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...

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...

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...

Guest post from Rackham Karlsson. * A man goes to the doctor with chest pain. The doctor finds a small growth next to his heart. The growth can be removed, but it’s a very delicate operation due to the location. The doctor offers the man the choice of two surgeons: Surgeon A is highly specialized. She has extensive experience with this type of surgery and has a tremendous success rate. “However,” the surgeon says, “Because I’ve chosen to focus my work on this type of surgery, there is a chance that we would want to bring in another surgeon if something goes wrong during the procedure. I don’t expect it, but it could happen.” Surgeon B is a generalist, a Swiss Army knife of surgeons. He has some experience with this type of surgery, but it’s not the focus of his practice. “I can handle any situation that comes up during the surgery,” he boasts. “I wouldn’t want you to limit your options and have to change surgeons in the middle of the procedure.” Which surgeon would you choo...

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...

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...

Prenuptial and Postnuptial Agreements can be strong and useful planning tools that help couples plan their lives together.  Just like a properly done estate plan, a prenup can protect a families' most valuable assets and reduce tensions by setting out a simple outline for the future. When prenuptial and postnuptial agreements are created collaboratively families are strengthened because everyone has a voice and buy-in to a clear plan for their family. However, many engaged couples don't hire collaboratively trained attorneys when negotiating a prenup because they haven't heard of collaborative law or they rely on a recommended lawyer without doing any research of their own.  Doing a little research before hiring an attorney is critical because the worst mistake you can make when negotiating a prenup is to hire an attorney who only knows litigation.  Litigation is an adversarial process that encourages people to withhold information unless directly requested.  Lit...

Kelsey & Trask, P.C. was formed in 2008 by Justin Kelsey and Matthew Trask, and since that time we have grown and changed in many ways.  With Matt's recent opportunity to join Remington Arms , we've re-evaluated what Kelsey & Trask, P.C. means to us and to our clients.  Our new name, Skylark Law & Mediation, P.C., reflects who we are today and what qualities we want to continue to bring to our clients.  Skylark represents the future of our firm, while not forgetting where we came from.  Symbolizing that ongoing connection to our past, the letters from Skylark are all contained within our original name, Kelsey & Trask. What is a skylark?  A skylark is a modest but agile song-bird that typically travels in small flocks, and sings at dawn.  While these changes represent a new day at Skylark Law and Mediation, we shall remain a small firm that doesn't apologize for being small. Our close-knit team has a variety of experience and expertise,...

This post is a follow up to last week's post about the Observer Effect in Family Law , and the ongoing conversation on the MBA's My Bar Access forum  about the recent decision in  the Ventrice case . A few attorneys in that discussion have expressed an opinion that is clearly held by many others: "...what I see is a lot of failed mediation." Unfortunately this fact may be true for many, because litigators don't see the successful cases from mediators, they only see the cases that failed. This creates a skewed view of mediation. But it's also problematic if you extrapolate any one failure to all mediation. If the parties failed to reach an agreement in mediation does that mean mediation doesn't work, or that mediation didn't work for that couple?  If a party changes lawyers do we call that a failure of the whole court system? There are bad and good lawyers, and there are bad and good mediators, and there are bad and good clients! We have to be ...

Duck or Rabbit?- from Wikimedia Commons The recent appellate decision in the  Ventrice case sparked a great discussion on the MBA's  My Bar Access forum, which was started by William Driscoll the appellate counsel for the successful party in that case.  The discussion ranged from constitutional and statutory issues, to an examination of the court's ADR referral program.  One comment in particular, though, just didn't ring true for me: "My personal impression is that mediation works great for those clients who can discuss the issues like adults, but in my experience those are few and far between at least in the beginning of the process. Then, even those clients who are interested tend to lose interest when weighing the cost of paying their attorney's and a mediator to go over the issues and trying to find a compromise, when they either do not want to compromise or are doubtful of the other side compromising." - An attorney who describes himself on Avvo...

Snow days are one of the most exciting events when you're a child, especially if it means a reprieve from an upcoming test or homework due date.  But for parents, snow days are a significant inconvenience including last-minute schedule changes and all the fun involved in snow removal.  In addition, many employers will expect you to "work from home" but that is easier said than done when you have young children (as I write this I'm being asked by a three year-old why she can't have candy for breakfast). As with many issues separated parenting exacerbates many of these inconveniences.  For separated parents, a snow day means additional questions such as which parent is in charge and who is responsible for snow removal at a shared property.   For parents who have chosen litigation to resolve their divorce, these disagreements could mean additional attorney's fees or court dates.  By contrast, all of these challenges are minimized when parents work together, a...

In a Conciliation a neutral private attorney, sometimes appointed by the court, assists parties in assessing the strengths and weaknesses of their case and exploring options for resolving the matter without going to trial.  Conciliation is similar to mediation  in that the two parties are working with a neutral person who is attempting to help them reach an agreement. However there are some key differences: If attorneys are involved in the case, they are usually present for conciliation. Often attorneys don't participate in a mediation. Conciliators can, and often will, provide an opinion or assessment of each party's arguments.  While this may assist the parties in settling, it is different than mediation where the neutral avoids making assessments which could favor one party or the other. While a mediator can be a mental health practitioner, financial expert or other non-attorney professional, a conciliator is an attorney because of the legal experience necessary t...

There are many reasons that there are currently fewer Collaborative cases than there are mediation and litigation cases.  Just to name a few of the challenges: the process is newer and less well known to the general public; there is still confusion about the cost and benefits of the process; and there aren't as many practitioners trained in the process as there are in mediation (and no additional training is "required" to go to court).  Collaborative Law, like mediation, requires that both parties choose the process.  If one party wants to go to court then the other essentially has no choice.   There are many seminars on informing the reluctant opponent, and about educating other professionals regarding Collaborative Law and hopefully these strategies will help more cases resolve amicably. However, there will always be some cases where one side chooses to hire an attorney who believes litigation is the best route, or at the very least is not willing to be disqual...