it's an opportunity for us and other like-minded professionals.  Our new home will be a building in downtown Southborough, called  the Collaborative Outpost , which has a particular mission: To Provide an Enjoyable Work Space for Collaboratively Minded Professionals ACCOMPLISHING THE MISSION: Justin Kelsey , who will also be a manager of the Collaborative Outpost, first opened his law firm with Matthew Trask as Kelsey & Trask, PC in 2008.  Since that time Kelsey & Trask, PC has evolved into Skylark Law & Mediation, PC , a leader in the resolution of family and probate disputes.  Justin is active in the mediation and collaborative law communities and has long dreamed of opening a shared work space that could expand on the model that has worked so well for Skylark (now a firm with five attorney/mediators). The Collaborative Outpost is the realization o...

There are three typical ways a divorce process can end: Reconciliation, Judgment, or Settlement.  Very few cases reconcile once a divorce process is started, and very few cases go all the way to Judgment.  In other words, most divorce cases settle, either before going to court, or at some time during the court process.  But settlement takes lots of different forms , and those different forms can have a significant impact on whether people feel good about their settlement or not. Many clients and potential clients have asked me if there is any statistical research on outcomes for different processes, or even whether there is any data on whether a particular process is considered more "successful" than other options.  Unfortunately, I am not aware of any large scale study comparing Mediation, Collaborative Law, Arbitration, Self-Help Negotiation and Litigation, or even anything close to comprehensive.  There is some research comparing mediation and litigation...

There is a story that Willie Sutton, a famous bank robber, once responded to a reporter who asked "Why do you rob banks?" with the simple answer "Because that's where the money is!"   While that story is probably made up , it reminds me of the reason that most people go to court to get divorced: because that's where the paperwork has to be filed. Of course, if divorce was as simple as filling out the paperwork then there would be no need to write anything further.  However, the act of getting divorced involves numerous aspects of a couple's lives including finances, parenting, communication, loss of a relationship, forming of new relationship dynamic, etc. One Court's Answer: One court in San Francisco, California has recognized this problem by "strongly recommending" that people filing with the court in family law matters first consider out-of-court dispute resolution options: "The San Francisco Superior Court and its Famil...