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The Report Fall 2012 Volume 8 Issue 4

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The Report Fall 2012 Volume 8 Issue 4 NEW YORK STATE COUNCIL ON DIVORCE MEDIATION THE REPORT THE R EPORT FALL 2012, VOLUME 8, ISSUE 4 The editors of THE REPORT would like the journal to be a two-way conversation. We encourage healthy NYSCDM debate. In addition to Board of Directors This is the updated version FODVVLF´/HWWHUVWRWKH RIWKHIRUPHU´0RQWKO\ Bobbie L. Dillon, M.S., (GLWRUµZHZHOFRPH\RXU 0DLOHUµ,WLVQRZEHLQJ President comments, feedback, sent via email and is avail- Daniel R. Burns, Esq., able on the web at criticisms, compliments Immediate Past President www.nyscdm.org. The and other thoughts about NYSCDM permits printing anything that appears in Clare A. Piro, Esq., and distribution of this edi- Vice President these pages. We also seek tion of THE REPORT. your suggestions for Bill Hoefer, Esq., The information, opinions, references improvement and areas of Secretary or other materials herein should not be coverage. If you would like considered legal advice on specific David M. Louis, MPA, to publish an article or any subjects, but rather should alert read- Treasurer ers to issues which are raised during other kind of paper in THE mediation. Actual application of any of REPORT, please send us a Kate Bar-Tur, LCSW, FIPA the matters discussed depends on the one-paragraph proposal. facts in each case. Readers and their Gail Ferraioli clients should obtain specific advice The best way to reach us is Ada L. Hasloecher, B.A. from the most appropriate profes- by email to sional. The views expressed by the nyscdmpubs@yahoogroups Susan Ingram, Esq. authors or submitters in THE REPORT are their own and do not necessarily .com. We look forward to Kathy Jaffe, LMSW reflect those of the NYS Council on hearing from you. Divorce Mediation or of the editors. Nadia Shahram, Esq. THE REPORT is published quarterly by the New York State Council on Divorce Mediation. Eli Uncyk, Esq. and Charles (Chuck) M. Newman, Esq., Editors Melissa Burns, Production Manager Entire contents Copyright 2013 New York State Council on Divorce Mediation, Inc., except no claim is made to government works or individual articles for which the author(s) claim(s) copyright. FALL 2012, VOLUME 8, ISSUE 4 PAGE 2 TABLE OF CONTENTS (GLWRU¶V3DJH««««««««««««««««««««««««««««««««««««3 /HWWHUWRWKH(GLWRU«««««««««««««««««««««««««««««««««4 3UHVLGHQW¶V3DJH«««««««««««««««««««««««««««««««««««5 7KH,QWHUYLHZ'DQLHO:HLW]RQ1HXURVFLHQFH«««««««««««««««««««««««6 Upstate Mini-&RQIHUHQFH«««««««««««««««««««««««««««««14 3UDFWLFH,VVXHV&DVHVRI,QWHUHVWDQG1HZ'HYHORSPHQWV«««««««««««««««««««16 $VNWKH(WKLFLVW«««««««««««««««««««««««««««««««««««21 ,QVLGH6FRRS$URXQGWKH&RXQFLO«««««««««««««««««««««««««««28 %RDUG+LJKOLJKWV««««««««««««««««««««««««««««««28 3HHU*URXSV«««««««««««««««««««««««««««««««««29 1RPLQDWLRQV6RXJKW««««««««««««««««««««««««««««««31 3XEOLF$ZDUHQHVVDQG(GXFDWLRQ&RPPLWWHH««««««««««««««««««««31 Downstate Mini-³&RQWHVW´«««««««««««««««««««««««««««32 :HEVLWHDQG/LVWVHUY«««««««««««««««««««««««««««««««««33 THE REPORT PAGE 3 EDITOR·S PAGE Fall merges to winter. The briskness of the air can quicken our pace and maybe even our think- LQJ:HKRSHWKLVLVVXHKHOSV\RXZLWKERWK,QWKHVHSDJHV\RX¶OOILQGAbby Tolchinsky¶Vinterview with Daniel Weitz, the statewide ADR coordinator for the New York State courts. Dan explains some of the neurobiology behind decision-making and other key aspects of mediation. The highlights of the Upstate Mini-Conference that was held in Ithaca in September are brought to us by one of the co-chairs of the event, Robin Abrahamson Masson. We have several substantive articles that you may find invaluable for your practice. We have comments on a number of appellate cases decided in the last several weeks from around the State. They deal with whether there is any defense to a no-fault divorce; the transmutation of separate property into marital property; the standards for changing child custody and visitation; and the pitfalls and traps of writing an ambiguous marital settlement agreement. Each discussion features notes for mediators. No less important for our practices are the many concerns about ethics. In this issue, we feature a conversation among members of the Joint Ethics Committee about what mediators should do when they hear complaints about mediators. :HKDYHVHYHUDOFRQWULEXWLRQVIURP1<6&'0¶VRIILFHUVDQGPHPEHUVDERXWJRLQJV-on within RXURUJDQL]DWLRQ7KHUH¶VDUHSRUWDERXWWKHNovember Board meeting. Bobbie Dillon¶V3UHVLGHQW¶V Page is here. Past President and Nominating Committee Chairman Dan Burns invites suggestions for nominations to the Board. Helene Bernstein fills us in about the Public Awareness & Education Com- mittee. Chuck Newman reports about 1<6&'0¶VSHHUJURXSV, and in particular for this issue, activi- ties this fall at the Manhattan Peer Group. We hope you find this issue to be useful and enjoyable. As always, we appreciate your contact- ing the editors, at [email protected], with any positive or negative comments and sugges- tions to make THE REPORT ever more valuable to our members and other readers. Back To Contents AGE FPALL 2012,4 VOLUME 8, ISSUE 4 PAGE 4 LETTER TO THE EDITOR To the Editor: ,ZDVLQWHUHVWHGLQ\RXUDUWLFOH³0D\)RUPHU/DZ\HUV:KR+DYH%HHQ'LVFLSOLQHG$FWDV0H GLDWRUV"´LQWKH6XPPHULVVXHRITHE REPORT. FDMC addressed this issue several years ago, and now, every new member has to agree to the following statement before becoming a member and when re- newing: By clicking any of the Membership Options below, I hereby affirm: (i) that I have not been disbarred or otherwise lost a license, certification or authorization to practice any profession or business (unless I have been reinstated), and I am not currently suspended from doing so; and (ii) that I have read the Model Standards of Practice for Family and Divorce Mediation and I agree to adhere to them. Given that there is no licensing requirement for mediators at present, it seems especially impor- tant that we set our own standards. Requiring that mediators not be suspended from practice in their profession of origin seems to be the very least we can require. Best, Joy S. Rosenthal President Family & Divorce Mediation Council of Greater New York Back To Contents THE REPORT PAGE 5 PRESIDENT·S PAGE 0HGLDWLRQ¶V7LSSLQJ3RLQW ³7KHWLSSLQJSRLQWLVWKDWPDJLFPRPHQWZKHQDQLGHDWUHQGRUVRFLDO EHKDYLRUFURVVHVDWKUHVKROGWLSVDQGVSUHDGVOLNHZLOGILUH´ ʊ0DOFROP*ODGZHOO7KH7LSSLQJ3RLQW+RZ/LWWOH7KLQJV&DQ Make a Big Difference. /DWHO\,¶YHEHHQJHWWLQJWKHIHHOLQJWKDWPHGLDWLRQLVUHDFKLQJD tipping point. I was recently leading a mediation training. One of the atten- dees, a matrimonial attorney, said she was taking the class because she keeps getting phone calls from po- tential clients asking about mediation. She related a story of a colleague whose client was furious with her EHFDXVHVKHOHDUQHGDIWHUKHUGLYRUFHWKDWVKHFRXOGKDYHPHGLDWHG³:K\GLGQ¶W\RXWHOOPH"´VKHDVNHG angrily. Mediation has become a regular part of popular culture. Although most depictions leave something WREHGHVLUHGSRSXODUVKRZVOLNH³5RFN´³7KH2IILFH´DQG³*HQHUDO+RVSLWDO´KDYHLQFOXGHGPHGLDWRUV LQWKHLUVFULSWV$QHQWLUHVHULHV³)DLUO\/HJDO´IHDWXUHGDPHGLDWRUDVWKHFHQWUDOFKDUDFWHU0HGLDWLRQHYHQ PDGHWKHELJVFUHHQLQ³:HGGLQJ&UDVKHUV´ 7KLVSUREDEO\LVQ¶WDOOWKDWVXUSULVLQJZKHQ\RXUHDOL]HWKDWWKHPDMRULW\RISHRSOHXQGHUWKHDJHRI 30 were exposed to peer mediation in their schools. For them, mediation is just a normal way to resolve dis- putes. Unions have relied on mediators for years to assist in labor disputes. And news outlets report that VSRUWVWHDPPDQDJHPHQWVDUHPHGLDWLQJZLWKSOD\HUVDQGPHGLDWRUVDUHXVLQJ³VKXWWOHGLSORPDF\´DURXQG WKHZRUOGWRKHOSGHFUHDVHFRQIOLFW'RDQLQWHUQHWVHDUFKRIWKHZRUG³PHGLDWLRQ´DQGPLOOLRQVRISDJHV and images pop up. When I started mediating ten years ago, most people had no idea what I meant when I said I was a PHGLDWRU7RGD\LWLVFRPPRQIRUSHRSOHWRVD\³2K,NQRZVRPHRQHZKRPHGLDWHGKHUGLYRUFH´2XU RIILFHUHFHLYHVUHJXODUHPDLOVDQGFDOOVIURPSHRSOH³VHHNLQJLQIRUPDWLRQ´DERXWPHGLDWLRQIRUWKHLUGL vorce. Many of my clients are referred by friends or colleagues who mediated their divorce. ,IQRWKLQJHOVHWKHZRUG³PHGLDWLRQ´LVEHFRPLQJDSDUWRIWKHOH[LFRQ:HDUHQRORQJHUWKHDOWHU native ² we are mainstream. As the largest mediation organization in New York State, the Council, and its members, continue to spread the word about the benefits of mediation as a preferred option when couples DUHGLYRUFLQJ+HUH¶VWRUHDFKLQJWKHWLSSLQJSRLQW Bobbie L. Dillon, M.S., President Back To Contents FALL 2012, VOLUME 8, ISSUE 4 PAGE 6 THE INTERVIEW Daniel Weitz on the Use of Neuroscience In Alternative Dispute Resolution By Abby Tolchinsky I had the opportunity recently to meet with Dan Weitz, the Statewide Alternative Dispute Resolu- WLRQ&RRUGLQDWRUIRUWKH1HZ<RUN2IILFHRI&RXUW$GPLQLVWUDWLRQ0U:HLW]KDVRYHU\HDUV¶H[SHUL ence as a court administrator, and over 20 years of experience in ADR, in roles as varied as administrator, professor, trainer and practitioner. Mr. Weitz recently published an article about findings in the field of neuroscience and how they relate to the work we are doing in the ADR community. Below is a summary of our conversation. In brief summary, recent research in the neuroscience community suggests a potential foundation for the anecdotal experiences of mediators regarding how parties in conflict behave, perhaps couching our practical observations in scientific studies. The research in neuroscience is developing and scientists do cau- tion about drawing conclusions as their research shows correlation rather than causation. While this new field develops, the research provides channels of conversation and reflection for those of us who practice mediation. It does not, however, describe
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