Divorce Mediation Training Associates began training mediators in 1989 with John Fiske, Diane Neuman and Phil Woodbury. Since that time DMTA has trained over 950 mediators and continues today under the supervision of Ellen Waldorf and Justin Kelsey. Ellen and Justin have recruited an experienced and diverse faculty to assist them in continuing to carry on the traditions Diane, John and Phil began.
While going through some boxes of past materials, Justin found the attached flyer for DMTA’s inaugural training. We’ve created a flyer for our next training that matches the styling, but also highlights some obvious updates to DMTA’s practices:
the October, 2024 training will be online via Zoom (a technology not available in 1989)
Despite these updates this retro flyer reminds us that the core principles we teach in this training and the training methods themselves have not changed significantly. While technological updates augment our practice, mediation is still about personal interactions in conflict resolution and a lot of our materials and experience are similar to the trainings Diane, John and Phil were doing 35 years ago.
If you’re interested in taking a training or learning more visit our Registration page or Curriculum page and don’t hesitate to share these flyers with anyone who may be interested as well!
As a new mediator I am fascinated with many topics of mediation. Power imbalances and how a mediator identifies power differentials and addresses them effectively is of particular interest.
One power imbalance I’ve been thinking a lot about is that between mediator and clients. The mediator as the paid professional and expert is by default the more powerful, regardless of the personality of client that might show up in the room. I believe that most of us have an internal bias that activates when we go to professionals. We are socialized to expect that the expert will tell us what to do to fix our problems. When people are in distress and more vulnerable, this belief system may be more activated. So how does a mediator effectively work with these overt or more subtle expectations to be directive? How do we help clients understand how we are different from advisors, attorneys and psychotherapists?
I learned during my recent divorce mediation training the importance of discussing at the onset of mediation the fact that a facilitative mediator is an “impartial neutral”. We practiced opening statements that included mentioning that mediation is a “self determined” process and that mediators do not make decisions or give advice. Mediators prepare clients to understand this, and I imagine that many clients initially often don’t fully grasp the complexity of what this stance really means and how it will significantly impact the process and outcome of mediation.
The belief that each person, couple, even couples with significant conflict, have more knowledge about their lives, their needs, and the needs of their family seems obvious, yet is not a position that may be easily accepted by both clients and professionals. Our culture of divorce has shifted the balance of power from the hands of the individuals far too often. I suspect that even for people who choose mediation, there are often obstacles to holding to this framework. I envision the mediator as the guide, constantly keeping the focus on the clients as experts of their own lives, despite the pull to deviate.
As a new student of mediation perhaps I am overthinking the process aspect to how this transformation and rebalancing of power between client and mediator occurs. I suppose that showing up, sitting together, and doing the work well is what allows the facilitation process to grow. I imagine the deep satisfaction that results when very difficult decisions get resolved by the hard work and dedication of the clients. I look forward to experiencing this process and hopefully being transformed by it myself too.
Suellen Walsh, Ph.D.
Suellen is an experienced clinical psychologist and a newly minted mediator in the start up phase of her practice. She loves to network and welcomes comments at [email protected]
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.
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 potential benefit significant. Potential clients will appreciate that you offer mediation as an option, and existing clients will appreciate that you are educated about a service they might seek to use.
2. Mediation is proven to Work
Most studies or programs that have tracked the settlement rate of mediation sessions, show that about 85-95% of the time mediation is successful in helping clients reach full settlement. In addition, even in cases that don’t reach full settlement, there may be improvements in the relationship between the parties, which many might consider a success. One study of family mediation found that parents were much more likely to have an ongoing relationship with their children after simply trying mediation for five hours, even if they didn’t settle. Read more about that study by clicking here.
3. Mediation is good for the Mediator
Speaking from experience, mediation is a rewarding process to be involved in. The process of mediation gives clients power over their decisions, and even when people have difficult conversations, the majority reach an agreement that they feel in control of. That process is empowering and meaningful, and as the mediator helping parties have that experience can be very rewarding. While not all lawyers are mediators, as a lawyer-mediator there is strong contrast between my experience in mediation and my experience litigating. In litigation, people are often frustrated by how little control they have over the rules, the process, and the outcome. It’s much more enjoyable to have clients who are happy with their process even when the outcome is not everything they may have wanted initially.
4. Mediation will Grow
The growth of online shopping and services, has led to a more educated class of consumers in the modern world. Consumers want efficiency, and they want services that are proven to work. Mediation is the settlement process that most closely resembles the online shopping culture, and if necessary mediation can even be conducted online with advancements in user friendly video conferencing software. Mediation is going to continue to grow, and offering that service will become more and more of a necessity for dispute resolution professionals who want to keep up.
In Massachusetts, in order to take mediator referrals from the court, or to mediate with privilege, the statute requires that you take a 30 hour training. The courts are inviting mediators into the courthouse more and more often to assist in resolving cases, and as this trend grows, there will be more and more opportunities to participate in mediation, if you’ve taken the necessary training.
5. Mediation skills are Life Skills
After taking the mediation training myself, I started recommending it to everyone I know, whether they will be a mediator or not. Most mediation trainings include a focus on active listening techniques and interest based negotiation. These skills will make you a better negotiator whether it’s part of your job or just in your own life. These are skills that can improve your relationships and reduce conflict in your life.
If you’re interested in taking a mediation training, there are many opportunities including two trainings per year held by Divorce Mediation Training Associates, with the next training scheduled in March, 2020 in Needham, Massachusetts. Learn more here: 40 hour Divorce Training.
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 office, Skylark Law & Mediation, PC, the majority of our clients have opted to continue receiving mediation and collaborative services via videoconferencing rather than postponing their meetings. It’s not the same as being in person, but for clients, it’s better than waiting to address their pressing issues.
So, if your clients are frustrated by the necessary delays in the court process, consider telling them again about their other options. If you’re looking for family conflict mediators you can find a list of professionals via the Massachusetts Council on Family Mediation website. If your clients may not be able to afford a private mediator, consider the many community mediation services in Massachusetts that provide services on a sliding fee scale basis – all listed on the Resolution Massachusetts website.
If you’re looking for a specific recommendation for a dispute resolution professional in any area of the law, feel free to reach out to me directly, or post a comment to this thread with your referral request.
Finally, this crisis is also an opportunity to think about how we plan to deal with conflict in the future. We can continue business as usual when this crisis has passed (which it will), or we can reflect on whether this crisis has highlighted a better way to approach conflict. Take these steps to be better prepared the next time an emergency situation occurs:
Get to know a mediator or co-parenting coordinator who can be a resource for your family in times of crisis. Don’t assume your lawyer or the court is going to be there to help, or that they should be your first call when there is a conflict.
For professionals, get trained in mediation or collaborative law so you can provide additional service options to your clients (visit these links to sign up for a mediation training or collaborative law training ).
Encourage the Massachusetts Bar Association (or your local bar association) to add mediation, conciliation, collaborative representation, and arbitration, as service options in their lawyer referral directory. This has been proposed before to the Mass Bar and rejected, but it seems like it may finally be time to recognize how important it is to have alternatives to the court, and that the professionals who offer those alternatives offer a vital service.
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 their client communications and work product.
While these are state requirements, training does not “certify” mediators under these provisions; training simply qualifies mediators to meet these requirements.
Some private organizations do provide certification for mediators, including the Massachusetts Council on Family Mediation, Inc. Those private certifications often have more stringent requirements. For example, MCFM requires an additional 60 hours of training (on top of the 30 hour basic training) as well as a certain level of experience to qualify for their certification. For more information on MCFM’s requirements read: How does a Mediator become Certified?
If you see a mediator claiming to be certified you should ask what organization has provided their certification and what are the requirements for obtaining that certification because, not all certifications are created equal.
If you’re ready to get trained, Divorce Mediation Training Associates is holding a 40 hour online Mediation Training that not only qualifies for the three Massachusetts state requirements above, but goes beyond and meets the national standard of 40 hours of training. The training begins on April 22 and will take place over nine mornings from 8:30 AM to 1:00 PM (UPDATE: We’re doing another training in July as well!). Learn more and Register here.
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 as a one-dimensional struggle between two forces allows us to frame the conflict in an easy to understand way. If you’re wrong, then I’m right. If what I want is good, then what you want is bad. It is a tug of war between two positions, and there are only four options for resolution: you win, I win, we compromise (we both lose something), or we end in a stalemate. However, when we see this conflict dynamic in a two-dimensional space it can help us see that there may be additional options for resolution.
Negotiating between two positions, what you want v. what I want, assumes that the resolution can only be located somewhere on the compromise line depicted above. In this graphic representation, we limit ourselves to a solution that exists on the line between “You Win” and “I Win”. Those limitations also limit our process options, the choices of how we will resolve the conflict. If you won’t give in or compromise then I must either use force to change your mind or seek an outside decision maker. I either given up my agency or force you to give up yours.
These limited options both for process and resolution, explain why conflict often makes people feel hopeless and powerless, like they are losing control, or it turns them into bullies. The good news, is that we don’t have to resort to these methods when we expand our view of conflict beyond one dimension.
In a two-dimensional model of conflict there are significantly more options both for resolution and problem-solving. There are numerous options below the compromise line in which we both lose more than if we compromised. This is often the result in litigation because the emotional and financial cost of the fight reduces the potential result by those costs. A fight is not a zero sum game.
However, there are also numerous options above the line.
There are options where we both get what we want when we view conflict in two dimensions instead of one. A two-dimensional conflict resolution model looks at the possibility that conflict is more like an Olympic race than a tug-of-war.
Most of the racers in the Olympics know they aren’t going to beat the favorite, the Usain Bolt or Michael Phelps. So why do they show up, then? They still show up to the race because they are racing for something else. They may be racing against their own time. The may be racing to represent their pride in their country.
They crossed the finish line just like the “winner of the race”, but they won something different.
We often assume that everyone in the race has the same goal, and because of that assumption, we see one winner and the rest as losers. This is an oversimplification. We know that most people don’t have a chance of beating Usain Bolt in a footrace, and at the same time we may still be successful people. We have different goals. Even Usain Bolt will “lose” his share of races to others, and that doesn’t change what he has accomplished in the past.
The result of conflict can be a success for everyone involved when we look at conflict differently, when we look beyond the tug of war and see that our goals may overlap in some ways and diverge in others. Even this two-dimensional model is limiting because it assumes that our own interests are linear. As complicated beings we not only have multiple interests, some of our own interests can be in conflict.
The most accurate way to view conflict may actually be an imperfect sphere of intersecting lines of interest. Viewing conflict in this way helps us see that every conflict has many, many possible resolutions, and is rooted in many potential competing interests. The skills and techniques used by mediators, and other conflict resolution professionals, aim to help people in conflict step back and see the forest through the trees. When people see their conflict differently, as a three-dimensional problem they can solve together, then the process of finding resolution can be as complex and as beautiful as this sphere.
The most revolutionary transformation of conflict comes when we let go of the rope between us and see each other not as enemies, but as joint observers of the problem. Leaving behind a one-dimensional view of conflict, frees us all to be more creative problem solvers. A two or three-dimensional view of conflict also frees us from the need to use force, or give up control, in order to resolve the conflict. Instead when we are joint problem solvers, conflict is a challenge that we can tackle together, and the process itself leads to a greater understanding of each other’s core interests.
In conflict between people that have an ongoing relationship, like families, neighbors and co-workers, this process of understanding can actually help resolve (and maybe even prevent) future conflicts as well. It may sound corny at first, but this broader model of conflict resolution can help us recognize the potential beauty in both the process and resolution of a challenge. It can help us see the opportunity in conflict and take away the fear that makes us avoid conflict.
Facing conflict (both inside ourselves and with others) helps us better understand our place in the world and grow our selves and our relationships. Let us not fear conflict anymore, but face it with a better understanding of it’s inherent beauty, complexity, and it’s relation to our identity.
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.
I recently had the opportunity to train with two of the most prominent mediators in Massachusetts: John Fiske and Diane Neumann. Each time they run a training, John and Diane share what they think is the most important question for a client to answer to have an effective mediation. John says that he thought the most important question is “What do I want?” But then he will tell you, with a knowing smile, that Diane disagreed with him and she would say that the most important question for a client to answer is “Who am I?”
I agree with Diane. The best lawyers and mediators ask their clients not just about what they want, but also deep questions about the clients’ identity, goals, and values in order to help the clients resolve conflict in the most effective way possible. Despite knowing this, we often fail to ask clients the simplest questions when we first meet them or have them fill out an intake. We fail to give them an opportunity to answer the question “Who am I?” in the most basic form because most of us don’t ask two simple questions:
My Preferred Name or Nickname is: _________________
My Pronouns are: _________________
Who am I?
Before continuing, I want to acknowledge that I may not be the best person to write this article because I have not personally experienced any societal pressure regarding how I self-identity. I was assigned male at birth (AMAB) and identify as male (this is referred to as cis-gender). I am also white living in a predominately white town, county, state, and country. I am heterosexual. I am tall, broad-shouldered, and I have a deep voice. All of these things mean that when someone sees me in my community many of the assumptions they make about me are probably correct without my having to say anything about how I identify.
This is privilege because I am acknowledged and respected for how I identify myself, without ever having to explain it or feel excluded. It is privilege because it is not a benefit that everyone enjoys. I get to define myself and my hope is that you, the reader, will see that everyone should have the same right to define themselves without having to explain it or feel excluded.
Although I may not be the best person to write this post, I believe it is also important for allies to share their support and to acknowledge that while my voice comes from a place of privilege, it is also my responsibility to use that privilege to support those denied the same voice. In doing so, though, I’m going to rely heavily on the resources and assistance of others who speak from personal experience.
Educate Yourself
In the past, I made assumptions about how I to refer to clients, and what pronouns they use. I am guilty of asking my clients only for a full legal name. If I asked a client what name to use, it was often a lawyer-like leading question: “I prefer to use first names, is that okay with you?” I never asked about pronouns. This is partly because I hadn’t had enough education about the many ways in which people might self-identify, but primarily because of the silent but present privilege inherent in my own identity. I didn’t think it was important because it wasn’t important to me.
I can honestly say, in my lifetime, no one has asked me what my pronouns are and have always assumed my pronouns are he/him. As I explained above, this has never been a problem for me because those are the pronouns that reflect my cis-gender identity. I had to educate myself about the question “Who am I?” to realize the frustration I may be unintentionally causing my clients. Luckily, we live in an era where resources are available and plentiful to educate oneself about the complicated nature of identity.
I took a course offered by Massachusetts Continuing Legal Education on Transgender Persons & the Law (that program is still available as a webcast here) and I recommend it. You can also find resources online or from your local LGBTQ+ groups. One site that has particularly helpful resources is the Trans Student Educational Resources site, including a visual breakdown of the differences between gender identity, gender expression, and sexual orientation, the Gender Unicorn.
Graphic by TSER, click for more info.
As a visual learner, I found this resource particularly helpful. They have also provided a table describing some of the most common gender pronouns, and an explanation of their use:
Graphic by TSER
Why ask about Pronouns?
To show respect for our clients and each other, we should be asking, not assuming, “Who are you?” To those of us who do not have the burden of explaining why we identify as we do, it may seem as if correct pronoun use is not a huge deal. However, for those who find themselves misgendered and with the need to explain who they are at a fundamental level day after day, the need to explain and educate others can go far beyond being annoying to exhausting and even trauma inducing.
At the MCLE program I attended, one of the panelists made a very simple point: what does it cost you to provide this level of respect to others? Essentially it costs you nothing. The small amount of time it takes to learn about and familiarize yourself with pronoun options is nothing compared to the positive impact it can have on someone who feels accepted and recognized, especially if that is not a common occurrence for that person.
Particularly for lawyers and mediators, the importance of having our clients feel heard is paramount to an effective client relationship. Below are links to a few articles discussing the effects of misgendering, and how asking about pronouns can affect a person’s mindset and health:
Hopefully at this point you agree about the importance of allowing everyone to self-identify. So, what can you do to help?
Ask the Question
When we know better, we can do better. What does that mean for our clients with respect to pronoun use and gender? It’s really simple: stop making assumptions and ask a question right up front. Lawyers and mediators should add a line to intake and scheduling forms so that clients can answer the pronoun question, without feeling the need to educate or explain how they identify.
Be thoughtful about the way you ask the question. While some people state that they “prefer” certain pronouns, others find the idea that it is a “preference” offensive because we never refer to cis-gender individuals as “preferring” their gender, it just is who they are. On an intake avoid asking what they prefer, and ask simply “What pronouns do you use?” or “My pronouns are:_________.”
In conversation, start with an introduction “I’m Justin Kelsey, my pronouns are he/him.” This invites the question possibly without even having to ask it by demonstrating first that you are open to the other person identifying their pronouns as well.This can be done when communicating electronically as well. You can set a tone of open acceptance by proactively identifying yourself even if it is not something you have historically felt the need to do. Lawyers and Mediators should be including this information in their e-mail signatures. Below is a sample:
You may also want to consider adding pronouns to your social media profiles. These are easy steps that demonstrate to our clients (and our colleagues) that we have a basic understanding of the need to be correctly identified through correct pronoun use in personal interactions.
Listen to the Answer
Once you know someone’s pronouns, use their pronouns without judgment and without questioning. If you have questions, remember that it’s not their job to educate you about the concept of gender identity. Consider reviewing the resources we’ve provided above instead of asking questions of someone who may already be exhausted or traumatized from being misgendered during their lifetime (for more information watch this video on Thing Not to Say to a Non-Binary Person) This is especially true when you have not established a relationship that includes trust and understanding.
If and when you engage in a dialog with someone about gender, LISTEN first. If you feel like you want to ask questions, always ask yourself if your question could cause additional trauma and if it’s something you could educate yourself on later without placing the burden on your client.
We all make mistakes as well. When using pronouns that may be different than you’re used to it may be uncomfortable at first. Just remember how uncomfortable it must be for the person who is misgendered throughout their life, and if you make a mistake, simply apologize.
Here in Massachusetts, there is a chance to vote on transgender rights on November 6th. The ballot Question #3 asks MA voters to essentially affirm a law already passed by the legislature that would prohibit discrimination in public accommodations based on gender identity, further described here.
If you are a MA resident, we encourage you to vote YES on Question #3, and to spread these educational resources about identity so others, especially those in privilege, can better understand the complicated nature of identity and how easy it is to show respect for another person’s identity simply by having an open and curious mind, which is the most important tool a lawyer and mediator has to offer.
UPDATE: Question 3 passed with almost 70% of the votes, a resounding affirmation that Massachusetts residents support transgender rights and protections and refuse to stand for discrimination based on gender identity. While this is a positive sign, the law itself does not prevent people from being discriminated against. In order to continue to do better, we must insist on enforcement of the law, seek out and share educational resources about gender identity, and continue to work together towards better understanding of each other. The success of question 3 is a step in the right direction, now let’s keep asking the right questions.
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 surgery had not resulted in removal of the stone at all, and that he needed another surgery.
This was in spite of our being convinced, after learning the full story, that my father-in-law’s surgeon was an excellent surgeon and had made the best medical decisions under the circumstances during the surgery. So how did the lines of communication get so crossed?
There is an unspoken and unreasonable tendency to assume that professional services – such as getting your kidney stone removed, or negotiating a divorce – are somehow divorced from real life. We assume that the professional only needs to be someone who knows how to do their job – and that their cultural background, their “bedside manner,” their manner of relating to me and communicating with me as a human being, is irrelevant or not as important. This is a grossly inaccurate assumption – as much in the operating theater, as in the legal field. Cultural competence and sensitivity to the needs of diverse clients are an essential part of being an effective and successful professional.
History, religion, attitudes towards gender roles, norms about the purpose and role of the family, and the importance of individual happiness versus the collective good of a society, are all many-colored threads that run through a marriage – and tangle, when a marriage is broken up.
This is even more the case in the context of family law, where cultural competence may be crucial to a divorce practitioner’s ability to fully understand and advise a divorcing couple, or one of the parties to a divorce. No one can deny that every culture approaches marriage and family in very different ways. Even just looking at the wedding ceremony itself, this is abundantly clear. History, religion, attitudes towards men’s and women’s roles, norms about the purpose and role of the family, and the importance of individual happiness versus the collective good of a society, are all many-colored threads that run through a marriage – and tangle, when a marriage is broken up. Nobody is looking for divorce and nobody expects it to be pretty.
Especially when a couple seeking a divorce comes from a culture that holds marriage and family in high regard, it should be approached delicately. It’s a situation that calls for sensitivity, and cultural and ideological literacy. This is why we need more diverse family law practitioners.
The importance of cultural understanding: Couples from diverse backgrounds need diverse family law mediators or attorneys, who may be better equipped to understand the cultural nuances operating between a divorcing couple if they share that cultural or ideological background. There may be unique stigmas faced by a divorcing couple from a specific cultural background: shame and ostracization; heightened incentives for privacy; and potentially many more players involved in the decision-making process than just the two parties.
Parties should not shortchange themselves nor discount the importance of having a mediator or attorney who understands the interplay of these many factors. Having just one culturally-sensitive collaborative attorney on a collaborative team for a divorcing couple could mean that the team as a whole – both attorneys, and the coach, and any other neutrals – approach a couple from a different cultural background with much more insight and sensitivity, too.
The importance of feeling understood: We need diverse practitioners all the more in out-of-court processes such as collaborative law and mediation, where the parties to a dispute retain control of the decision-making process from beginning to end, and are not giving it up into the hands of a judge as they would in litigation. When so much elbow grease is required outside of the courtroom and from the parties themselves, a culturally-sensitive or literate mediator could mean the difference between settling a case and getting stuck at an impasse that exists because of some unspoken and ingrained cultural or ideological value that one or both of the parties subscribes to, but is unable to or does not ever think to share. It could also mean the difference between a party feeling comfortable enough to trust and build rapport with the practitioner(s), an element that is key to effective dispute resolution.
Diversity strengthens the professions as a whole: Couples from all backgrounds can benefit from help from diverse family law practitioners. In out-of-court processes in particular, a diverse practitioner’s varied experiences and competency at adaptation, flexibility, and thinking outside the box (because they have been forced to, coming from a non-mainstream culture) can be invaluable to crafting out-of-the-box solutions to problems that might seem insurmountable when approached from a more traditional perspective.
In many ways our country has been taking a long, hard look at ourselves, and reevaluating whether it is really true that as a nation we hold certain truths to be self-evident – about race, race relations, cultural diversity, and the value and place of women in society, for example.
The family law bar needs diverse practitioners, so it can grow within itself and broaden its perspectives and approaches to diverse populations, and also sharpen its ability for out-of-the-box thinking. The family law bar should foster diverse and culturally-sensitive practitioners if it really desires to provide access to the law to a diverse population.
In many ways our country has been taking a long, hard look at ourselves, and reevaluating whether it is really true that as a nation we hold certain truths to be self-evident – about race, race relations, cultural diversity, and the value and place of women in society, for example. Our choices reflect and test who we really are. We should walk the talk – and show by who we foster and mentor among our colleagues, and by who we seek to hire to help us with our problems – that we really believe diversity matters. For my Shanghainese father-in-law who deserves to know what happened in his two-hour surgery – and for all of us.
In “Bargaining in the Shadow of the Law: The Case of Divorce,” Robert H. Mnookin and Lewis Kornhauser. discussed many ways in which the law provides a framework for divorcing couples to define their own rights and responsibilities after divorce. 88 Yale Law Journal 950, April 1979. We have come a long way since that journal devoted its entire issue to conflict resolution, featuring their far reaching examination of private ordering in divorce. The concept could not have been more fitting, nor better timed.
The article helped to set the stage for the robust growth of alternative dispute resolution in many forms that we now enjoy, including our Supreme Judicial Court Uniform Rules of Dispute Resolution and the flowering of family mediation through organizations, training, literature and even an occasional Hollywood movie. But at the time they wrote, much of divorce law was in the dark. Probate and family court judges had wide discretion and little guidance, and unpredictable court results could depend on who your judge was and other seemingly capricious factors.
Light Dawns
So where are we now? By 2017 divorce law has become far more clear and often even predictable. The single most vital contribution to this framework for helping couples discuss and define their own divorce terms are the federally required Child Support Guidelines (CSG). One can only imagine the thousands of couples whose divorces have been simplified by the CSG. In my early days of mediation about 6 months after the article appeared, I was constantly asked, “What will my child support be?” and Mr. Hem met Ms. Haw: “Well, it depends. It depends on what county you are in, or who the judge is,” etcetc. The law shed little light on the subject, and any shadows shifted or conflicted.
A glimmer of light appeared in October, 1978 when Probate and Family Court Judge Edward Ginsburg wrote an article, “Predictability and Consistency in Alimony and Child Support Orders,” in the Boston Bar Journal. He proposed a simple formula based on the income of the payor; that light helped to settle many cases. In one mediation the husband said, “I think 33% of my income is too much for me to pay my wife but I am willing as long as I know I am not the only guy in Middlesex County doing it.”
As more lights appeared, the shadows diminished. The CSG worksheet now allows couples to consult their computer and find the answer to their question in minutes. The parents may not agree, but they have a framework for their negotiation. For example, mediating couples can ask, “Does the CSG amount make sense for us?” and they can compare the suggested amount to their actual living expenses to make an informed decision in the light of what a court would do.
The Alimony Reform Act of 2011 sheds more light on various alimony questions, making it clear that the law allows short term alimony, proposing a simple formula for calculating the amount and even provides time limits. For example, the shadow of cohabitation is specifically illuminated: couples can choose from a menu of alternatives from revision or termination of alimony to suspension during the cohabitation period. The appellate courts have been conscientious in taking appeals to clarify various provisions in the Act. For example, in Hassey v. Hassey, 85 Mass. App. Ct. 518 (2014) the Appeals Court held that a judge cannot enter an alimony order for a fixed percentage of the payor’s income in the future because this “self-modifying” order is not supported by findings, etc. But nothing prevents couples from entering separation agreements providing for such flexible arrangements and courts from approving these agreements. In George v. George, 476 Mass. 65 (2016) the Supreme Judicial Court said temporary alimony does not affect the length of general term alimony obligations. Similarly, questions about when it is appropriate to attribute income to either party have been clarified in Emery v. Sturtevant, 88 Mass. App. Ct. 1118 (2017), thereby limiting one of the few remaining alimony and child support issues for lawyers to argue about.
Pesky question of property division have been similarly clarified by case law, such as the role of property inherited before, during or after the marriage and whether family trusts are marital property to be divided or mere expectancies which may or may not occur. Lauricella v. Lauricella, 409 Mass. 211 (1991) and Pfaffenstiehl v. Pfaffenstiehl, 475 Mass. 105 (2016).
Effects of Light
One effect of this evolving clarity is to change the question. Instead of arguing over what a court would do if the case were tried, the question is whether the court will approve the agreement the clients have reached. For clients interested in private ordering, that is the real concern. How long alimony or child support should last is already defined, and parties can agree to something different now that they can make an informed decision. In a mediation this July the husband with $80,000 of income said he thought they should make their incomes equal though his wife had no income, and she agreed. They knew that the law would only require him to pay one third of the difference in their incomes: they each knew what they were getting and they each knew what they were giving up. They felt this agreement to be fair and right, and their only question was whether the court would approve it.
It remains important for couples to know what the light of the law is, not to tell them what to do but to give them some objective criteria by which to judge their own solution. In Getting to Yes, Fisher and Ury recommend four principles of negotiation ending with consideration of some objective criteria. Houghton Mifflin Company (1981) p. 84. Here the illuminating law can be of great help, not to dictate but to inform their own solution.
“’I am half sick of shadows,’ said the Lady of Shalott” in the poem by Tennyson, but her facing reality had unhappy consequences. While I am glad to see the law moving us out of the shadows, we can hope for better informed settlements of divorces and other family disputes. Parties can know the norms and make their own choices when and how to adapt to them. Lawyers can have more confidence in predicting whether negotiated and mediated agreements will be approved by the courts, and can inform clients what they are gaining and what they are giving up in reaching their own solutions. As Superior Court Justice Douglas H. Wilkins pointed out in his letter to Lawyers Weekly on July 17, 2017, new court rules provide further support for early mediation: the path to a desired result is not only illuminated but can be significantly shortened by helping lawyers, mediators and clients to discuss appropriate settlements from the very beginning of a case. Children benefit from their parents reducing conflict. We can spare the courts unnecessary litigation, and sleep better nights.
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 surgery had not resulted in removal of the stone at all, and that he needed another surgery.
This is even more the case in the context of family law, where cultural competence may be crucial to a divorce practitioner’s ability to fully understand and advise a divorcing couple, or one of the parties to a divorce. No one can deny that every culture approaches marriage and family in very different ways. Even just looking at the wedding ceremony itself, this is abundantly clear. History, religion, attitudes towards men’s and women’s roles, norms about the purpose and role of the family, and the importance of individual happiness versus the collective good of a society, are all many-colored threads that run through a marriage – and tangle, when a marriage is broken up. Nobody is looking for divorce and nobody expects it to be pretty.
Parties should not shortchange themselves nor discount the importance of having a mediator or attorney who understands the interplay of these many factors. Having just one culturally-sensitive collaborative attorney on a collaborative team for a divorcing couple could mean that the team as a whole – both attorneys, and the coach, and any other neutrals – approach a couple from a different cultural background with much more insight and sensitivity, too.
The family law bar needs diverse practitioners, so it can grow within itself and broaden its perspectives and approaches to diverse populations, and also sharpen its ability for out-of-the-box thinking. The family law bar should foster diverse and culturally-sensitive practitioners if it really desires to provide access to the law to a diverse population.