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 the...

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. Ou...

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. Register for Mediation Training 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 pote...

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...

In 2014, we didn't know yet who would be running for president in the 2016 election, 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 understand...

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 cha...

In Divorce nothing is as simple as it may seem at first. This is just one of the reasons it's vitally important to obtain good financial and legal advice during the divorce process. Social Security is an example of how something that seems simple can actually be a very complicated discussion in divorce. Consider the question: Can Social Security benefits be transferred or divided as part of a divorce? The simple answer is no. The more complicated answer is that while the benefit itself cannot be transferred, Social Security does provide for benefits for divorced spouses in certain circumstances, and many courts have also ruled that the amount of a Social Security benefit can affect other determinations. For example, in Massachusetts the case of Mahoney v. Mahoney , held that the court could consider the Social Security benefit owed to the husband in that case when determining the equitable division of the wife's retirement benefit. In Mahoney, the trial Judge awarde...

How long is a marriage? It’s a seemingly straightforward question, but divorce and alimony laws over the years, and the complexities created by overuse of the courts, have complicated the issue. The Balistreri case , which came down from the Massachusetts Appeals Court on June 29, 2018, clarifies the question somewhat. The alimony statute defines the length of a marriage as “the number of months from the date of the legal marriage to the date of service of a complaint or petition for divorce or separate support.” M.G.L. c. 208 §48 . Balistreri addresses situations where there may be more than one complaint for divorce or separate support floating around. This may be because of hastiness to go to court before other options have been explored, which then lead to a resolution of an issue, so that the complaint is abandoned and does not result in a judgment. It may also be because parties may first file a complaint for separate support before following through with a complaint for div...

Divorce Mediation Training Associates  has just announced that long-time trainers John Fiske and Diane Neumann will be stepping down and, starting in 2019, Justin Kelsey (of Skylark Law & Mediation, PC ) and Ellen Waldorf (of eWaldorf Mediation ) will be the new training team. Justin has taught with John at the MCLE Family Mediation Workshop for many years, and Ellen has been a part of past DMTA trainings.  Both Ellen and Justin are excited at this opportunity to continue the excellent legacy of DMTA, and carry these trainings into the future. Justin and Ellen will be participating in Diane and John's last DMTA training next month, starting on October 9.  Click here for more information or to register. To read the full press release from DMTA visit here.

I recently discovered Reply All , which is a podcast that explores interesting and amazing stories about the internet.  I've been listening to past episodes and today I discovered Episode #2: The Secret, Gruesome Internet For Doctors , which focuses on the existence of an app for doctors called Figure One.  Figure One is essentially an Instagram of gruesome photos of bodily diseases and injuries posted by doctors, potentially for educational purposes but mostly just for story sharing.  What's really interesting about this app is how normal it seems to doctors and how abnormal/gross/scary it is to everyone else. There are professions, like soldier or doctor, that deal with death and the fragility of life on such a regular basis that it becomes normal to them.  This creates a disconnect between what feels normal to a doctor and what feels normal to a patient.  The doctor has faced the absurdity of death in a way that the rest of us try to remain igno...

Divorcing spouses that choose outside-of-court dispute resolution, like mediation or collaborative law , often list privacy as one of their primary reasons for choosing to avoid court.  This may seem obvious when thinking about the publicity around celebrity divorces  but anyone having their dirty laundry aired publicly can be damaged both emotionally and financially.  Below are some precautions that practitioners and clients can take to protect private information in divorces, even if they're not a celebrity. 1.  Protect Personal Identifying Data:  The court process in many states is public (in Massachusetts this includes hearings, most court documents, and trials), however there are some limitations on what information is public.  Certain documents, such as the Financial Statements, are typically impounded, meaning the public does not have access to those documents and they are only available to court personnel, parties and their counsel. ...

The more I write and speak about mediation, the more opportunities I have to hear from people who still have questions about how it works.  Recently one attorney on LinkedIn asked me about whether there are rules for financial disclosure in mediation like there are in court .  This is, in fact, a common complaint about mediation; that many mediators don't require the parties to share information that the same parties would have to share in court.  Specifically in Massachusetts there is a rule, called Probate and Family Court Supplemental Rule 410, which requires the sharing of certain documentation in a divorce case within the first forty-five days of the case. Should mediators be enforcing this rule and requiring financial disclosures in a non-litigated case? I know mediators who would answer this question yes and others who would answer no.  My answer is no, mediators should not be enforcing financial disclosure (and I explain why below).  That answer trou...

Very few divorce cases actually go to trial.  Even cases that start out with both parties intending to litigate, or "have their day in court", usually settle.  I've heard many litigators argue that since most of their cases settle anyway, the court process is better than mediation because it offers more protection to the participants.  However, there is a serious problem with settlements that happen during the litigation process:  they are rushed and people often feel pressured into signing at the last minute. Despite the fact that the court process of a divorce typically takes longer than a mediation, the court process has a lot of what I call "hurry up and wait."  The litigation process typically involves long periods of waiting for deadlines to pass and for the next court hearing and then a flurry of activity right before the court hearing is scheduled.   Then, if that flurry of activity doesn't result in a settlement you're back to waiting. For e...

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 col...

In response to our recent article,  I'm in Mediation, do I need a Lawyer too? , mediator  Stephen G. Anderson asked on twitter: We though this was a great question, so here you go Stephen: I've hired a Lawyer, do I need a Mediator too? Even though many mediators are lawyers, mediators perform a very different service than lawyers.  One of the first things I tell my mediation clients is that, although I have a base of legal knowledge to draw from when assisting them, I am not acting as their lawyer when I am mediating.  But if you already have a lawyer, would you want a mediator too?  If you want to resolve your dispute privately, with less cost, and more control, then the answer is quite simply: YES. Because the mediator role is different than the role that your lawyer serves there are numerous benefits to hiring a mediator  to work with you and your lawyers, and some risks as well.  Below is a summary of the pros and cons: Benefit...

One of the advantages of mediation is the flexibility of the mediation process.  For those people whose conflict includes multiple issues, as is often the case in divorce mediation, skilled mediators can adapt and assist with communication, goal-setting, problem-solving, and in some instances even transformation of a relationship. To allow the mediation process to adapt in this way we sometimes have to look at options for meeting that are unconventional to help people see their issues in a new light.  At Skylark Law & Mediation , we have two conference rooms that are very different for exactly this purpose.   One conference room is more business-like and is more appropriate for discussing financial and legal issues.  Our other conference room is more casual, including pictures of my children on the walls.  I find that clients usually feel this setting is more comfortable for discussing parenting disagreements, or communication issues. Meeting on...