Oran Kaufman 4/10/25 Oran Kaufman 4/10/25

Checklist of Issues to Consider During Mediation

Checklist of issues to consider during mediation

1. Division of Assets:

___________ Real estate

___________ Pension/Retirement plans

___________ Stocks, bonds, annuities

___________ Bank accounts

___________ Vehicles (autos, boats etc)

___________ Personal property (furniture, dishes etc)

___________ Business

2. Issues surrounding division of property

Is one party retaining real estate of will it be sold?
Will you need an appraisal of the real estate?
How will you divide the personal property? Does it need to be appraised?
Do the pensions need to be appraised?
What date will you use as cutoff for values of property?
Do you still have joint bank accounts? At what point will you separate your bank account?
What will guide the division of property- a desire to achieve a certain percentage (50/50, 60/40 division etc. or a desire to have each party keep certain assets regardless of ultimate percentage?
Is either party expecting a significant inheritance and is that a factor which you wish to consider in the division of property?
Are there any assets which either of you wish to not consider in the division (for example- inherited assets or assets accrued prior to the marriage or post-separation)

3. Parenting

__________ Legal custody- joint or sole

__________ Physical custody- shared or sole

__________ parenting schedule

__________ holidays

__________ vacations

__________ summer

__________ birthdays

_________ reviews

__________ transportation

__________ removal from commonwealth

__________ communication and exchange of records

4. Support

__________ child support

__________ amount

__________ duration

__________ emancipation provision

__________ extraordinary expenses

__________ college and private school expenses

__________ uninsured medical/dental expenses for children

__________ review of child support

5. Alimony

________ Alimony or waives of alimony

________ If waiver, waiver of past present and future

________ If alimony, duration and amount

________ Tax ramifications of alimony

6. Health insurance

________ Who carries health insurance

________ Family plan or individual

________ Cost of insurance

________ Will insurance be available to ex-spouse post divorce, cost

________ Does other spouse have insurance available, cost

7. Life insurance

________ amount of life insurance

________ term policy- what is term and cost

________ whole life/universal- cash value

________ should life insurance continue post divorce for how long?

________ who owns policy and who is beneficiary post divorce?

8. Taxes

_________ How will taxes this year be filed

_________ Who claims dependency exemptions

_________ Who claims head of household

_________ Any tax liabilities?

9. Liabilities

_________ Liabilities joint or individual

________ Who is responsible for what liabilities

________ Can other spouse be removed as obligor

10. Merger/survival

Oran Kaufman 4/10/25 Oran Kaufman 4/10/25

Checklist for Divorce Separation Agreements

This checklist is intended to be a guide that is comprehensive and specific. Not every Separation Agreement will include provisions on each of the listed points.

I. IDENTIFYING DATA

A. Place for Names of Parties
B. Date/Place of Marriage
C. Name(s) /Date(s) of Birth of Children

II. CUSTODY

A. Legal Custody
B. Physical Custody
C. Living Arrangements/Parenting Plan (including weekdays, weekends, birthdays, transportation, holidays, and vacations)
            1. Current
            2. Future Modification / Periodic Review
            3. Each parent's access to kids when they are with the other parent
D. Relocation
E. Travel Outside Massachusetts
F. Notification of illness
G. Access to Children's Records
H. Access of other relatives to children
I. Emergency decisions
J. Parental Cooperation/Non-Disparagement
K. Religion and Religious Training
L. Contact of children with parents' new partners

III. CHILD SUPPORT

A. Support Amount
            1. Initial Amount
            2. Method of Establishing Payment (define income if using income-based formula other than Child Support Guidelines)
            3. Allocation of costs for extracurricular activities (e.g. camp, lessons, tutoring, sports, etc.)
            4. Allocation of child care cost
            5. Cost of vacations
B. Duration (including definition of emancipation, and effect of death of payer)
C. Time of Payment
D. Periodic Review / Future Modification
            1. If more than one child: effect of emancipation of older child(ren) on child support
            2. Effect on child support when child attends college
            3. Periodic changes in amount: COLA, Guidelines, percentage method, formula, other.
            4. Renegotiation (without specific method for adjustment)
E. Tax Effect
            1. Not taxable to recipient
            2. Not deductible by payer
F. Dependency Exemption(s)
G. Children's Accounts/Investments

IV. EDUCATION

A. Definition of education (college/private elementary or secondary school)
B. Definition of educational Expenses (e.g. tuition, room & board, application fees, travel home, books, computer, etc.)
C. Apportionment of expenses (children's funds, work, scholarships, parental contributions)
D. Involvement of parties in process of choosing college to which applications will be made
E. Involvement of parties in financial aid applications

V. ALIMONY

A. Waiver of future alimony
B. Amount
C. Duration and reasons for termination
D. Time of Payment
E. Periodic Review/Future Modification
            1. Calculation method
            2. COLA
            3. Renegotiation (without specific method of adjustment)
F. Tax Effect
            1. Tax deductibility
            2. Tax reporting for inclusion of income
G. Effect of Alimony Termination on Child Support Obligation

VI. HEALTH AND DENTAL INSURANCE FOR CHILDREN

A. Policy in Effect
B. Obligation of coverage
C. Duration of obligation
D. Notification of change in policy
E. Responsibility for premiums and co-payments
F. Uninsured medical and dental expenses (Examples: orthodonture, psychotherapy)
1. Allocation
2. Approval
G. Loss of coverage / Alternate coverage

VII. HEALTH AND DENTAL INSURANCE FOR SPOUSE

A. Policy in Effect
B. Obligation of coverage
C. Duration of obligation
D. Notification of change in policy
E. Responsibility for premiums:
1. COBRA costs, if relevant
2. Upon remarriage of either spouse
F. Uninsured medical/dental expense
G. Loss of coverage/Alternate coverage

VIII. LIFE INSURANCE

A. Identification
B. Allocation of cash value (if whole life)
C. Amount (death benefit)
D. Ownership
E. Responsibility for payment of premium
F. Beneficiary (optional establishment of trust)
G. Future obligations:
            1. Duration, adjustment of amount
            2. Documentation/Option to review policy
            3. Default provision (claim on estate)

IX. MARITAL HOME

A. Property address/county/state/owners/form of ownership
B. Use and Possession
C. If Joint Ownership:
            1. Type (tenants in common; joint tenants)
            2. Responsibility/Liability for Expenses
                        i. Present/Future mortgages (including equity lines)
                        ii. Real Estate taxes
                        iii. Homeowner's insurance
                        iv. Maintenance
                        v. Capital Improvements
                        vi. Repairs (major and minor)
                        vii. Condo fees (if relevant)
            3. Division of rental income (if any)
            4. Tax Consequences: allocation of tax payments and depreciation, other deductions
            5. Duration (including circumstances such as remarriage or change of custody that would trigger change in ownership)
            6. Indemnification
D. If Transfer to Third Party:
            1. Timing of transfer or sale
            2. Allocation of costs of preparation for sale (including repairs)
            3 Appraisal and setting asking/selling price
            4 Definition of proceeds
            5 Division of proceeds (including whether payer of mortgage gets credit for payment of principal)
            6. Capital Gains tax consequences
E. If Transfer to Spouse:
            1. Determining price (mechanism for including any deductions from equity, e.g. equivalent of realtor's fee, capital gains taxes, title V or other necessary repairs)
            2. Time of transfer
            3. Method, timing of payment
            4. Responsibility of sole owner for expenses after transfer
            5. Does non-owner stay on mortgage? If so, indemnification provision
            6. Tax consequences (e.g. transferee liable for capital gains taxes)
            7. Homestead

X. ADDITIONAL PROPERTY

A. Pension/Retirement
            1. Description of plan(s)
                        i. Contributory plan
            ii. Defined benefit plan
            2. Valuation of plan, who pays for valuation
            3. Transfer provisions
            4. Division
            5. QDRO requirements, who pays for QDRO preparation
B. Securities (stocks, bonds, stock options)
            1. Identification
            2. Balance of account(s)
            3. Ownership
            4. Division, buy-out, or other disposition
            5. Restrictions on voting, sale
C. Bank Accounts (savings/checking accounts; money market funds; certificates of deposit)
            1. Balance of account(s)
            2. Ownership
            3. Division or other disposition
D. Family Business/Closely-held Corporation
            1. Identification
            2. Description
            3. Form of ownership (if less than 100%, amount of ownership)
            4. Value, and who pays for valuation
            5. Division, buy-out, or other disposition
E. Real Estate (other than marital home)
            1. Description of property
                        i. Ownership form
                        ii. Usage
                        iii. Rental
                                    1. Right to income
                                    2. Obligation for expenses
                                    3. Tax consequences
F. Partnerships and Limited Partnerships
            1. Identification
            2. Value
            3. Division, buy-out, or other disposition
G. Pending Legal Actions
H. Tangible Personal Property
            1. Possession and storage
            2. Division; Provision for removal
I. Trusts
            1. Identification
            2. Present or future interest in trust, nature of interest
            3. Value
            4. Division, trade-off, or other disposition
J. Inheritances, actual or potential
            1. Identification
            2. Present or future interest in inheritance, nature of interest
            3. Value
            4. Division, trade-off, or other disposition
K. Vehicles
            1. Make, model, year
            2. Who holds title
            3. Ownership upon divorce
            4. Responsibility for Loan/Hold Harmless
            5. Cooperation regarding applicable transfers
L. Intellectual Property, including royalties, copyrights, trademarks, patents, etc.
M. Cemetery Plots
N. Frequent Flyer Miles
O. Pets
P. Photo Albums, family videos
Q. Waiver of rights to any property purchased by spouse after agreement is executed but before judgment of divorce becomes final

XI. TAXES

A. How to file for last year of marriage
B. Cooperation if joint filing
C. Use and reporting of available deductions
D. Division of refund or liability
E. Contribution (if joint)
F. Indemnification
G. Cooperation for audit/investigation of prior years' tax returns
H. Capital gains tax consequences for all assets and/or capital loss
I. Adjustment for change in tax laws

XII. DEBTS AND LIABILITIES

A. Type of debt
B. Allocation of responsibility for debts, including debts incurred after agreement is executed but before the judgment of divorce becomes final
C. Indemnification

XIII. ADDITIONAL PROVISIONS TO BE INCLUDED

A. Warranties about full disclosure of finances
B. separate and independent legal advice
C. Procedure for future disputes (mediation clause)
D. Responsibility for payment of mediation fee/legal fees/filing fees
E. Privacy clause
F. Debt payment designated as support and maintenance
G. Promise of no past and future contraction of debt in the other's name
H. Waiver of right to take against will
I. Waiver of right to after-acquired property
J. Right to dispose of property by will
K. Mutual release of all claims
L. Entire agreement (no oral or extrinsic agreements)
M. Acknowledgement of fairness and reasonableness of provisions
N. Massachusetts contract.
O. Severability; the unenforceability of a provision shall not affect validity of other provisions
P. Waiver of provision not waiver of subsequent breach/default of provision
Q. Modification, amendment or waiver in writing to be valid
R. Forever binding and conclusive on heirs, executors, assists
S. Indemnification for breach by breaching party or his/her estate survives death
T. Effect of Bankruptcy
U. Notarization

Note: This checklist was originally published by the Massachusetts Council on Family Mediation

Oran Kaufman 4/2/25 Oran Kaufman 4/2/25

Role of the Divorce Mediator

The Mediation Process

As the mediator, there a number of things going on in my head and on a number of levels. I am trying to assess the participants and the dynamics. I look at body language, tone of voice and their general demeanor at the mediation. It is my job to determine if there is a power imbalance and if so to address it. It is also my job to make sure that each party has the same basic level of understanding and knowledge. If not, I suggest ways that this can happen. Sometimes I suggest experts or outside people that one of the participants can consult to get up to speed.

On another level, I am always assessing my neutrality. If I suggest that one party consult with an outside expert, will that be seen by the other party as favoring that party? Almost anything I do can be taken as biased. In fact, I often tell the couple that I will inevitably be biased. It is unrealistic to think I would not be. What I ask them to do is to inform me if at any time they feel that I am not being neutral.

On another level, I am simply a traffic cop. I need to keep the participants focused and on task. It is my job to redirect the conversation when things get out of hand or become too tangential. At various times, I check in with the couple to make sure that they are comfortable with what is happening in the mediation.

On yet another level I am a problem solver. Ideally, the resolution of disputes and ideas for resolution will come from the parties. There are times however, when I will make some suggestions for possible scenarios for outcomes. Once again, whenever I make suggestions I always have to be careful and make sure that the parties understand that I am not pushing a particular agenda or resolution. This would undoubtedly affect the appearance of my neutrality. There are times however when I see parties struggling to find a solution and I have one in mind because of experience in dealing with a similar situation in the past. In that situation, I will make a suggestion of one more option to consider.

Wrapping up the Mediation Process

Once the parties have reached an agreement, if the parties are not using attorneys, I send the clients a packet which includes all the court forms and financial documents they will need to file with the court and very specific instructions about the court process and how to file the divorce. I will meet with clients for one final meeting in which we review the court papers, instructions for filing and appearing in court, review financial statements to make sure they are accurate and prepared properly.

I review the agreement to make sure both parties fully understand and agree to the provisions and I give clients instructions about signing the agreement and filing the paperwork with the appropriate court. I cannot notarize the agreement for my clients.

Oran Kaufman 4/27/21 Oran Kaufman 4/27/21

Virtual Registries

Many of our local Probate Courts now have Virtual Registries that allow you to communicate directly with court staff via Zoom to discuss filings or other questions about your case. The Probate Courts are still closed to in-person filing so using the Virtual Registries is a smart way to make sure you have your paperwork in order before you file or to check on your filing. Here are the links:

Hampden Probate Court:

https://www.zoomgov.com/j/1600424858

Hampshire Probate Court:

https://www.zoomgov.com/my/hampshirepf

Trial Court list of Virtual Registries:

https://www.mass.gov/info-details/remotevirtual-court-service

Oran Kaufman 3/3/21 Oran Kaufman 3/3/21

Family Resolution Specialty Court

Ask me about the Family Resolutions Specialty Court at the Hampshire Probate and Family Court in Northampton, MA. This is a one-of-a-kind court program for families with children going through the divorce or separation process that is based on a team and child-centered approach.

Oran Kaufman 12/18/19 Oran Kaufman 12/18/19

Is Divorce Mediation Legally Binding?

I hear this question a lot but it is not exactly the right question. Mediation is a voluntary process in which both parties agree to use mediation to help them resolve their dispute. In the case of a divorce, the mediator will help the parties reach an agreement which will then be drafted into a divorce agreement and ultimately presented to the judge for approval.

Let’s go back to the question, “Is Divorce Mediation Legally Binding?” Mediation is different than arbitration. In arbitration, the parties present their dispute to an arbitrator and the arbitrator makes a decision. It is sort of like a trial in front of a private judge. Some arbitrations are binding and some are not. Arbitrations often arise as a result of a contractual provision that requires arbitration in the event of a conflict. The contract will indicate whether the arbitration is binding or not.

Mediation is very different. First, as stated above, mediation is voluntary. Second, the mediator does not make a decision. The mediator’s role is to help the parties discuss the issues and help them reach an agreement. If the parties reach an agreement, the mediator will draft the agreement in a form that the parties can submit to court. In the case of a divorce, the mediator will draft a divorce agreement. In Massachusetts, this is called a “Separation Agreement.” Prior to an agreement being signed by the parties, nothing is binding. Assuming your mediator meets the criteria of the Massachusetts Confidentiality Statute (Massachusetts General Laws chapter 233 section 23c (https://malegislature.gov/laws/generallaws/partiii/titleii/chapter233/section23c) and you have signed a mediation agreement which includes a confidentiality provision, the mediation process and any statements made during mediation are confidential and cannot be used in court. Once the parties have signed the divorce agreement, it becomes a contract and is enforceable as a contract but it is not yet a court order.

The parties will then file their divorce agreement with the court. At the parties’ divorce hearing, the judge will go over the terms of the agreement and will ask the parties a series of questions to make sure they both understand the agreement and believe the agreement is fair and reasonable. It is at the point at which the court approves the agreement as part of the parties’ divorce that it becomes truly binding. At that point, the agreement becomes a court order. If a party violates any terms of the agreement, the other party may choose to try and enforce the provision by bringing a Complaint for Contempt.

Oran Kaufman 10/22/19 Oran Kaufman 10/22/19

Postnuptial Agreements- Part I

A Postnuptial Agreement, sometimes known as a Marital Agreement, is an agreement between two people who are married and are either thinking about divorce but have not yet decided to divorce, or are considering divorce but are hoping that such agreement may help them stay together.

Why might you want to consider a Marital Agreement? Here are a few scenarios that may make a Marital Agreement worth considering:
1. You are having marital difficulties. You are not ready to divorce but you want to protect certain assets in case you do get divorced.
2. You and your spouse have very different ideas about money. You want to save money and (s)he wants to spend money. The marital agreement is a way that you could possibly protect your savings or insulate you from your spouse’s debt if you get divorced.
3. You have decided to divorce, but one of you will lose their health insurance if you divorce, so you stay married to keep the health insurance but you lay out the terms now of what your divorce agreement will look like.
4. One of you has family money, you did not enter into a prenuptial agreement, and you want to protect that your premarital family assets in the event of divorce.
5. You are happily married and have been so for a long time but you have had a number of friends who have gone though some horrible divorces with some bad results and you want the assurance that this will not happen to you.
6. You are not ready to get divorced but you are separating and you want some ground rules around what will happen while you are separated. This might include what happens with accumulated assets or debts during the separation and how you will support the children. It may include a parenting plan, college savings etc.

These are just a few examples of reasons that parties have sought Marital Agreements that I have seen and helped mediate. Essentially, think of a Marital Agreement as similar to a Prenuptial Agreement (done prior to marriage) but, well, post-nuptial, (after and during marriage).

A Marital Agreement is more like a prenuptial agreement than a divorce separation agreement. This is primarily because unlike a divorce separation agreement which is filed with the court and becomes a court order, prenuptial and postnuptial agreements are essentially contracts between the couple. They are not filed with a court and do not become court orders. The idea, however, is that in the event of a divorce, the parties (and hopefully both parties still agree) will ask the court to implement the terms of the Marital Agreement and that becomes the basis for the divorce judgment.

Like most contracts, the Marital Agreement has two main purposes. One is to memorialize what you have agreed to so that in case your memories are different as to what was agreed to, you can refer to the Marital Agreement. The second is for enforcement purposes. That is, if one party does not abide by the agreement, there are legal consequences. Here again, the main difference from a divorce agreement is that the Marital Agreement is not filed with the court and is not a court order. What that means is that if one person does not “comply” with the terms, the other party cannot file a Complaint for Contempt asking the court to find the breaching party in contempt. The consequences of a “breach” of the terms of the Marital Agreement will depend in large part on what terms are contained in the agreement itself. That is, there may be provisions in the agreement about what happens in the event of a breach, including payment of attorney’s fees. If the parties ultimately file for divorce, the remedy would be to try and convince a court to uphold the terms of the Marital Agreement. Short of filing a divorce complaint, the only remaining remedy would be to file either a breach of contract action, a complaint in equity or some other action to enforce the agreement.

There is one more key difference between a Marital Agreement and a divorce agreement. As stated above, a divorce agreement becomes a court order which is final and binding. If one party breaches the terms, he or she can be found to be in contempt of court. Although provisions concerning children are always modifiable in the future, provisions concerning property division are final and not modifiable. So, in a divorce agreement for instance, if you agree to waive the right to your spouse’s retirement at the time of divorce (and the court approves the agreement), once you have done that, that agreement is not modifiable. Even if it later proves to be very unfair.

With a Marital Agreement, there is a second look. Let’s say you agree in your Marital Agreement to each waive the right to each other’s retirement in the event of divorce. Let’s say you stayed married for 10 years after the agreement and now you decide to divorce and one party has retirement assets of $1,000,000.00 and the other has retirement of $20,000.00. When the court is asked to enforce the Marital Agreement, the judge will look at whether the agreement was fair when it was signed and whether it is fair now, 10 years later. If a judge decides it is not fair and reasonable when it is being enforced, the judge can reject that provision.

Fortunately, at least in Massachusetts, there have been several cases which clearly lay out the requirements and possible limitations of Marital Agreements. We will explore those cases in the second part of this series.

To summarize, Marital Agreements, despite some limitations, are very useful in at least two important ways: 1) A Marital Agreement can clearly lay out a couple’s understanding of what they agree should happen in the future in the event of divorce; and 2) the Marital agreement can lay out some expectations, ground rules and agreements about how financial matters will be handled during the marriage.

Oran Kaufman 10/8/19 Oran Kaufman 10/8/19

Divorce Mediation Process in a Nutshell

Amherst Mediation Services
Divorce Mediation Process in a Nutshell

1. Initial Free Consultation: The mediator and both parties will meet together for an initial free consultation. At this meeting, the mediator will explain the mediation process, discuss fees and cost of mediation, compare mediation with other options and answer questions that either party has about the process or about the mediator.

2. While there is no obligation to start the mediation process following the initial consult, we will set aside time that day so that if you want to start that day, you can. Typically, if the mediation starts that day, the mediator will spend between 30-60 minutes with you getting background information about your situation, basic financial information and information about where you are in the process of divorce or separating. You will be sent home that day with some homework.

3. Following this initial meeting you will be asked to fill out the court financial statement as well as gather certain documents to make sure that we have all the information we need.

4. How many sessions are needed from that point forward and how quickly the process goes is largely in your control. The mediation can take as little as 1-2 more sessions or 5-6 sessions depending on how complicated your situation is and how well the two of you are able to discuss matters outside of the mediation room.

5. Once an agreement is reached and you have had a chance to review the agreement drafted by the mediator, we will have one final meeting in which we will go over the agreement, review the financial statements and court papers which will have been prepared in advance of the final meeting.

6. The mediator will not attend the court hearing with you but will prepare you for the hearing at the last meeting. You will receive detailed instructions about filing the paperwork.

7. After the last meeting, it is up to you to follow through with filing the court papers, including your financial statements, agreement and filing documents.

8. If you have children, you will be required to enroll in a parent education class. This will be necessary before you can get a hearing on your divorce. The mediator will provide you with information about this.

9. It is generally recommended that you hand file your paperwork with the court, rather than mail. You do not both need to file the paperwork with the court. Only one of you needs to drop off the papers. Your mediator will go over your paperwork at the final meeting. If the papers are not in order the clerk’s office will likely reject the filing so it is important to make sure the paperwork is correct and complete.

10. At the hearing, the judge will go over your agreement and financial statements with you and if everything goes well and as expected, the judge will approve your agreement that day.

11. If you filed a joint petition for divorce, the divorce will be final 120 days from when you went to court. You will not however have to go back to court at the end of the 120 days.

12. If you are transferring real estate or retirement accounts or any accounts, it is up to you to follow through with this. Your mediator will not be responsible for following up on these issues (this will be discussed at the final meeting).

13. This is a summary of the process. During your mediation, the mediator will go into a lot more detail about all of these issues.

Oran Kaufman 7/24/19 Oran Kaufman 7/24/19

Valuation of the Marital Home

If you are getting divorced and you own your home, one issue that will certainly need to be addressed is the valuation of your home. The exceptions to this are: 1) If you plan to sell your home; and 2) if you plan to continue to jointly own the home. Let’s discuss these two options first.

If you plan to sell your home in the near future, you will need to decide on a valuation in order to determine your asking price when the home is put on the market. Theoretically, the two of you should be able to agree on this as you will want to maximize the profit (particularly if the plan is to share the net proceeds equally.) The only time this sometimes becomes a problem is if one person is in more of a hurry to sell the house and is willing to sell it at a lower price just so that the house gets sold faster. In the alternative, if one person is living in the house, you need to make sure that the agreement makes provisions for what happens if the house does not sell immediately. An important note here is that you want to be careful of what you include in your divorce agreement as the agreement is a public document. You do not want to publicize, for example, what you and your spouse have agreed to as to sale price and potential future reductions. If this is an issue, you should consider putting that information in a side agreement that is not part of your divorce agreement.

If you plan to continue to jointly own the house, you will not necessarily need a current valuation. In most cases like this, the parties agree that the division of proceeds will occur when the house is sold and will be based on the actual sales price. There are however a whole set of other issues when dividing sales proceeds in the future, such as: do you count contribution one person has made towards paying down the mortgage? What about improvements made? etc. If you plan to divide proceeds of the house in the future based on a future sale, you must be careful to plan for contingencies such as who pays for repairs, maintenance and improvements.

If one of you plans to stay in the house and buy out the other party’s equity, you have several options. First, let’s clarify what “ equity” means. As used here, it usually means the fair market value of the house minus the outstanding mortgage(s). For example, if the house is worth $300,000.00 and the mortgage is $150,000, the equity is $150,000.00.

Short of selling the house, the best way to get a “fair market value” is to hire a certified real estate appraiser. Typically, this will cost between $350-$500 depending on where you live. Certified real estate appraisers have no interest in the property or the price arrived at, and must prepare the evaluation according to accepted criteria. Short of selling the property, hiring a certified real estate appraiser is the closest you will be able to come to a fair market value. Even so, ultimately it is still someone’s best guess at a value and it is not unusual to have two appraisers come up with two different values.

A second option for determining fair market value is to obtain a “market analysis.” These are typically prepared by a real estate broker and although they may look like a certified real estate appraisal, they are not. Often brokers will offer a market analysis for free as a way of establishing a relationship with potential sellers. While a paid certified real estate appraiser has no interest in the valuation, one could argue that a real estate broker has some interest in at least establishing a relationship with the seller. A market analysis is certainly useful information and may also be useful for purposes of comparing with another valuation.

Another option is to use the tax valuation of your city or town. Typically, however, this is not a particularly reliable method and is not the recommended method.

I always suggest that clients look at online sites such as Zillow.com just to see their valuation, for comparison purposes. I would not necessarily rely on Zillow but again, it is more information that is free.

Finally, there is nothing that requires parties to obtain a valuation. If the two of you agree on a valuation and both feel comfortable with that number, you can agree on that number without an outside evaluation.

If you are refinancing, there will be a valuation done by the bank for the refinance. You can rely on that valuation, although some would argue that an appraisal for a bank loan is not the same as a certified appraisal conducted solely for the purpose of obtaining a valuation. And, the timing has to be right. You may want to know what the “equity” in the house is before deciding to refinance. However, if you cannot get the appraisal until after you apply for a refinance you have a conundrum. Depending on the timing, a bank may allow you to use its appraisal company to do the appraisal and the bank will use that appraisal for the refinance if the appraisal was close in time (say within 30 days) to the refinance.

A few other things about establishing a buy-out number for a house are worth noting. When one person buys out the other party, will you factor in the cost of a presumptive realtor’s commission? Sometimes this is done and sometimes it is not. It depends on the situation, the timing and the parties. It is something that you may want to raise with your mediator to discuss. If one person is refinancing, do the parties share the cost or is it paid by the person keeping the house? There is no absolute right or wrong way to do this and it is often dependent on the situation and the parties.

In conclusion, the valuation of the marital home and splitting the equity in the home represents one of the most common issues that comes up in divorces. In addition to the value associated with the home, the sale or division of the marital home is also very emotional for a lot of people. It is thus very important for clients to fully understand the options around valuation of the home before making a decision

Oran Kaufman 3/11/19 Oran Kaufman 3/11/19

Divorce Mediation Cost Savings

Divorce mediation saves money. In many divorces, couples are already stretched beyond their financial means by now having to support two households instead of one. Mediation allows the couple to avoid the high cost of divorce litigation in the following ways:

In litigated divorces, most attorneys require retainers of at least $4,000.00 to $10,000.00 to commence the case. At Amherst Mediation Services, we require no retainer allowing you to have complete control of the cost of your mediation. We will bill you only for time spent and ask that you pay at the end of the session for time spent.
In mediation you will not have to worry about being billed for the hours which are typically spent preparing for and appearing at court motions and hearings.
In mediation you will not be billed for the cost of each of your lawyers speaking with each other.
Information will be gathered in a cooperative fashion rather than the expensive discovery process which includes interrogatories, depositions and motions to compel. You can control how extensive the document exchange needs to be.
A mediated divorce ( including a final agreement and all court paperwork needed typically costs under $3,000.00

Oran Kaufman 11/20/18 Oran Kaufman 11/20/18

Tips for Preparing a Short Form Rule 401 Financial Statement-Frequently Asked Questions

1. Do both parties need to fill out a financial statement? Yes. Both parties must fill out the financial statement. People often ask if they can simply fill out one financial statement if they agree. The answer is a definitive no. Whether parties have an agreement or not, they each must fill out the financial statement. The reasons for this are discussed further below.

2. Do the financial statements have to be done weekly or can they be done on a monthly basis? The financial statements must be done on a weekly basis. This is the cause of more confusion and frustration than almost anything else. The forms ask for weekly income and weekly expenses. The frustration is understandable as most people do not manage their finances on a weekly basis. To get to a weekly number if you are going from monthly to weekly, divide by 4.32, not by 4. This is a very common mistake. The other option is to multiply by 12 and divide by 52.

3. Why do we need to fill out the financial statement anyway? Another variation of this is “do we need to fill out a financial statement?” There are four primary reasons why the financial statements are required. First, it is a way to make sure that each party sets out a full and accurate representation of their finances signed under the pains and penalties of perjury. Secondly, it is a way to make sure that each party is fully informed about the other party’s finances and thus the agreement is based on full information. (This of course assumes that the parties have exchanged financial statements before signing a divorce agreement which they should absolutely do). Third, it allows a judge to get a full picture of each of the parties’ finances on a form that judges see every day and a form that is uniform. Finally, it essentially requires parties to create a budget. Particularly if there are issues of child support or alimony, the financial statements require parties to calculate their expenses and income so that they can see on paper whether they have a weekly deficit or excess.

4. How important is the financial statement? The simple answer is that it is extremely important. Next to the divorce agreement it is the most important document the parties will file in a divorce case. It is important that the financial statement accurately reflects the parties’ income, expenses, assets and liabilities. If a party misrepresents an asset on a financial statement, it could be grounds for reopening the divorce later if it is discovered that information was not accurate or true. It is also signed under the pains and penalties of perjury so if a party misrepresents something on the financial statement they are subject to a claim that they committed perjury.

5. Can we submit our tax return instead of the Rule 410 Financial statement? No. The financial statements are required in every case. Tax returns are not required. In fact, if the parties have an agreement, the judge will not request the parties’ tax return and will not likely see their tax returns. The judge will review the parties’ agreement and financial statements. In addition, while tax returns may be evidence of a parties’ income they do not show expenses, assets or liabilities.

6. Why are the financial statements on pink paper? Short form financial statements should be completed on pink paper and long form financial statements should be completed on purple paper. I don’t think there is any particular reason for those colors but the reason they are on colored paper is that financial statements filed with the court are impounded. That means that they are kept separately from the rest of the divorce file including divorce agreements. The divorce file, including agreements are open to the public. Financial statements are not. So, having them on colored papers makes it easier to easily pick them out of the file to make sure they are in fact kept separate.

7. Do Rule 401 financial statements need to be notarized? Interestingly enough long form financial statement needs to be notarized. The short form financial statement does not need to be notarized. Both forms however need to be signed under the pains and penalties of perjury by the party.

8. Are we going to need to fill out the financial statement more than once? Most likely, you will need to fill out the financial statements more than once. While in mediation, it is important that each party has a financial statement filled out and exchanged with each other. This is so that all the financial information is clear and open to the other party to explore. The likelihood is though that the financial statements will need to be filled out at least one more time and possibly more times. Depending on how much time goes by between the beginning of mediation and the end, if there have been significant changes in finances, a revised financial statement will need to be completed. A signed financial statement will be filed with the court when the divorce papers are filed with the court. Typically, there is a 30- 45-day lag (or more depending on the court) between when the papers are filed and the hearing. The judge is typically going to want to see a financial statement that is signed and dated on the day of the hearing. This is to avoid a scenario where there have been major changes between when the papers were filed and the hearing date that are not reflected on the financial statements. Sometimes, a judge will simply ask clients to initial and re-date the financial statements they already filed (if there are no changes).

9. Do we need to fill in information about our assets and liabilities if we have already agreed that we are each keeping what is in our name? Yes. Regardless of your agreement, the financial statement must be filled out in full. As discussed above, the reasons for this is that it insures that each party has made a full disclosure of his/her finances and that each has full information about the other’s finances. So, even if you have decided that you will each keep your own retirement accounts, it is important that you list the accounts. This way the judge knows that you each know what you are waiving and keeping and it allows the judge to have information necessary to determine if the agreement is fair and reasonable.

HOW TO COMPLETE THE SHORT FORM FINANCIAL STATEMENT IN MASSACHUSETTS

First, here is the link to the Massachusetts Probate and Family Court’s Website where you can download a PDF version of the Short Form Financial Statement:

https://www.mass.gov/info-details/child-support-guidelines-court-forms

Please note that while the form that can be downloaded from this site will add up and total numbers listed, it cannot be saved. Court instructions for filling out the financial statement can be found at: https://www.mass.gov/how-to/file-the-short-financial-form.

My office will provide you with an excel version of this form that can be saved and that has all of the additional schedules, like Schedule A and Schedule B, as well as the explanatory notes page.

Here are a few additional tips:

1. I generally recommend that clients not include their full social security number. It is generally not necessary and with the amount of cyber crime happening, I think it is better to not have your social security number floating around unless absolutely necessary.

2. Gross pay: If you are a salaried employee this section is straightforward. Simply look at your paystub and include your gross weekly pay. Remember that the form is weekly. If you get paid every two weeks, make sure to divide by 2. If paid monthly, divide by 4.32.

3. If you are self- employed, you will need to fill out a Schedule A. See more about that below. If you are doing the financial statement on the excel form, once you fill out the schedule A, it will fill in your adjusted gross income on line 2d of page 1. If you are doing it by hand, you will need to fill in that number after finishing schedule “A”.

4. If you receive bonuses, the best way to handle those is to include the total bonuses for the year and divide by 52. If your bonuses change from year to year, you can either include what you have received to date for that year or what you received for the prior year. In any event, you should include a notation that explains what you have done in the “Explanatory notes” page. (see below).

5. There is a page called “Explanatory Notes” on the excel version of the financial statement. More explanation is better than less. Anywhere on the financial statement where you feel you need to explain something, you should err on the side of explaining it on the “Explanatory Notes” page and referencing the item number you are referring to. So for example if you receive a bonus, I would include the amount on page one with and asterisk. On the explanatory page you can reference the line number and include a note such as, “ This was my total bonus for 20??. My bonuses change every year and I do not typically receive the bonus until December.”

6. Similar to self-employment, if you have rental property, you will need to fill out a schedule B. See below.

7. Page 2-You should be able to obtain your federal and state tax deductions off of your paystub. If you are self-employed and pay estimated taxes, you will need to either estimate or look at your tax returns to determine how much tax you paid.

8. If you have employer provided medical insurance, include the cost in #3(d). If you do that, do not then also include it in 8(m) below. This is a very common mistake.

9. Once you have included all of your deductions, you should end up with a net weekly income. This is essentially your “take home pay”. It is an important number to know as it tells us what is left after all your deductions and what you have left to pay the expenses listed below that.

10. Do not forget to include your income from last year and the number of years you have paid into social security. You can get that by getting a statement at www.ssa.gov.

11. The expense section is often the most difficult to fill out. First, it is calculated on a weekly basis and most people do not keep records weekly. Remember to divide by 4.32 if you are going from monthly to weekly. I always tell people to do the best they can when filling this out. There is not an expectation that it will be accurate to the penny. It is important to have it be as realistic as possible. Some items will be easier than others. Rent or mortgage will be the same each week. Some bills and expenses may need to be averaged over the course of a month or year. Some expenses (like heat) vary by time of year so in that case, take the whole year and average it. Food costs also vary so you should average those costs.

12. You will see that the expenses listed on the short form are by no means a comprehensive list of expenses. You should not hesitate to list additional expenses on the “additional expense sheet”. For example, the form does not include such basic things as haircuts, newspapers, birthdays, entertainment, internet, cell phone, lawncare etc. Try to be as accurate as possible. If your expenses exceed your income on the form, don’t worry. That is not uncommon and it is recognized that you are estimating to some extent.

13. One very common question is what to do if you are still living together? In other words, do you indicate current expenses and split them? I generally recommend that if possible, assuming the couple does not in fact plan to continue to live together after the divorce, the parties should anticipate and project what their expenses will be living apart. If one person plans to stay in the house, he or she should list the house expenses as though they were paying them fully. The person moving out should project what the cost will be of a new apartment or house. This gives you an idea for what your budgets will be living apart which is important information when trying to agree on a child support or alimony amount or how to share child expenses after the divorce.

14. #9- Counsel Fees- If you have paid a retainer to an attorney, list it here. Do not include your mediator’s fees here.

15. Page 3 of the short form is devoted to asset and debts. My general rule of thumb is if an asset is jointly owned, you should both list it on each of your statements and list the full amount rather than half. I think this is less confusing. If an asset is individually owned, it should only be listed on the statement of the person whose name the asset is in.

16. Initially, if you do not know the value of the home or car, it is ok to estimate. Eventually, when the financial statement is signed and filed with the court, you will need to include as accurate a number as possible. You may need to go to a site such as KBB.com to determine your vehicle’s value. You may need to get a real estate appraisal to determine the value of your house. This will be discussed in the mediation session. The rest of the asset and debt section is pretty self-explanatory. Here however are a few other tips and common mistakes that you should be aware of. Do not include full account numbers (for same reason that I suggest you not include full social security number.) If you have a term life insurance policy (8e), those generally have no cash value. Do not put the death benefit on this line. Line 8(e) is intended for whole life or universal life type policies that have a cash value. If you have already listed the mortgage or equity line in #10 or listed a car loan on 10(b), do not list those again under the Liability section in number 11.

17. If you have a defined contribution retirement like a 401K or 403B, list the current value. If you have a defined benefit pension like a state pension, union pension or federal government pension, you will need to determine the value by obtaining a present value calculation. Ask your mediator about that as this is beyond the scope of this article.

18. Schedule “A”- This schedule is not included in the court form which the state website provides. The court provides the form but it is not integrated into the short form so you will need to fill it out and then include the number on page 1. If you are using the excel form that I will provide you with, Schedule “A” will be integrated with the rest of the financial statement. Schedule “A” is similar to Schedule “C” of your federal tax return. You cannot simply attach your schedule “C” however. The easiest way to think about schedule “A” is it represents your gross receipts minus legitimate business expenses. Make sure to not duplicate expenses from page 2 and your business expenses.

19. Schedule B is the form which lists your rental income. Once you do the calculations on Schedule B, the final number which is your income after expense will be listed on page1.

20. Here are some final thoughts about the financial statement. One of the challenges and confusing aspects of it is that sometimes it calls for current numbers and sometimes it calls for prospective numbers. Sometimes it calls for actual numbers, like your monthly rent, and sometimes it is an average, like your weekly food bill. Sometimes, the form calls for actual monthly, like automobile insurance, and sometimes it requires that you average costs over the year because expenses change month to month, like heat. The form does not include a comprehensive list of expenses so it requires you to think of other expenses that may not be listed. And, the form is a moving target. The financial statement may change as the mediation progresses. You will likely have to prepare it at least twice. So, on the one hand, when it comes to expenses, I always tell my clients to do the best they can but not to stress out about absolutely precise numbers. With respect to assets and liabilities though, the numbers need to be precise and accurate. The assets and liabilities listed on your financial statement need to be consistent with what is listed in your agreement. In other words, if you list an asset on your financial statement, it should be addressed in your agreement. If you address an asset in your agreement, it should be listed on your financial statement.

Oran Kaufman 10/29/18 Oran Kaufman 10/29/18

What Should You Ask Your Mediator at the First Session?

At my initial free consultations, I usually start by giving potential clients an overview of the mediation process, a little bit of background about me and my philosophy about family law and mediation. At some point I will turn to the clients and ask if they have any questions. I am often surprised that prospective clients have no questions. It could be that I have done such a comprehensive and fantastic job explaining the process that they truly feel they have all the information they need. I don’t really think that is it though. Maybe they have already done all the research they need. Sometimes I think that the process is so overwhelming that clients may simply be distracted and not know what to ask. For most people it is their first time divorcing and they do not know where to start. Finally, sometimes clients have been referred by people, they are not shopping around and have come in to the initial session knowing that they plan to hire me. Sometimes, in those situation, clients save their questions for after we officially get started.

What I offer below is some thoughts and ideas of questions that may be helpful to ask at your initial consultation with your mediator. A free initial consultation is an opportunity to get to know your potential mediator and make sure that you are making the right decision. This person is going to help guide you in making some of the most important decisions of you life. Due diligence is not just important, it is critical.

1. First, hopefully you will have determined before the first session if the initial consultation is free. I covered this in a previous blog post. (see https://www.amherstmediators.com/2017/10/free-initial-consultation.html). In short, some mediators charge for the initial session and some don’t. I do not charge for an initial session. I see it as an opportunity for the clients to make sure they feel comfortable with me as the mediator and for me to make sure that the case is appropriate for mediation.

2. There are a number of questions which are important to ask but which will inevitably fall into the “it depends” category. While it is not within the scope of this article to answer the questions posed below, please refer to previous blog articles which discuss the questions in substance.

a. How long will it take? This question has two parts. First is, how long will the mediation itself take and second is how long will the divorce action take?

b. Related to the first question is how much will it cost? How long the process lasts and how much it costs are the two most common questions. (For a substantive discussion of these questions- see https://www.amherstmediators.com/2017/02/more-frequently-asked-questions-that.html.

3. Do you meet at regular intervals, (say for instance every two weeks) or is the scheduling based on the individual needs and schedules of the clients? Mediators have different approaches to this issue. Some will meet at prescribed intervals and some will leave it to the clients to determine the pace. There are pros and cons to each approach but you should think about your situation and what would work best for you.

4. Does the mediator take a retainer or do clients pay as they go? This is a very important question that may have an impact on whether you choose a particular mediator. I find that many clients that I deal with are struggling financially. Many clients come into mediation already in debt and now having two households is another additional burden. I have clients for whom the pace of the mediation (i.e.- how often we meet) depends on whether they have the money to pay for the session. One of the advantages of mediation over litigation is that it is almost always cheaper. If clients have to come up with a $2,500.00 or $5,000.00 retainer at the beginning of the mediation, they simply may not have the ability to come up with that much up front. I, for instance, ask clients to pay at the end of every session but they pay as they go. (I ask for a small retainer of $300.00 which is used for drafting and time spent outside of the actual mediation). I find that having clients pay as they go makes it affordable for clients and keeps them in control of the cost.

5. Will the mediator draft the ultimate agreement? If the parties reach an agreement, will the mediator draft it? This may seem like a question with an obvious answer but in fact, not all mediators will draft a divorce agreement and not all mediators can draft a divorce agreement. If the mediator is not an attorney, then the mediator cannot draft a divorce agreement as it could be seen as the unauthorized practice of law. Non-lawyer mediators often draft agreements called a “Memorandum of Understanding”. There are also lawyer mediators who choose to help clients reach an agreement but choose to not draft the agreement. This means the clients then need to hire their own lawyers (or have their current lawyers) draft the agreement.

6. Will the mediator draft the court papers? When I first started mediating in 1994, I left my initial training with the impression that it was not appropriate to draft court papers for clients. As I started mediating more, I quickly encountered the common situation where the parties had reached an agreement but now discovered that they needed to either hire a lawyer or draft the court papers on their own. While preparing the court papers is not tremendously complicated, for clients in the midst of the anxiety of the divorce, it was just one more thing. Although I give clients the choice of either my drafting the court papers or their drafting the paperwork and saving a little money, almost 100% of the time, clients have me draft the paperwork.

7. Will the mediator go to court with the parties?

8. Will the mediator tell the parties what is a fair agreement? Another way to ask this question is “What is the role of the mediator?” This is a critical question that goes to the heart of the approach that the mediator will take. There are some mediators who see themselves as more directive and some mediators consider themselves facilitative. A directive mediator will give you his or her opinion on what is fair or what a court might do. A mediator who is a facilitative mediator will help the parties reach an agreement, discuss the issues, explore options but will not tell the parties what he or she thinks the parties should do. I spend a fair amount of time discussing this with clients. I am a facilitative mediator. I will not tell clients what I think is fair because ultimately my goal is for them to reach an agreement based on what they think is fair- not what I think is fair. My conception of fair is based on my world views and biases. My goal is to make sure they have all the information they need to make an informed decision.

9. The corollary to the above question is will the mediator tell the parties if she thinks the agreement is not fair? This is a complex question. In addition to my goal of making sure they have all the information they need to make an informed decision, I want to make sure that when they go to court, things will go smoothly and the judge will approve their agreement. If I think they are agreeing to something which may lead to a problem with the judge approving the agreement, I will discuss it with the clients. How did they arrive at the decision? Do they understand it? Do they believe it is fair? I don’t see it as my job to change their minds but I do see it as my job to make sure they are not under some misunderstanding of the law or facts and I want to make sure that their rationale is sound.

10. Other than court papers, will the parties need anything else that would require drafting or lawyers and how much will that cost? The answer to this depends on the individual situation. There may need to be deeds drafted, Qualified Domestic Relations Orders drafted and there will be a cost for these. Find how in advance how the mediator will handle this? Will the mediator draft the QDRO or Deed if those are necessary?

11. How well does the mediator know the particular court that your divorce will be filed in? This could be extremely helpful and important. I have had situations where timing for filing the divorce was critical because a party was moving out of state. I was able to call the right person at the court and obtain a date in short order and the clients were able to process their divorce before one of the parties moved. Different courts have different processes. It is helpful if the mediator knows those individual idiosyncrasies so that the clients are prepared when they appear before the court.

12. Are there any downsides to using mediation? There are always pros and cons to every decision you make. Talk to your mediator about what he or she thinks are the pros and cons of the mediation process.

13. Should I have my own lawyer? I always encourage clients to speak to their own lawyer. This is important to talk to the mediator about. Some mediators will not take the mediation if clients do not have lawyers. Talk with your mediator about the role/or non-role of lawyers in the process.

14. Does the mediator meet with clients individually? This is another area that mediators approach very differently. Talk to your mediator about how they approach individual meetings and think about what is important for you on this front. See https://www.amherstmediators.com/2016/07/neutrality-and-transparency.html

Questions you may be tempted to ask but which I don’t recommend?

1. What is your success rate?

2. Do you keep track of what percentage of cases settle?

3. What do you think is fair?

The reason I don’t recommend the above questions is a whole article in itself. Maybe a better question for the mediator would be, “How do you define success?” It is precisely because I do not believe there is just one answer to the question that I don’t like the question of what is my success rate, and why I do not keep a track record or batting average of cases settled.

There are some obvious questions which may or may not be important to you and which probably apply to any situations where you are hiring someone, like

1. How many years have you been mediating?

2. What percentage of your practice is mediation?

3. What percentage of your practice is family law?

4. Are you involved on a local, state or national level with any mediation organizations?

5. Outside of your private practice, in what other ways are you involved in mediation? Are you on any statewide committees? Do you teach or train mediators? Have you published articles on family mediation topics?

I find that clients rarely ask me these questions. It may be that in this age of the internet, most of the answers to those questions could be found on the web or the mediator’s website. If the mediator does not have a website it may be useful to ask some of these questions to get an idea of the background and breadth of knowledge of the mediator. In general though, I find that other than the basic questions discussed at the beginning of this article, most clients are going to use the initial meeting to get a feel and a gut sense for the mediator.

The questions which you should be asking yourself are:

1. Do I feel comfortable with this mediator?

2. Do I feel like this mediator has integrity?

3. Do I feel like this mediator will be fair and balanced and maintain integrity in the process?

4. Based on what I have heard, do I have any concerns about the mediation process in general?

Ultimately, both parties to the divorce action need to be comfortable with the mediator. Sometimes one is comfortable and the other is not. You should feel comfortable that the mediator is skilled, knowledgeable, competent, experienced and has the temperament that works for you. While it may be tempting to base the decision on whether you feel like you can influence the mediator to take your side or like you more or believe in you more, the real test should be, do you feel this mediator is knowledgeable, experienced, skilled, able to maintain neutrality, professionalism and does he or she provide a safe space to discuss sometimes difficult issues?

Oran Kaufman 10/10/18 Oran Kaufman 10/10/18

Even More Conflict Resolution Tips

It’s hard to believe that I wrote the first in this series called Conflict Resolution Tips for Divorcing Couples in 2005. https://mediate.com/articles/kaufmano1.cfm. More Conflict Resolution Tips was written in 2013. https://www.mediate.com//articles/KaufmanO6.cfm#

Despite the over 30 years I have been mediating, I keep learning from almost every mediation.

In the first article the tips boiled down to:

1. Conduct a conflict self-assessment (i.e.- take your temperature as it relates to conflict).

2. Normalize conflict (i.e.: conflict happens every day).

3. Conflict is an opportunity.

4. Listen, and

5. Think about what you would like the process to look like when you look back on it years from now.

In “More Conflict Resolution Tips” I added the following to the list:

6. Change your expectations (i.e.: expect bumps in the road).

7. Adverse positions are normal and should not be the death knell of the process.

8. Attorneys are not the enemy (i.e.- the right attorneys can help the process tremendously), and

9. Even though it may take work, make the decisions today (i.e. if possible- don’t kick the can down the road).

In this article, I would like to add some more tips and modify and expand on several previous ones. Here are a few more tips to add to the ever-expanding list:

1. Give yourself the time you need;

2. Take care of yourself/listen to what your inner voice is telling you;

3. Don’t be penny wise and pound foolish (you have spent a lot of time and money and now are stuck- don’t throw it away);

4. Imagine yourself looking at the mediation through a one way mirror- or imagine your children seeing the mediation – how does it look and how would you like it to look?

5. Just as an exercise, try and put emotions aside for a moment and do a cost benefit analysis;

6. Find someone you can talk to about the emotional part as well as the financial.

Let me expand briefly on each of the above.

1.Give yourself the time you need.

Rushed decisions are often bad decisions. There are many pressures on people when they divorce. Maybe you’re contemplating selling a house, buying a house, which school will your children attend and on and on? These are lifelong decisions the impact of which will be felt for a long time. Like any other major decision in your life, take the time necessary to consider the decision and the consequences. Do your research. Consult with your lawyer, friends, accountants or anyone else who you trust to give you a rational perspective. If your spouse is rushing things, then in mediation talk about the pace and why it is important to you to take the time. The pace of mediation is often an issue of contention. It is therefore important to make sure your spouse knows that you are not dragging your feet to slow the process down but rather you need the time to consider the issues. If you are already in court and you feel rushed by the court process, almost any judge I know will gladly give you more time and continue a pre-trial conference or status conference if the judge knows that you are actively engaged in mediation and the additional time will help reach an agreement.

2. Take care of yourself.

Divorce is an anxiety producing process. In addition to life’s normal complexities, you are adding on just about every major life decision to the mix- kids, the house, your retirement, health insurance, taxes, life insurance and the list goes on. It is particularly important during this process that you take care of yourself. By that I mean, the basics, get sleep, eat, try and have some fun and exercise. All those things that are important when life is “normal” are doubly important when you are going through the stress of divorce.

3. Don’t be penny wise and pound-foolish.

Imagine the following not so unusual scenario. You have spent $2,500.00 on your mediation, you have settled 95% of the issues and you reach a stumbling block. You cannot agree on who to name as the life insurance beneficiary. You want to name your sister and your husband wants you to name him. You have resolved all the tough issues and for some reason this one remains. Maybe you have left the most difficult for last or maybe resolving this means you are done and taking that leap is too scary. In any event, I can pretty confidently say that it makes no sense financially and otherwise to terminate mediation and turn it over to lawyers because you cannot resolve that issue. The financial and emotional costs are likely to be very high. Despite this, I see people doing this repeatedly (or at least contemplating it).

This same situation manifests itself in other common ways. For instance, a divorcing couple argues over a few dollars or something financially insignificant because it is “a matter of principle.” This can manifest itself in many ways- “I will agree to nothing less than 50/50 custody!” or, “I was the custodial parent during the marriage and I insist that I have to be the custodial parent post marriage.” If you are at the point where this might be happening, I suggest reviewing some of the other tips here and in previously articles as a way to help you move forward and finish the process effectively. Arguing over “principle” can be a very dangerous and expensive proposition.

4. Imagine yourself looking at the mediation through a one-way mirror.

Sometimes I wonder if it would make a difference if the couple I am working with could just watch themselves through a one-way mirror. On the one hand I appreciate that they feel safe enough to not hesitate to express how they feel. That’s a good thing. On the other hand, I think if people were able to see themselves as an outsider they might be horrified. Maybe more effective than imagining a one-way mirror is for clients to think about how would this look to their children if they were watching. Of course I am not suggesting that this be done. However, I might ask clients who are fighting to think about how it would feel to their children if they saw them fighting. Even if they are not actively fighting in from of their children (hopefully) it trickles down. Kids feel it and if affects them. Is this enough incentive to look for a way to resolve the conflict?

5. Do a cost benefit analysis.

At the end of the day, most of the divorce agreement (with the exception of parenting issues) revolves around financial decisions. The problem and challenge is that this isn’t just a business a deal. There are multiple layers of emotions involved. The ultimate agreement however should be based on a rational financial analysis. If it is emotionally based- i.e. revenge, guilt, anger, fear- there will inevitably be problems down the road. At some point in the process when final decisions need to be made, a simple cost benefit analysis is extremely useful. What are the costs of not settling? What are the benefits of settling? Write them out and sit with it for a while.

6. Find someone to talk with.

Not much elaboration is needed here. Having someone you trust that you can talk about this with is critical. It may be that you talk with one person about the financial and one person about the emotional. The only caveat I would make here is to be careful about not confusing support and a good sounding board with someone who gives you legal advice who has no business giving you legal advice. It is not uncommon what clients come in and tell me they have reached an agreement about something and when I ask how they arrived at the agreement, I find out that it was based on some incorrect legal information/advice they received. That aside, having someone with whom you can discuss the process is invaluable.

Oran Kaufman 10/10/17 Oran Kaufman 10/10/17

Free Initial Consultation

In the mediation class I used to teach at Western New England University School of Law, I would ask the class how many would offer a free initial consultation as a mediator and how many would charge. I am always surprised that the breakdown is almost 50/50 of those that would charge and those who would offer a free consultation. I see a free consultation as crucial. Let me first explain what the free consultation session includes. During this session, which typically can last from as little as 10 minutes to 30-45 minutes, I explain the process, give the clients information about my background, my philosophy about mediation and why I do it and give clients an opportunity to ask questions about any of the above.

What the initial free consultation is not is a free meeting to dispense legal advice. First, as a mediator I cannot and do not provide legal advice and secondly, this meeting is limited to discussion of process. I do not get into substance with clients at this meeting.

Sometimes clients are shopping for mediators. Maybe they have the names of 2-3 mediators and they are trying to decide. I think that is great. Clients should feel comfortable with their mediator. After all, they are going to be engaged in discussions that can be very personal and likely to involved private information about money, children, health, infidelity and more. If clients are shopping I appreciate when they tell me so straight out. Due diligence is important.

A free consultation also allows me to make sure that this process is appropriate for this couple. It may be that for various reasons, I think mediation is not a good fit. Maybe there has been or continues to be domestic violence. Maybe they are not really sure they want to divorce and what they really need first is counseling. In any event, the first session allows me to assess the clients before me as well.

Sometimes, clients come to the first meeting and after my explaining the process to them, they have no questions. Often, I find that maybe they have been referred to me by someone or multiple people and they are pretty sure they want to begin that day. In many of those cases, we may start right then and continue with a paid session. Normally, I would have clients sign a mediation agreement and I charge them for whatever time is spent from that point forward. The first substantive session is spent with my getting basic information from the clients and finding out what they have talked about and what information we still need to get.

If potential clients call and they are not sure about whether mediation is right for them or their spouse or partner is not sure, I encourage them to schedule the free initial meeting. That's what it is for. As a friend of mine once said, "Information is power!".

So, if you are considering mediation, please call me to set up a free initial consultation.

Oran Kaufman 2/19/17 Oran Kaufman 2/19/17

Mandatory Mediation

The Hampden Probate and Family Court Mandatory Mediation Program: A Successful Collaboration between a Probate Court, Law School and a Community Mediation Program

In January of 2016 we began an experimental mediation clinic at the Hampden County Probate and Family Court. The Clinic was a collaboration between the Hampden Probate and Family Court, Western New England University School of Law (WNEU) and The Mediation and Training Collaborative (TMTC), a court-approved, community mediation center in Greenfield. The clinic built upon a pilot mandatory mediation program which had been running at the Hampden Probate Court since the fall of 2014, and was administered by TMTC. Under this pilot, the court referred 4 cases per month (2 cases on 2 separate dates). TMTC scheduled mediators to conduct the sessions, and conducted intakes and screening in each case prior to the scheduled date.

Starting in January 2016, for the duration of the WNEU winter semester, the court referred two cases per week to the clinic. The litigants were required to attend the clinic, which provided free mediation to the participants. I was the qualified mediator charged with conducting each session. Reaching agreement was obviously voluntary. I supervised two WNEU law students who had previously taken a semester-long family mediation class I teach at the law school. Although they had had a great deal of experience with role play mediation, this was the students’ first experience with “real life” mediation situations. In addition to participating in the court mediations which occurred every Wednesday, the students also worked with Betsy Williams, Clinic Coordinator with TMTC on the intakes for the cases. Prior to the mediations, TMTC called and spoke with each participant to give them information about mediation, screen for domestic violence or other issues that could make mediation inappropriate, and to obtain relevant background information for the mediation.

Although attendance was mandatory, theoretically the litigants could have attended the mediation, sat down for 5 minutes and ended the session and they would have technically been in compliance. In practice, not only did this never happen but in almost all the cases mediated, whether high or low conflict, the parties actively participated in the mediation to its conclusion. In addition, although we initially thought no-shows might be a problem, in fact it was never a problem. We had 100% compliance from the participants.

The clinic was a success on multiple levels and resulted in many surprises and unexpected results.

First, from the standpoint of the students, there is nothing like real world experience. As interesting and realistic as role-plays can be in class, they are no substitute for the real thing. Students experienced clients with strong emotions, clients with little affect or emotion, clients with mental illness, clients struggling with poverty, clients with high conflict and clients with seemingly no conflict, clients who were highly articulate and other clients who were difficult to understand. As the semester progressed, students were given more and more responsibility. Initially, they observed me mediating. Each Wednesday, following the mediation, we met for an hour to debrief about the mediations. The students were also required each week to submit a self-reflection paper with their observations about that week’s mediations. As the semester progressed, students took on a more active role, starting with making the opening statement to the parties, explaining ground rules, confidentiality, voluntariness etc. The students then progressed to information gathering and issue spotting. By the end of the semester, each week the students would alternate taking the lead as co-mediator with me under my supervision. There was a similar progression for students’ involvement with the intake process. They began by listening in on the intake/screening calls being conducted by Betsy (with full knowledge of their presence by the clients), then started providing some of the opening information, and ultimately were charged with conducting the intake altogether, with Betsy still on the call to fill in any gaps, as necessary.

One of the biggest surprises of the clinic was the fact that not a single participant ever objected to the students’ participation. Participants were gracious about the law students’ presence. At times it even felt that having the students in the room added some lightness to the atmosphere. The students’ presence almost seemed to calm the clients a bit. There were times when after we had reached an agreement and I had gone upstairs to check in with the clerk about the agreement, I came back and the law students and clients were talking casually. In one case, the mother was talking with the students about her very unusual pregnancy. Participants were asked to fill out evaluations after their session. In addition to the evaluations being almost universally positive, no mention was made in any of the evaluations complaining or negatively commenting on the students’ participation.

From an educational perspective, I believe the students received an experience that in many ways exceeds what they can get in a classroom. While I ultimately would have liked for them to have had more experience being the lead mediator, we also had to be mindful of the fact that this program was also for the benefit of the court and the litigants, and needed to uphold the quality standards for the provision of ADR services in a court-referred case. So, the education that the students received, including possibly the education of blowing a mediation completely (which has its benefits didactically) had to be balanced with the fact that ultimately, we were trying to help the clients settle their cases successfully. Nevertheless, the students experienced having to think on their feet and came face to face with the real-life problems clients faced. As is the case with experienced mediators, students learned how to balance being facilitative and directive when necessary.

From the court’s perspective, I can only assume that the program on many levels was helpful and successful. We had 13 weeks of cases with 2 cases per week. Although I was not keeping a tally of success and failure, my general recollection is that we helped settle approximately 22 or 23 out of 26 cases. In almost all cases, we were able to write up an agreement during the session and the parties saw the judge that afternoon and their agreement was approved or the agreement was approved administratively. In one case, a divorce action, the parties reached an agreement on most of the aspects of their divorce, we wrote up an agreement following the mediation, sent it via email to the parties and after a few minor edits, they had the agreement approved as part of their divorce. So, as a result of the clinic there were 23 fewer cases that needed pre-trials, case management conferences, trials, judges’ time, clerks’ time and the court’s time.

Much of the success was due to the choice of cases sent to the clinic by the judges and judicial case managers. The cases that did not settle often involved a client or clients who were extremely dug in. Or, in several cases we were dealing with a client who was likely suffering from mental illness or drug abuse. In one case, one client simply did not care, was not interested in engaging with his ex-partner and was absolutely unwilling to engage in the mediation in any productive way.

Many of the cases that did settle had certain similarities. They often involved young parents who were never married and had a young child together. Many of these cases involved two young people who simply were not good at communicating with one another. A common element was a new boyfriend or girlfriend and animosity between the parent and the other parent’s new partner. When given a chance to have a conversation in a safe setting, facilitated by a neutral third party, these litigants almost always resolved the issue which had brought them to court. Sometimes it was hard to even think of them as litigants. What they needed was a forum where they could be heard, where they were given full attention and where they had more than the five minutes they would receive in a busy motion session. Many times, the young parents just needed some ideas (some of which seemed so basic and commonsensical) about how to communicate with each other. “He never answers my texts;” “Her boyfriend is sending me nasty text” , “She is badmouthing me on social media.” Many of these cases involved the mediators helping the clients come up with communication protocols and ground rules.

Most of the cases we had were not complex financial cases or high conflict child custody cases. They were cases that probably never should have been in court in the first place but for the fact that as a result of poor communication, the parties had no other way to resolve their dispute. On the other hand, we only had 2 hours with the parties so the cases that were most amenable to mediation were cases where there was one or maybe two issues. Although we were able to help two couples reach a full divorce, full divorces were the exception. Most of the cases involved unmarried couples who had a parenting issue.

From my perspective as a full time private mediator, I had an opportunity to work with a population that I rarely see in my private practice. The vast majority of the cases involved unmarried parents, usually under age 30, most of them at or below the poverty line. I appreciated the challenge of working in unfamiliar territory including poverty, disability and mental illness. In addition, the vast majority of cases I handle as a private mediator are not already in litigation but rather result in an agreement which is then filed as a 1A divorce. Cases that are already in litigation have a different flavor and require different approaches which I had the opportunity to try out. As a teacher, I struggled with, but appreciated the challenge of balancing my desire to give my students experience and opportunity to succeed and fail, with my internal pressure to get the case settled for the court. Finally, this was the first time I had the experience of having people other than my clients seeing me actually conducting a mediation. It was therefore a wonderful learning experience to hear from my students what they observed me doing, what worked and what didn’t work.

Some things I learned and was surprised about:

1. If these cases were any indication, there are many cases clogging up the court system which simply do not belong in the court system or could be avoided with some early intervention. Some of these cases really did not involve a conflict. Litigation however was the only way that one party could communicate with or force some action from the other party. I don’t know how else to say it, but that’s just crazy.

2. In a few cases we struggled with what to do in the cases where one party was pro se and one party had an attorney. We opted for allowing the attorney to sit in on the mediation. In both cases where that occurred, we asked the pro se party if he or she had an objection to the presence of the other party’s attorney. In one case, the client and her attorney opted for not having her attorney in the mediation. When the attorneys did participate (even in the case where there were two attorneys) they were very helpful to the mediation. They helped give their clients a reality check when it was necessary. They were also helpful in explaining things that their clients were having difficulty understanding. As long the ground rules were established at the outset and followed, having one or two attorneys in the room was very helpful.

3. I was surprised that despite the fact that the mediation had been ordered by the court, there was no resentment of that by the clients (except in one instance). Again, with perhaps that one exception, when the parties walked into the mediation room, they were ready to engage in the process rather than complain about it. The concept of mandatory mediation is still a subject of debate in the mediation community, with some practitioners opining that mandatory mediation is a contradiction in terms. Before this clinic, I probably would have agreed with that sentiment. I have a different view now. Most of the people we saw were below the poverty line. Most of the parties we saw had at most a high school education. Private mediation was out of reach for most of the participants because of the cost. Community mediation programs with sliding fee rates may have been an option but I suspect that other than through court, most of the litigants would have had no access to or knowledge about these community mediation options. Ultimately, at least in this small sample, the fact that the participants were being ordered to attend got them in the door. They all participated, not a single participant complained about being mandated to attend and there was a high settlement rate for the program. This was after clear communication at the beginning of each mediation that explained that although they were mandated to attempt mediation, settlement was voluntary and they were in control of the outcome.

4. I was actually shocked that no one ever complained about the fact that there were three of us in the room (the two students and my myself). When setting up the program, I fretted over whether we should have both students in the room or just one student and me. No one seemed to be bothered by having three extra people in the room and in fact, as stated above, it may have helped calm the mediation in an unexpected way.

Conclusion

This particular program came about as a result of a perfect storm of sorts. A law school that was interested in and committed to providing its students with externships and real-world experience connected with a busy probate court with many pro se parties and a judge who is committed to the expansion of alternative dispute resolution in the courts in general and in the Hampden Probate and Family Court in particular. In addition, we were fortunate to be able to partner with a community mediation organization that has a lot of experience providing mediation services in the probate court, the administrative skills necessary to run the program and the flexibility to make the adjustments essential to make the program work. And finally, this was all combined with the willingness of the Chief of the Probate and Family Court who was prepared to give the program the go ahead.

In retrospect, while I cannot speak for others involved in the program, I recognize that I may have been somewhat naïve in structuring the program. That is, I agreed to plug the law school clinic into a mandatory mediation program before really understanding and exploring the pros and cons of the mandatory mediation model. As I have begun to read more about mandatory mediation programs around the country and about mandatory mediation in general, I realize that there were a number of issues that I did not consider. For instance, should there be sanctions for non-participation or should parties be entitled to opt out. Should cases referred to mediation be chosen randomly or be handpicked by the judge or court personnel? And how much information should the court have about what transpired in the mediation? This is in addition to the more philosophical and theoretical (but still important) questions like “Is mandatory mediation antithetical to the whole notion of self determination of the parties?” There are a multitude of scholarly articles on the topic of mandatory mediation. An excellent article that delves into many of these issues is Peter Salem’s article entitled, “The Emergence of Triage in Family Court Services: The Beginning of the End for Mandatory Mediation?” 47 Fam. Ct. Rev. 371 (2009). On the other hand, sometimes ignorance is bliss. Had we tried to address all of these issues in the first year, we may never have gotten the program off the ground. From a purely anecdotal standpoint, it appears that the clinic was a great success. As we enter our second year, we will start to address some of the above issues and others as they become or appear appropriate. For now at least, our experiment has been a success in almost all respects. It has benefitted clients (as reported by the clients), benefitted the courts by reducing caseload, and benefitted the law students by providing real world experience mediating.

Oran Kaufman 7/28/16 Oran Kaufman 7/28/16

Neutrality and Transparency

NEUTRALITY AND TRANSPARENCY ARE TWO CRITICALLY IMPORTANT CONCEPTS IN MEDIATION. WHAT DO THEY MEAN IN THE MEDIATION CONTEXT?

Maybe it is easier to start with what they do not mean. Being neutral is not like neutral on your automobile gear shift. It does not mean lack of motion, lack of movement or inertia. Neutral does not mean blasé or like a neutral color that blends and neutral is not vanilla. In mediation however, neutrality is key. Neutrality in mediation means that the mediator is not siding with one or the other party. Neutrality means that the mediator does not have a stake in the outcome except to insure that the process is fair, that the clients are fully informed, that they understand what they are agreeing to and ultimately believe their agreement is fair and reasonable.

I often distinguish for my clients the difference between the term neutral and unbiased. As much as I would like to be, I do not believe that as a mediator I am unbiased. I don’t believe any mediator can ever be completely unbiased. We all have our biases, worldviews, prejudices and leanings. A good mediator however will recognize those biases and not let them influence the direction of the mediation and the self-determination of the clients. Neutrality means not letting your internal biases guide or even affect the mediation. Neutrality means that both parties feel that you are on their side or that neither feels you are on their side or the other party’s side. Neutrality does not mean you will sit there like a lump on a log and not take action (i.e. be in neutral on the gear shift). To the contrary, neutrality involves hard work. It involves constantly gauging, assessing, measuring and figuring out what you need to do while remaining in the neutral zone. It is helpful to think of it like a light gauge on a camera. For a good photograph, you want the needle to generally be in the middle of the gauge- not too dark and not too light. To do that you are always making adjustments to the aperture, the speed, the film speed etc.

Transparency is the second concept which is critical to a successful mediation. For me, as a mediator, it is important that both parties hear and see the same information. It is critical that neither party fears that I have information from the other party that they do not know about. Finally it is critical that all information necessary for resolving the dispute is on the table and subject to inspection or questioning by both parties (or all parties if a multi-party dispute). There should be no secrets, no secret deals, no secret emails, phone calls or conversations. I like the word transparent because unlike the word “neutral,” it is what it sounds like. If you look through a transparent piece of glass, you see exactly what is on the other side. That’s how it should be. The mediation should not be opaque or even obscured. In order to make an informed decision, the clients need to clearly see everything in front of them.

Finally, the concepts of transparency and neutrality are inextricably linked in the following simple way. In order for the mediator to be neutral and to be perceived as neutral, there must be complete transparency. How is transparency achieved? When I conduct mediations I have the following simple rules:

1. I will not talk individually to either party unless at some point there is a decision by both parties that they want me to do so. (This is called caucusing and is a subject for another day).

2. I will not accept individual emails from clients. (Again unless there has been a specific agreement to do so although even then I am reluctant to do this).

3. I will not have individual conversations with either client (other than non-substantive calls like to schedule a meeting) again unless we have previously decided to do so.

4. Any information I receive from either client must be shared with the other party (again unless we are caucusing, in which case there is a mutual understanding that each party may ask me to keep certain information confidential).

5. Even before the initial consult, I am very careful to tell the person contacting me that I do not want to receive substantive information from him or her until both parties are in the room. Even if it may not necessarily affect me or the process, it may result in the appearance of lack of neutrality or lack of transparency down the road.

One of the keys to a successful mediation is to provide clients with an environment and space where they feel safe. This does not just refer to physically safe but also to creating a sense for the clients that they can feel safe talking about sensitive issues, and feel that the mediator is professional and taking care of their needs. Part of creating that safe mediation environment is creating mechanisms and a process which insures the mediator’s neutrality and transparency.

Oran Kaufman 3/6/16 Oran Kaufman 3/6/16

Mediation Misconceptions

I have often found it curious that what I see as the two biggest misconceptions about mediation are completely contradictory. I will first preface what follows by stating that this is not based on a qualitative or quantitative analysis of general public perceptions of mediation. Rather, this is based on my own experience with clients I have seen and spoken to over the last 30+ years of doing mediation.

Misconception #1: Mediation only works if you agree.

This one has puzzled me. In my initial consultation with prospective clients I often have heard people ask me if I thought mediation worked if they did not agree. I resist my temptation to be smart alecky and say Duh!?. But, in hindsight maybe it is not such an unreasonable question and may be more a product of the mediation profession’s failure to really properly explain how mediation works. In fact, many of my mediation clients are quite amicable and when I ask them why they are choosing mediation they say it is because they want to remain amicable. But remaining amicable is not synonymous with agreeing on everything. I do occasionally have clients that agree on everything and just need help getting through the process. Mediation is appropriate for them. They are on one side of the continuum. That is, in those cases the role of the mediator is essentially to help them get from point A (married) to point B (divorced). Notwithstanding their professed agreement on all issues, the role of the mediator is still to make sure that they have all the information they need to make an informed decision. I often tell people who come in and say they have everything worked out that it is still my job as mediator to make sure that their agreement is not based on some misunderstanding or misperception of the law or facts. People get this and are appreciative. I may not need to act as traffic cop or translator ( to help them hear each other) but I do play an important role. That is, I am helping the parties finalize their divorce inexpensively and with the comfort and confidence that a professional has helped them through the process and they have covered all the bases.

So is there a place for mediation in cases where people agree? Absolutely. First of all, they may think they agree on everything but you may point out to them issues they did not think to discuss. Tax issues are a good example. They may have decided to not transfer retirement accounts because they did not know that retirements can be transferred in a divorce without tax consequences. Or, they may not have realized that in Massachusetts, former spouses can stay on their former spouses health insurance at no additional cost (with some exceptions). In other words, in these cases, as a mediator one of your roles is to provide the couple with legal information that is critical to their case. This is a valuable role. The alternative is hiring two lawyers, which will inevitably be more expensive. Or, they can have a DIY divorce and risk missing something critical.

Misconception #2: Mediation does not work if parties disagree.

This puzzles me as much as the first misconception. If this is true, then what is appropriate for mediation? I think the source of this misconception is the notion that you have to be amicable to mediate. While having the goal of an amicable mediation is laudable, it is certainly not essential to a successful mediation. Mediation is particularly appropriate for people who do not see eye to eye. The alternative is expensive and protracted litigation and the result of such litigation, particularly if children are involved, is devastating and long lasting. Although working with amicable couples still takes training and expertise, much of the training for mediators revolves around working with families in conflict. Mediators’ training includes learning tools such as reframing, active listening, mirroring and modeling to help parties get unstuck. Watching a skilled mediator help a high conflict couple reach an agreement is a thing of beauty. This is particularly so when the agreement is multi-layered and addresses emotional as well as financial issues.

So, is mediation appropriate when there is conflict? Absolutely. Is mediation appropriate when the couple agrees on everything? Again, absolutely. Mediation is appropriate on a continuum which includes on one end, amicable couples who agree on everything but simply need help with the process, to couples who are high conflict and cannot talk to each other except in the mediator’s office.

Several cautions are in order here. First, if you (the mediator) tend to be a conflict-avoidant person, be alert to the following tendency. When a couple comes in and says we have agreed on everything, the tendency of the conflict-averse mediator is to think to himself, “Great, this will be easy and as a bonus, no conflict!” In fact, in these sorts of cases we mediators need to remain vigilant about our role of understanding how the couple has arrived at the agreement and are they operating with full and accurate information.

Secondly, there may be cases that are simply not appropriate for mediation. For instance cases where there is ongoing domestic violence or where one party has a mental illness that is severe enough to make them not competent to properly participate effectively. You as a mediator may be “hungry” for business and it may be hard to turn away a potential client but there are cases when in fact that would be the prudent and appropriate thing to do.

For the most part though mediation is appropriate on a wide spectrum of cases from cases where parties are extremely amicable to case where parties have a high level of conflict. Mediators wear multiple hats- traffic cop, problem solver, good listener, conveyer of information and coach. The misconceptions may be due to inaccurate portrayal of mediation in the media or it might be the product of our failure as a profession to adequately and accurately explain what we do. As “ADR” becomes seen more as “appropriate” dispute resolution and not “alternative” dispute resolution, this problem will disappear and a fuller and better understanding of mediation will emerge.

Oran Kaufman 11/2/15 Oran Kaufman 11/2/15

Arbitration vs. Mediation

In arbitration, parties make arguments and present evidence to a neutral arbitrator who makes a decision. Often the decision is binding. And, as was widely reported a the New York Times piece on arbitration, In Arbitration, a ‘Privatization of the Justice System’, many times arbitrations are binding and not appealable. Many contracts that consumers enter into every day from cell phone contracts, credit card contracts to contracts for services, now include binding arbitration contracts.

Mediation on the other hand, is not binding and does not involve a decision by the mediator. Rather, in mediation, the mediator facilitates communication between the parties and helps the parties reach a decision rather than making a decision for them. In mediation, the parties stay in control. Mediation is typically voluntary so the either party can stop at any time.

Mediation clients often ask me to advise them what to do. My standard response is that it is not appropriate for me as the mediator to do that. My job as a mediator is to make sure they have all the information they need to make an informed decision. With the information they need, clients are in the best position to determine what is fair. Obviously it is not always as easy as that. It is the mediator's job in those case to help the parties talk and listen to each other to arrive at an agreement that they both agree is fair.

Oran Kaufman 10/27/15 Oran Kaufman 10/27/15

The Divorce Agreement and Lawyers

The Agreement

Once the parties have reached an agreement on most or all of the issues in their divorce, I will draft a proposed agreement. Depending on the complexity of the agreement and the level of conflict, there may be some revisions of the agreement at subsequent meetings. When there is a complete agreement I will draft a final divorce agreement. Interestingly and somewhat confusingly, this final agreement is called a "Separation Agreement".

In Massachusetts, the "Separation Agreement" is the divorce agreement. Once the parties have agreed on the terms of the agreement, they will file this agreement with the court and ask the court to have the agreement incorporated into the judgment of the court. Clients are strongly encouraged to have the agreement reviewed by independent attorneys for each of them before signing the agreement. When I am drafting the agreement, I am putting on papers what the clients have agreed. I am not acting as the attorney for either or both.

Even though many mediation participants come to mediation with the intention of not seeing an attorney, I strongly encourage each client to do so. As mediator I do not provide the participants with legal advice, although, I do provide plenty of legal information. A consulting lawyer will be able to review their proposed agreement and advise them about their individual rights and whether in that lawyer's opinion the agreement is fair or not. After consulting with a lawyer, a client may come back to mediation and discuss proposed changes. While difficult for the other party, ultimately, this is good for the process. With information from his or her attorney, parties have the information they need to make an informed decision.

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