Wednesday, October 15, 2014

3 Things that Mediation is NOT

Mediation has become a popular alternative to court proceedings, with mediators resolving disputes of all kinds ranging from private family matters to the very public NFL lockout.  But there is still a significant amount of confusion about what is mediation and what can a mediator do for you.  Some of the most common misconceptions follow:

1. Mediation is NOT Arbitration!

Many people assume that the purpose of a mediation is to have a trained third party help them make decisions by choosing a solution when they can't agree, and this misconception has been popularized by shows like Untying the Knot.  Bravo TV's show about a New Jersey divorce attorney and mediator, Vikki Ziegler, follows one issue (usually property division) through brief evaluation and "recommendation" sessions.

In order to be able to fit the resolution of an issue into a half hour of drama, the show has a formula based on Vikki pushing the spouses to settle their disputes by making a "recommendation" that often sounds much more forceful:  in one of the previews, Vikki tells the husband to "zip your mouth and shake her hand."  While this might result in settlements in many cases, the formula for this show is much more akin to arbitration or case evaluation than mediation.

When we are involved in an argument or a conflict there is an understandable tendency to want to win, or to be vindicated as the one who is "right".  If we can't convince the other side that we're right and they're wrong, then we want someone else to make the decision.  If you go to court to resolve a dispute and are unable to reach a settlement, the judge (or in some cases a jury) will be that someone.  If you hire an arbitrator then they will make the decision instead of a judge, but mediation is something different.

Mediation is about having help to make the decision together, instead of the mediator making the decision for you.  That may sound harder than letting someone else decide but it is usually much more rewarding, especially in divorce cases.  Even a trained professional is never going to know as much about your life and your goals as you do.  Why let them decide?

2. Mediation is NOT one attorney for two people!

Many people choose mediation because they want the advice of an attorney but don't want to pay for two attorneys.  While a mediator who is also an attorney can provide you with legal information, they cannot advise each of you individually.  This is an important, and sometimes complicated distinction.

The reason a mediator can't give you legal advice, is because the mediator doesn't represent you or the other party, nor does a mediator represent both of you. It is not ethical or practical for an attorney to represent both parties in a case. In fact, Rule 1.7 of the Massachusetts Rules of Professional Conduct prohibits an attorney from representing a client if that representation will be directly adverse to another client.

It is not reasonable to believe that an attorney can represent two adverse clients at the same time in the same action and look out for both of their interests. It is possible to have an attorney act as a mediator but in that case the attorney does not represent either party and is not looking out for either of your individual interests as an advocate would. Instead, the role of a mediator is to assist the two parties in reaching an agreement that they are both satisfied with, regardless of whether that agreement in the opinion of the mediator might favor one party or the other.  That is why many people in mediation will consult with their own attorney, at least briefly, at some point in the mediation process so they have the opportunity for individual advice as well.

3. Mediation is NOT Meditation!

Okay, I know this one seems obvious but in a world where search engines control the flow of information, there are still some people who think meditation and mediation are the same thing.  If you search for iPhone apps relating to mediation, you receive mostly meditation apps.  In addition, mediation and mediation do have some things in common.  Mediation involves listening and channeling your goals before making decisions.  Also mediating a dispute is more likely to lead to enlightenment and relaxation than letting someone else decide for you.

So if you're looking for a way to resolve your dispute that is more self-aware, then mediation might be for you, even though it's not meditation.

If you want to learn more about mediation click here, or contact Attorney Justin Kelsey.


Thursday, October 9, 2014

Collaborative Law is Growing!

If you follow our posts at all you're probably aware that attorney Justin Kelsey is a Collaboratively trained Divorce attorney and Mediator.  But did you also know that three other attorneys at Kelsey & Trask, P.C. are Collaboratively trained as well?

Full time Associate, Valerie Kua, and of counsel Jonathan Eaton have both taken the Collaborative Training and regularly use those skills in their family law practice to settle both Collaborative and cooperative cases (if you don't know the difference click here).  In addition, of counsel to Kelsey & Trask, P.C., Beth Aarons is a trained Collaborative attorney who practices in both family law and estate planning & probate.

At Kelsey & Trask, P.C. we strongly believe that Collaborative Law is the future of dispute settlement, and not just in divorce cases.  For example, if you have an estate planning or probate dispute, you may want to consider Collaboratively trained counsel as well.   Even other civil matters, such as business disputes, can be resolved through the Collaborative process or using Collaborative skills.

If you want to learn more, we encourage you to join attorney Matthew Trask in attending the upcoming MCLC Training on Resolving Business Disputes by Collaborative Law:


presents:


Business disputes are bad for the bottom line, whether they involve breakups, exit plans, family issues or garden variety commercial disputes.  The good news is that there is a way to deal with these problems that does not involve the expense, delay and emotional stress of litigation.  If you are interested in exploring about a new way to deal with business disputes, one that has proven effective in other areas of the law, this training is for you - whether you are already a collaborative practitioner, are a lawyer who wants to add collaborative skills to your resume, or are simply a business owner, CPA or business advisor who wants to know more.

This is a 3.5 hour training taking place on Friday, December 12, 2014 from 1:00 pm to 4:30 pm in Woburn, MA.



Divorce Support Groups in Massachusetts

Going through a divorce is the second most stressful life event next to the passing of a loved one. When a loved one dies, we have numerous traditions and rituals that ensure that we have support to help us grieve.  In contrast, divorce is too often experienced alone.  While we encourage our divorce clients to seek support of friends, family and therapists, that doesn't work for everyone.  Sometimes friends and family don't understand, and therapy isn't the answer for everyone.

When some options don't work, that doesn't necessarily mean that you have to go through your divorce alone.  It is important to realize that other people are experiencing the loss of divorce as well and in some cases sharing that experience can be useful.  Divorce Support Groups are one way to find that support and there are options for both women and men:

Divorce Support Groups for Women: http://oonametz.com/



Wednesday, September 24, 2014

Why Aren't You Getting Collaborative Cases?


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 disqualified if the case goes to litigation.  When that happens, should we fight fire with fire?  Do we, as Collaborative professionals, give up and accept that this is just another non-collaborative case?  Or even more drastic, do we give up the case because we don't want to litigate?

If your'e thinking that you don't have a choice, you're wrong!  Your clients have a choice, and so do you. You may not see the choice yet, because like so many of our clients, when it comes to our own lives and our own businesses we can't see all the options without help.

For starters let's try to learn from the advice we give our clients:  

You do not control the actions of other people, 
but you do control your own actions and reactions.  

One of the strengths of the Collaborative process is in challenging the clients to identify their goals before looking for solutions.  Well, what happens if we apply that same process to this problem.  

Is the problem really that you aren't getting cases?  Or is the idea of getting more Collaborative cases actually your proposed solution to an unidentified problem.  Instead of trying to jump to a solution, let's try to identify your goals first.  What are the goals that you have as a professional that lead you to want more Collaborative cases?

For me, I had four goals in providing Collaborative as an option to my clients:
  1. Enjoy my work more;
  2. Have happier and more satisfied clients;
  3. Leave divorcing parents in a better position to communicate about their children, and thereby help more children feel like they still have a family;
  4. Get paid for the work I perform.
I believe that having more Collaborative cases will help me accomplish these goals because:
  1. I enjoy working with the professionals in the Collaborative community and many of them are my friends.
  2. My clients will be more satisfied because I will provide a more efficient product to my clients, which means spending less time litigating (and in the worst instances fighting with attorneys who chose to make the process personal).  The process is also more efficient and the clients happier, long-term, because we spend more time rationally solving their disputes rather than letting a stranger decide their fate.
  3. The children of my divorcing clients will likely feel less tension because my clients will be more involved in the problem solving process so that they can learn to solve their disputes better in the future without my help.  In addition, they can choose to prioritize their children's needs in the process, thereby giving their children a voice in the room that they likely wouldn't have in court.
  4. More satisfied clients are more likely to pay their bill.
Great, I have identified one solution that prioritizes all of my goals.  However, in the Collaborative process we wouldn't stop there.  We must also present other options, and we must evaluate whether this is the best solution or at the very least whether it is a realistic one.  If clients don't choose Collaborative as often because the word is not out yet, then is this a realistic solution?  What if one client chooses the Collaborative process and the other hires an attorney who says they won't agree to the disqualification clause?  Is your only option to litigate?  Even the briefest of brainstorming would suggest other options: withdraw from the case, talk to the other attorney further, seek other options from litigating even if there can't be a disqualification clause, etc.

Now that we recognize that there are other options for solving the problem, the next step is to determine what is the best option.  While the best solution may vary from case to case, we've effectively re-framed the problem.  

But, wait a minute.  You're wondering how this helps you get more Collaborative cases and whether the title to this article was just a tease.  Don't worry,  I'm getting there.   

Just because the problem is different than you thought it was, doesn't mean there isn't an answer.  It just means you're still defining the problem incorrectly.  So let's step back even further:

How are you defining a Collaborative Case?

You will often hear attorneys who haven't been trained in Collaborative Law still say: "Well, I am collaborative."  You will also hear Collaboratively trained attorneys often say: "Well, I haven't had any Collaborative cases yet."  How can untrained attorneys be getting Collaborative cases when trained attorneys aren't? Obviously, their definitions are different.  

At the recent MCLC's Interdisciplinary Introduction To Collaborative Law Training we provided some key terms to understand in Collaborative Law, and one of the most important is the distinction between Collaborative and Cooperative:
Cooperate/Collaborate – When people cooperate, they work independently toward separate goals that may be compatible but are not necessarily mutual, and often compromise to reach resolution; when people collaborate, they work together toward shared, mutually beneficial goals, and co-create a resolution.
When untrained attorneys say that they're collaborative, what they are really saying is that they wont' fight you unnecessarily but that their goal is still the best possible resolution for their client.  They really mean that they are willing to be cooperative.  As Collaboratively trained professionals, we have the skills to go beyond cooperating and help our clients learn how to actually Collaborate.  

Consider an example:  I have a case where the other attorney refuses to sign a Collaborative Process Agreement, but agrees to meet outside of court in order to try and settle "amicably."  Rather than discuss the parenting plan details with the attorney over the phone I suggest that we have a meeting with both clients in the room so that they can be part of the discussion.  While my client has a position that he has come in with, I encourage him to consider what his goals are and to be open to other options.  In the meeting, I help my client voice his goals and concerns, but I don't only speak for him. The other attorney follows my lead and encourages her client to do the same.

Is that a Collaborative Case?   

Using the skills I learned from Collaborative training, I've helped move the discussion past a simply cooperative discussion to a potentially Collaborative one.  Just because the clients haven't signed on to do this with every issue doesn't mean they can't still benefit from these skills being applied to their case.  

By applying these skills to a case that may not be considered "technically" a Collaborative case, I have still manged to meet some of my original goals.  I didn't have to give up the case (or the fee), and my client (and his children) are potentially in a better position because of the skills I've applied to the negotiation.

If you apply your Collaborative skills to more of your cases, 
then those ARE Collaborative cases.  

Over the course of my career I have handled many litigation, negotiation, and cooperative cases.  Since I took the Collaborative training, I have had only five cases where both parties agreed to sign a Collaborative Process Agreement.  Should I only count those cases as Collaborative cases?  What if an agreement wasn't reached?  Is that better or worse than a case that was not an official Collaborative case, but settled outside of court because I treated it like one?  

Collaborative law practice is a mindset and a set of skills, and if you haven't had any Collaborative cases yet it's because you aren't applying those skills and accepting that mindset.  Reframe the problem.  

Stop trying to turn clients into Collaborative cases.  Instead help your clients by applying your Collaborative skills to their case, whether or not the other side agrees to sign a Collaborative Process Agreement.  If you have that mindset, then the next client that walks into your office is your next Collaborative case.




Monday, September 15, 2014

MA SJC Rules on Parent Coordinator Orders: Asks Probate Court to make a Rule

In the case of Bower v. Bournay-Bower, the Massachusetts Supreme Judicial Court has ruled that Judges in the Probate and Family Court cannot grant a Parent Coordinator binding authority over the objection of one of the parties.  However, the SJC went much further then necessary in order to open the door for what might be the "appropriate circumstances" to order a Parent Coordinator.


In Bower, the SJC summarized the trial judge's order as requiring a parent coordinator to:
"hear the parties' current and future disputes regarding custody and visitation in the first instance, before the parties could file any action regarding these disputes in court. The order also granted the parent coordinator the authority to make binding decisions on matters of custody and visitation and provided that these decisions must be complied with by the parties as if they were court orders unless one of the parties were to go to the court before the decision was to take effect and obtain a contrary order." - Bower
This order was made after multiple cross complaints for contempt were filed regarding the adherence to the parenting plan and legal custody requirements of the parties' divorce judgment.  The SJC recognized the usefulness of parent coordinators, but found that the order in this case "exceeded the bounds of the judge's inherent authority and was so broad in scope that it constitutes an unlawful delegation of judicial authority."

In their discussion, the SJC points out that
"Despite the increasing use of parent coordinators in Massachusetts, the specific functions of a parent coordinator, including the parent coordinator's duties, necessary qualifications, or scope of authority, have not been set forth by statute or court rule. "- Bower
Due to the court's broad inherent equitable powers the SJC did conclude that judges have the authority to appoint parent coordinators in "appropriate circumstances" and indicated some bounds that might be "appropriate":
"Therefore, probate court judges possess the inherent authority to refer parties to a parent coordinator in appropriate circumstances in order to conserve limited judicial resources and aid in the probate court's functioning and capacity to decide cases, or if in the judge's discretion such referral is necessary to ensure the best interests of the children in a divorce- or custody-related proceeding." - Bower
However, this authority must be limited and was exceeded in this case: "A judge's inherent authority does not extend to compelling a party to submit to the binding decision-making authority of a parent
coordinator without that party's consent."

The SJC was also concerned that the order in this case put off a decision on the existing pending contempt complaints and limited the filing of future claims.  Both of these exacerbated the due process concerns.

There is very clear language from the SJC that "a judge in the Probate and Family Court possesses the inherent authority to refer parties to a parent coordinator."  And also that they are not limiting the right of parties to agree to the use of these services.  If there is agreement, then the issue is easy, but even without agreement, the SJC is indicating that parent coordinators may be useful so long as the judge is careful not to give up too much of their own authority.

Therefore, the SJC asks the Probate and Family Court to promulgate a rule governing the appointment of parent coordinators to help ensure appointments address these and other concerns that the court has over training, favoritism in appointments, etc.  While a lengthy decision, Bower finally brings us some clarity on the SJC's position regarding Parent Coordinators.  Now, the Probate and Family Court can give parents even more clarity by creating the Rule the SJC has asked them for.


Thursday, August 7, 2014

Collaborative Law Intro Training 2014

Kelsey & Trask's Justin Kelsey will be one of the presenters at the upcoming 2014 Collaborative Law Training:


presents an Introduction to Collaborative Law Practice 2014:

An Interdisciplinary, Interactive, Step-by-Step Training 
to Offer A Better Approach to Conflict Resolution.

This is a three day introductory training taking place on September 11, 12 & 13, 2014 which will proceed step-by-step through the collaborative process. The program is designed for social workers, psychologists, and other licensed mental health professionals, financial professionals, family law attorneys and civil law practitioners.

This training meets the International Academy of Collaborative Professionals (IACP) standards for trainers and interdisciplinary training.



Wednesday, August 6, 2014

A Lecture in Myanmar

For 9 days this past July, Valerie Kua, an associate at Kelsey & Trask, P.C., had the opportunity  to visit the Republic of the Union of Myanmar (formerly Burma) through the Seed of Hope Foundation.  As part of this visit, on Friday, July 18, Valerie presented a lecture on the American legal system at the University of Mawlamyine.

Myanmar is the second largest country in Southeast Asia bordering Laos, Thailand, China, Bangladesh and India.  Then known as Burma, Myanmar became an independent nation in 1948 and has spent much of that time in civil war.  Today Myanmar is one of the poorest countries in Southeast Asia, though the recent lifting of economic sanctions has given the country new opportunities for growth.

The University of Mawlamyine is the third largest university in the country, with approximately 8,000 undergraduates.  Two hundred University professors, lecturers and students attended Valerie's Introduction to the American Legal System lecture, where she explained the process for admission to legal practice in the US, the American court system, the American litigation process, and alternative dispute resolution.

This trip was a unique opportunity for Valerie to meet students and professionals from a very different legal system from ours and to share information about the American legal system.


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