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
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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 1. How does our framing and priming issues in mediation affect trainings and our work? 7KHUHDGLQJ0U:HLW]KDVEHHQLQWHUHVWHGLQRYHUWKHSDVWIHZ\HDUVDUH³DOODERXWWKHEUDLQDQG UHFHQWGHYHORSPHQWVLQQHXURVFLHQFH´7KHUHDUH³GHILQLWHFRQQHFWLRQVWRZKDWZHGRDVPHGLDWRUVIURP IUDPLQJLVVXHVVHWWLQJXSWKHURRPUHIOHFWLQJDQGXVLQJQHXWUDOODQJXDJH´7KHVWXGLHVLQQHXURVFLHQFH Weitz says, show the effectiveness of the things we have been doing as mediators. There are also discover- ies about conscious and unconscious decision-making. For mediators, this added knowledge should affect the attitude and knowledge brought to the process. For mediators-in-training ² or for trainings designed by the State Courts ² it is all about how the advances in our understanding of the brain can relate to develop- ing mediator attitude, knowledge and skills. ³:KHQ\RXORRNDWWUDLQLQJSURJUDPVWKHUH¶VDQHOHPHQWDERXWµZKDWLVFRQIOLFW¶DQGUHIOHFWLQJRQ our negative view of that. We trainers can try to reframe that as having positive potential and that involves shifting attitudes. When we train people, we try to re-orient their approach toward conflict. With respect to skills, we learn how to give opening statements, how to frame, how to bridge impasses. And, of course, knowledge is key. We learn about mediation vs. arbitration, we become aware of the differences among THE REPORT PAGE 7 THE INTERVIEW, continued SURFHVVHVDQGDPRQJSUREOHPVROYLQJFKRLFHV«QHXURVFLHQFHKDVGLUHFWGLVFRYHULHVWKDWJRWRDWWLWXGH NQRZOHGJHDQGVNLOOV´ An example Mr. Weitz touches on in the article examines the impact of stress and sleep depriva- tion on the brain. We as mediators have all observed a party who can only frame the other in negative WHUPV:H¶YHDOVRH[SHULHQFHGWLPHVZKHQWKDWVWUHVVHGSDUW\GRHVQ¶WKHDURUH[SHULHQFHSRVLWLYHDQG flexible things the other may have brought in to the negotiations. It seems that the neuroscience bears out an actual biological foundation for that disconnect. The positive comments, flexible or otherwise, may even be forgotten or not heard at all. In a divorce, with chronic conflict, the stress and the hor- PRQHVPD\DFWXDOO\DIIHFWERWKDSDUW\¶VSHUFHSWLRQDVZHOODVKRZWKDWSDUW\LVH[SHULHQFLQJWKHPHGLD tion. 2. The question that grows naturally from these discoveries is how the mediator can incorporate the growing research of neuroscience into mediation sessions. Can we provide scientific informa- tion, just as we provide legal information? $VDQH[DPSOHLPDJLQHVRPHRQHZKR¶VEHHQVWUXJJOLQJDQGFDQQRWVHHPWRJHWSDVWFHUWDLQ issues, someone who has a hard time seeing the other person as being constructive. What about if you, WKHPHGLDWRUFDQH[SODLQWKHHIIHFWVRIVWUHVVRQPHPRULHV" 3. 5HJDUGLQJFDXFXVLQJDVDWRROLQWKHPHGLDWRU¶VVNLOOVHWGR\RXVHHSRWHQWLDOEHQHILWV" Mr. Weitz reflected on his earlier experiences that brought him to the conclusion that he does see benefits to caucusing. More recently, he has seen how his knowledge of neuroscience can be used GXULQJFDXFXVLQJ³,QWKHVXPPHURI¶ ,ZRUNHGRQQRQ-violent social change and conflict resolution in South Africa. I participated in workshops that entailed using a method of FALL 2012, VOLUME 8, ISSUE 4 PAGE 8 THE INTERVIEW, continued spending some separate time with individual groups prior to bringing the groups together. Those were so helpful ² they were workshops in conflict resolution. So, prior to having a meaningful dialogue with peo- ple, you get skill-EXLOGLQJZRUNVKRSV´ 6LPLODUO\ZKHQZRUNLQJIRU0DULD9ROSHDW-RKQ-D\&ROOHJH³ZHKDGDSURJUDPIRUFRPPXQLW\ police officers and middle school kids. We would meet with kids first and work with them on expectations, on how to ask questions and come up with questions, so they were very prepared for the meeting with the police. It was the same group of police each week. Those preparation meetings informed my approach to mediation. I am not skittish about meeting with the parties separately beforehand, as long as what you do ZLWKWKHPLVSHUFHLYHGDVKHOSIXODQGQRWWKUHDWHQLQJDQGWKH\LPDJLQHWKDW¶VWKHZD\\RXZHUHZLWKWKH RWKHUVLGHDVZHOO´ Imagine an incredibly contentious couple that is ordered to mediate. Imagine further, Mr. Weitz presses, a scenario in which I could have an hour with party A and an hour with party B and used the time not just to go over what to expect from mediation, but also to highlight some neuroscientific findings. ³7KHVHILQGLQJVZRXOGEHDERXWLUUDWLRQDOLW\GHFLVLRQ-PDNLQJFRJQLWLYHEDUULHUVHWF«+RSHIXOO\WKH\¶OO FRPHWRWKHSURFHVVZLWKDQRSHQPLQG7KDW¶VDPRQJWKHEHQHILWVRIHGXFDWLQJSDUWLHVDERXWWKHQHXURVFL ence, so that they can engage in reflection rather than wasting energy trying to prepare to convince the me- diator of their point of view. So, the energy leading up to the first session is productive. In general in a me- GLDWLRQSUDFWLFHWKHUH¶VDFRQWLQXXPRILQWHUYHQWLRQVDQGRQFHWKHUH¶VDIRXQGDWLRQRIWUXVWZLWKWKHPHGLD tor, there are a range of practices they employ in the spirit of problem solving. Neuroscience is an additional LQWHUYHQWLRQ´ 4. One area of discovery involves mirror neurons. Can you explain these? ³,QWKHWUDLQLQJV,WHDFKDW&DUGR]RDQGDWFR-mediations at the Brooklyn Center, I teach aspiring mediators about the discovery of mirror neurons. This area of the brain reacts by imitating others. To illus- trate, when you watch a very young infant smiling back at us, we tend to smile even more at the infant, and VRRQDQGVRRQ7KHLQIDQWLVQRWMXVWPLPLFNLQJWKHDGXOW¶VH[SUHVVLRQEXWLWVHHPVPD\DFWXDOO\EHLPL WDWLQJLQRUGHUWROHDUQ,QRWKHUZRUGVPLUURUQHXURQVDQGUHIOHFWLQJEDFNRWKHUV¶H[SUHVVLRQVPD\EH OLQNHGWRXQGHUVWDQGLQJWKHLQWHQWLRQDQGWKHPHQWDOVWDWHRIRWKHUV´ :HLW]H[SODLQVWKDW³,WVHHPVWKDWPLUURUQHXURQVDUHUHVSRQVLEOHIRURXUDELOLW\WRHPSDWKL]HZLWK others. When you frown, the same motor neurons that would make me frown are firing. Thus, the firing of P\QHXURQVDOORZVPHWRDOVRIHHOVDG7KLVLVFDOOHGWKHRU\RIPLQG´1HXURVFLHQFHVHHPVWREHLQGLFDWLQJ that by age two or so, children realize that other people have their own worlds. These neurons are firing. Another example, imagine watching a ballet and wiggling, perhaps imperceptibly, in your seat. THE REPORT PAGE 9 THE INTERVIEW, continued The discovery of mirror neurons is linked to mediator modeling as well as to understanding the ZD\VWKDWSDUWLHVLQVWUXJJOHFDQHDVLO\EHGUDZQLQWRDFRQIOLFWG\QDPLF³:HKDYHDSHUFHQWDJHRIPRWRU QHXURQVLQRXUEUDLQVWKDWDUHUHVSRQVLEOHIRUDFWLRQDQGWKRVHQHXURQVILUHWRUHIOHFWWKHDFWLRQVRIRWKHUV´ says Weitz. Therefore one may appreciate the conflict dynamic as driven, at least in part, by automatic imi- tative behavior. But this also means that a mediator may interrupt this dynamic by providing another inter- SUHWDWLRQRIDSDUW\¶VPHVVDJH7KDWLVE\UHIOHFWLQJEULQJLQJXQGHUVWDQGLQJDFNQRZOHGJLQJIUXVWUDWLRQV and citing positive goals, the mediator can shift the tone in the room. Remaining calm, regardless of the emotional state of the parties, is a component of how we are able to provide an anchor of empathy and calm in the midst of rancor and conflict. Mr. Weitz recalls observing his law school students during a mediation in which the parties came in almost ready to settle. They were very close to agreement. However, a detail had been overlooked and when it came up, it set the parties off. The communication devolved into threats and anger. Mr. Weitz re- FDOOVQRWLFLQJKLVVWXGHQWV¶H\HVDQGSRVWXUHVKLIWLQJDVZHOO³,OHDQHGEDFNWRRNDGHHSEUHDWKDQGVPLOHG a bit. The more intense they got, the calmer I got, hoping that they, the students, would mirror that. At a PLQLPXP,GRQRWZDQWWRFRQWULEXWHWRWKHHVFDODWLRQ´:HLW]H[SODLQV0RGHOLQJFDOPHUEHKDYLRUFDQ help the parties in this situation. Mr. Weitz further reflects that this type of escalation is particularly common at the end of a media- WLRQ³)HDUFRPHVLQWRSOD\´KHVD\V7KDWVKLIWLQWKHPHGLDWLRQLVVXFKDYXOQHUDEOHPRPHQW6RDVSUDF titioners, we ought to be trying to normalize the dynamic, not just with words, but also in the physicality, the non-YHUEDOXQFRQVFLRXVFRPPXQLFDWLRQDVZHOO:HLW]VD\VWKDWDFFRUGLQJWRWKHVFLHQFHWKDW¶VHYHQ PRUHSRZHUIXOWKDQGLUHFWYHUEDOFXHV/HVVRQIRU0U:HLW]¶VVWXGHQWV ³ 5. Are there other ways the neuroscientific breakthroughs are contributing to the Court trainings? ³&RXUWDWWRUQH\WUDLQLQJVDQGZRUNVKRSVRQVHWWOHPHQWVNLOOVERUURZIURPWKHPHGLDWRUV¶WRROER[ seeking to increase party satisfaction and to provide durable results. We have used examples from studies that had been done. Baruch Bush has always used this and tied it into concepts of justice. So have Nancy :HOVFKDQGRWKHUV,DOZD\VWKRXJKWWKHVHZHUHLQWHUHVWLQJ´VD\V:HLW] So, in talking about opening statements, court attorneys are often under time constraints and may not traditionally give consideration to the specific tone and content of these openings in the manner that me- diators have been trained to do. Weitz recommends using the early interactions as a means for setting up H[SHFWDWLRQV:KHQFRXUWDWWRUQH\VEHJLQZLWKVWDWHPHQWVWKDWH[SUHVVDSSUHFLDWLRQIRUSDUWLHV¶SDUWLFLSD tion, a hope for meaningful contributions toward settlement and for working in the spirit of collaboration FALL 2012, VOLUME 8, ISSUE 4 PAGE 10 THE INTERVIEW, continued among the parties ² that can have a powerful effect. Weitz explains that studies regarding priming sug- gest that framing the initial interactions can bring out cooperative or negative behavior in people. That understanding, in turn, means that giving some thought to both the physical environment and to the open- LQJZRUGVFDQIDFLOLWDWHDQHQYLURQPHQWRIFRRSHUDWLRQ³7KHUHLVDFRQFUHWHUHDVRQWRSUHSDUHDQRSHQLQJ statement, even one as simple as, I appreciate you all being here, this is an opportunity for all for us to XQGHUVWDQG\RXUFDVHDQGVHHLIZHFDQPDNHVRPHSURJUHVVJRLQJIRUZDUG´VD\V:HLW] Once the court attorneys have been exposed to the concept of mirror neurons and how they may be positively affected by a thoughtful opening statement, Weitz will add to their understanding by telling WKHVWRU\KHUHDGDERXW.RUHDQ$LUOLQHV¶FUDVKUHFRUGVGXULQJWKHPLG- ¶V7KHLUGLVPDOUHFRUGKDG times the number of crashes and fatalities as other airlines. Why? Upon careful studies, it turned out to be based on communication between the pilots and co-pilots, two professionals who did not function as equals. Rather, they were trained in a communication culture of caste, class and military hierarchy so that the co-SLORW¶VVSHHFKWRWKHSLORWZDVSDVVLYHDQGLQGLUHFW$VDUHVXOWFUDVKHVRFFXUUHGIURPWKHDFFXPX ODWLRQRIPLQRUPDOIXQFWLRQVDQGPLVFRPPXQLFDWLRQV6RWRRLQPHGLDWLRQQHJRWLDWLRQVWKH³FUDVKHV´ result from an accumulation of miscommunications as opposed to a glaring error in judgment. Focusing on the small opportunities along the way can make the difference in bringing the conflict to a safe land- LQJ:HLW]H[SODLQV³,I\RXVKRZWKDWVRPHWKLQJPLQRUDQGWULYLDOLQLVRODWLRQFKDQJHVDVDQDFFXPXOD tion of contacts and skills are employed, then in the trainings you can move from explaining the potential impact of the opening statement to the effect of framing, reflective practice, parties feeling heard and un- GHUVWRRGHWF«´ 6. Are there cognitive barriers to decision-making that you bring into trainings? 0U:HLW]GLVFXVVHGVHYHUDO+HVKDUHG³,UHFHQWO\GLGDQHXWUDOHYDOXDWLRQWUDLQLQJIRUDWWRUQH\V A component was on the neuroscience of decision-making and cognitive barriers, and the dynamics of cognitive decision-PDNLQJ2QHFRQFHSWFDOOHGFRJQLWLYHFRVWVRIH[SHUWLVHLVWKHLGHDWKDWZKHQ\RX¶UH DQH[SHUWLQVRPHWKLQJWKHUHDUHREYLRXVO\ZRQGHUIXOEHQHILWV%XWWKHUHDUHDOVRFRVWV´,QDQH[SHUL ment, some grand master chess players and some amateur chess players were tested to see if the myth that WKHJUDQGPDVWHUVKDYHEHWWHUPHPRU\FDSDFLW\LVWUXHRUQRW³6RWKHVFLHQWLVWVSXWDEXQFKRISLHFHVRQ the board ± everyone looked and then they were tested in returning the pieces as they had been. The mas- ter chess players did better than the amateurs. OK, but those were known formations. So next the scien- WLVWVWHVWHGZLWKWKHWKHVLVµ:KDWLIZHDVVLJQWKHSLHFHVLQDUDQGRPPDQQHU"¶:KDWWKHVFLHQWLVWVDUH testing is expertise ± otherwise known as chunking. What they discovered is a lack of attention to detail E\H[SHUWV´([SHUWVDUHPRUHOLNHO\WRPLVVQHZRUVXEWOHFKDQJHVLQLQIRUPDWLRQEHFDXVHWKH\KDYHFRJ nitive blind spots. THE REPORT PAGE 11 THE INTERVIEW, continued $QRWKHUH[SHULPHQWGHPRQVWUDWLQJWKLVWKHVLVLVWKH³VWRRS´WHVW$EXQFKRIZRUGVIODVKRQD screen and rather than reading and remembering the words, the test subjects are asked to remember the FRORUWKHZRUGVDUHSUHVHQWHGLQ6RWKHZRUG³UHG´PLJKWVKRZXSRQWKHVFUHHQLQWKHFRORUEOXH Weitz uses this test in mediation trainings. The participants have to turn off the automatic functioning of the brain; they have to actually stop themselves from reading and only look at color. This experi- PHQWLOOXVWUDWHVWKDWWKHFRVWRIH[SHUWLVHWKDWRFFXUVZKHQDQLQGLYLGXDO¶VIXQFWLRQLQJEHFRPHVDXWR PDWLF³ 7. Moving beyond the downside of expertise, is there an upside that the science bears out, or some indication of how to make decisions? Continuing along the neuroscience input, Mr. Weitz explains that there is a tension between HPRWLRQDQGFRJQLWLRQ(PRWLRQLVVHHQDVGLPLQLVKLQJRQH¶VDUJXPHQW UHDVRQDVWKHEHVWEDVLVIRUGH cision-making. But, the thought that we can eliminate emotion from our thinking is naïve. The more LQIRUPHGZHDUHWKHEHWWHURXUGHFLVLRQVZLOOEH³'RZHXVHJXWIHHOLQJVRUORJLFUHDVRQ"´DVNV:HLW] Studies show that emotion can be amazing in terms of making decisions, but it can also fool us, just as reasoning skills can. Mr. Weitz went on to share the story of a radar control professional serving in the military in Iraq. His job entailed looking at radar screens for hours each day. He had become an expert; doing his work automatically, he chunked. Friendly A-6 fighter jets always appeared in a specific way on the screens. One day, a Silkworm missile, known to be used by the enemy, appeared on the third wave of the concentric circles that usually depicted fighter jets. And there was an eight second deviation from the typical timing. In other words, the radar control expert picked up a small shift in the pattern. When he saw the Silkworm blip, he had an internal reaction. Some call this a sixth sense. In just a moment FALL 2012, VOLUME 8, ISSUE 4 PAGE 12 THE INTERVIEW, continued of time, he had to determine whether to shoot down a possible enemy missile, thus saving hundreds of lives; or risk shooting down an allied A-6 fighter, a potentially tragic error with lethal consequences. He did, in fact, save lives. As an expert, a sixth sense about something should be followed. The emotional EUDLQWULJJHUVWKHVHDUFKIRUDUHDVRQHGUHDFWLRQWRWKH³JXW´ Weitz says that this dramatic story can be explained by the neuroscience research into our ability WRSUHGLFWSDWWHUQV:KHQWKLQJVJRDVH[SHFWHGWKHUH¶VDERRVWRIGRSDPLQHDQHXURWUDQVPLWWHUUHVSRQVL ble for reward-GULYHQOHDUQLQJ³7KLVWHOOV\RXWKHSDWWHUQZDVULJKW,I\RXGRQRWVHHZKDW\RXH[SHFW dopamine is inhibited, signals are sent to brain parts associated with fear ² \RX¶UHVKRFNHGLQDVWURQJHU PDQQHUWKDQZKHQ\RXJHWWKHH[SHFWHGGRSDPLQHUHVSRQVH´6RZKHQWKHOLHXWHQDQWIROORZLQJWKHUDGDU VDZWKHEOLSKHKDGDQLQWHUQDOUHDFWLRQ,I\RX¶UHDQH[SHUWDQG\RXKDYHDVL[WKVHQVHDERXWVRPHWKLQJ JRLQJZLWK\RXUJXWVKRXOGZRUN 8. How else do these expertise areas affect decision-making? $QRWKHUIDVFLQDWLQJH[DPSOHRIKRZH[SHUWLVHFDQZRUNWRRQH¶VGHWULPHQWLVZKHQZHH[SHULHQFH FRJQLWLYHGLVVRQDQFH³3HUKDSVDSROLWLFDOFDQGLGDWHZHVXSSRUWPDNHVDVWDWHPHQWZHGRQRWH[SHFWWKHQ we suppress the prefrontal cortex, the area of logic and reasoning. Rather, the hippocampus, an area of QHXWUDODQGSRVLWLYHPHPRULHVLVHPSOR\HG THE REPORT PAGE 13 THE INTERVIEW, continued 0U:HLW]¶VPRVWUHFHQWDUWLFOHRQWKLVWRSLFLV ³7KH%UDLQV%HKLQG0HGLDWLRQ Reflections on Neuroscience, Conflict Resolution and Decision-0DNLQJ´ CARDOZO J. CONFLICT RESOLUTION 471 (Spring 2011), which is available at http://cardozojcr.com/vol12no2/471-490.pdf. Abby Tolchinsky, Esq. is a founding partner of Family Mediation LLP, a family and di- vorce mediation and legal consulting firm in Manhattan and Westchester. She and her business partner, Ellie Wertheim, Esq., are regular columnists for the New York Law Journal as well as bloggers for the Huffington Post. Abby can be reached at (212) 462- 4050 or [email protected]. Her website is at www.nyfamilymediation.com. Back To Contents FALL 2012, VOLUME 8, ISSUE 4 PAGE 14 UPSTATE MINI-CONFERENCE By Robin Abrahamson Masson, Esq. The fall Upstate Mini-Conference drew an actively engaged group of about 30 mediators who convened at the Tompkins County Public Library in Ithaca. All participants had an opportunity to ex- change ideas with each other and with the presenters, making each workshop more interactive and dy- namic than the usual lecture-style format. Organized by Susan Brown and Robin Abrahamson Masson, the morning began with a terrific presentation on Money and Emotions by Beth Danehey, a mediator, and Donna Maier, a Certified Di- vorce Financial Analyst, both from Rochester. They explored the variety of meanings and significance money has for our clients. They discussed interventions that we, as mediators, can use to help clients identify the emotional significance of money and work through the conflicts they may have with each other. Using examples from cases they have worked on together, they gave many examples of how, with an understanding of human dynamics and of the stresses that divorce creates, we can help our cli- ents to find a comfortable resolution to very difficult and complicated situations. Participants had an opportunity to share and address difficulties in financial areas that they faced in working with particular clients. %HIRUHWKHOXQFKEUHDNZHFHOHEUDWHG6XVDQ%URZQ¶VZHOO-earned retirement from mediation practice, and thanked her for the service she has done to the profession and friendship she has given to all of us. Lunch, provided by Ithaca Bakery and or- ganized by Cili Phillips of Ithaca, gave us a chance to catch up with old friends and PDNHQHZRQHV0DQ\RIWKHGD\¶VSUHVHQWHUVVWD\HGIRUOXQFKJLYLQJXVDGGLWLRQDO opportunities to learn from them. Susan Brown at the Laura Ward, LMFT, of Ithaca, gave a fascinating presentation on developing parent- Mini-Conference ing plans for families with children with special needs. She identified the types of special needs that children might have and the varying emotional reactions each parent may have to OHDUQLQJRIWKHLUFKLOGUHQ¶VVSHFLDOQHHGVDQGFRSLQJZLWKWKHPRYHUWLPH,QRUGHUWRKHOSRXUFOLHQWV construct parenting plans in these situations, we need to be sensitive to the financial, medical, educa- tional, and informational needs of the child and the family in general, in addition to a host of other is- sues that may not be present in other families. The take-away message was that in order to be success- ful, we need to be able to educate ourselves; make sure both parents have access to resources, informa- WLRQDQGVXSSRUW YDOLGDWHERWKSDUHQWV¶H[SHULHQFHV FRYHUDOOWKHEDVHV DYRLGFRRNLH-cutter ap- proaches; and include both parents in creating solutions. Recognizing that not all of our clients are white, middle-class, or from the Euro-Judeo-Christian traditions, the capstone of the day was a panel presentation about some multi-cultural aspects of divorce and mediation. Jorge Cuevas, who is Puerto Rican; Nadia Sharam, who is Iranian; Awura-Abena THE REPORT PAGE 15 UPSTATE MINI-CONFERENCE, continued Ansah, who is Ghanian; and Mariette Geldenhuys, who is South African, shared their experiences and WKHLURULJLQDOFXOWXUHV¶YDOXHVDQGRULHQWDWLRQVWRGLYRUFHFRQIOLFWUHVROXWLRQIDPLO\DQGRWKHULQWHUHVW ing factors that play into our work. Each described his/her cultural norms about family, family roles, JHQGHUUROHVDQGDWWLWXGHVWRZDUGFRQIOLFWDQGGLYRUFH1DGLDVKDUHGDYLGHRRIWKH³PHGLDWLRQ´RID divorce in a traditional Muslim family. There was lively discussion among the panelists and the audi- ence, which could have gone on for a much longer time than was allotted. All in all, it was an interesting and valuable day, contributing to each who attended becoming a better and more thoughtful mediator. Thanks to the NYSCDM for sponsoring the conference and pro- viding us an opportunity to learn from and with each other. Robin Abrahamson Masson, a lawyer and former Clinical Attorney and Lecturer at Cornell Law School, is a lawyer and mediator in private practice in Ithaca. She was trained in mediation at Community Dispute Resolution Center in Ithaca. Robin is an Accredited Mediator member of the NYSCDM, and is a founding member, the Secre- tary, and former President of the Ithaca Area Collaborative Law Professionals. Robin may be reached at [email protected] or (607) 273-7200. Her website is at www.massonlaw.com. Back To Contents FALL 2012, VOLUME 8, ISSUE 4 PAGE 16 PRACTICE ISSUES, CASES OF INTEREST AND NEW DEVELOPMENTS No Kidding, No Fault. Palermo v. Palermo. /DVWIDOO0RQURH&RXQW\6XSUHPH&RXUW-XGJH5LFKDUG'ROOLQJHUUXOHGWKDW³QR-IDXOW´UHDOO\ means no fault. Palermo v. Palermo, 35 Misc.3d 1211(A), http://decisions.courts.state.ny.us/fcas/ fcas_docs/2012apr/27000200388302011sciv.pdf (Sup Ct Monroe Cty 2011), was a case filed in early DIWHUWKH2FWREHUHIIHFWLYHGDWHRIWKH³QR-IDXOW´GLYRUFHOHJLVODWLRQ7KHSURFHGXUDOKLVWRU\ is a little complicated, not least because the wife had sued for divorce in 2001 but had her case dis- missed because she failed to prove to a jury that the husband had been cruel and inhuman to her. Jus- tice Dollinger ran through a history of no-fault divorce in New York, including the enactment of the ODZ7KHKXVEDQGVRXJKWWRGLVPLVVWKLVGHFDGH¶VGLYRUFHFDVHRQWKHEDVLVRIWKHIDFWWKDWWKH parties had been separated for so long (since the first case) that the statute of limitations had run on the ZLIH¶VFODLPRI³LUUHWULHYDEOHEUHDNGRZQ´RIWKHPDUULDJHIRUDSHULRGJUHDWHUWKDQVL[PRQWKV Second time was the charm for Mrs. Palermo. Justice Dollinger described the question before KLPODVWIDOODVEHLQJ³ZKHWKHUWKHYHULILHGVWDWHPHQWRIµLUUHWULHYDEOHEUHDNGRZQ¶RIDPDUULDJHLQLW self, without a trial, provides the necessary predicate to granting a divorce under ... Domestic Relations /DZ´ ,QRWKHUZRUGVLVLWVXIILFLHQWXQGHUWKHQHZVWDWXWHIRUVSRXVH$VLPSO\WRVZHDUWKDW LW¶VEHHQRYHUIRUKLPRUKHUIRUDWOHDVWVL[PRQWKVRULVVSRXVH%HQWLWOHGWRDWULDOWRFURVV-examine DQGRWKHUZLVHFKDOOHQJH$RQZKHWKHURUQRWLW¶VWUXHWKDWLW¶VEHHQRYHUIRU$IRUDWOHDVWVL[PRQWKV" Justice Dollinger ruled that §170(7) simply requires the filing of a sworn statement, so a defendant may not defend a no-IDXOWGLYRUFHE\FKDOOHQJLQJWKHWUXWKRIWKHSODLQWLII¶VVZRUQLQFDQWDWLRQRIWKHVWDWX WRU\ODQJXDJH7KHGHIHQGDQWFDQ¶WDOOHJHWKDWLW¶VWRRODWHWRVHHNDQR-fault divorce. The news is that the ruling was affirmed by the Appellate Division, Fourth Department, on November 9, 2012. ___ A.D.3d ___, http://www.nycourts.gov/courts/ad4/clerk/decisions/2012/11-09-12/pdf/1206.pdf (4th 'HS¶W 7KH$SSHOODWH'LYLVLRQUHOLHGRQ-XVWLFH'ROOLQJHU¶VGHFLVLRQZLWKRXWDQ\DGGLWLRQDOOH gal reasoning of its own. Since mediators tend to work with parties who expect to file uncontested divorces, why do we FDOODWWHQWLRQWRWKLVFDVHKHUH"7KHSDUWLHV¶DOWHUQDWLYHRXWFRPHVLQFRXUWDUHRQHRIWKHUHDOLWLHVLQ which they are deciding whether and how to resolve their issues themselves. The Palermo case tends to OHWHDFKSDUW\NQRZWKDWKHRUVKHFDQ¶WKROGRXWIRUD³EHWWHU´GHDOE\WKUHDWHQLQJWRHQGPHGLDWLRQDQG contest a divorce, if they both know that all the other spouse has to do to be entitled to a divorce is to swear to irretrievable breakdown for at least six months. The case is also a good reminder that a party will not have the opportunity to vent, express out- rage or otherwise rehash the unhappy history of the marriage in litigation. Mediators may allow that (subject to their wisdom and skills), but courts are just not interested. THE REPORT PAGE 17 PRACTICE ISSUES, ETC., continued :KDW¶V0LQHLVJohnson v. Johnson. Uh, uh, uh. Not so fast. A recent Second Department case reminds us that we have to be careful to deal with all the relevant facts about marital property when considering equitable distribution. By the SURFHVVFDOOHG³WUDQVPXWDWLRQ´LQ1HZ LQFUHDVHLQWKHYDOXHRIVHSDUDWHSURSHUW\UHPDLQVVHSDUDWHSURSHUW\³H[FHSWWRWKHH[WHQWWKDW VXFKDSSUHFLDWLRQLVGXHLQSDUWWRWKHFRQWULEXWLRQVRUHIIRUWVRIWKHRWKHUVSRXVH´ 'RPHVWLF Relations Law § 236 [B] [1] [d] [3]; [case citation omitted]). At that point, the increase in value becomes marital property, in accordance with the rule that the definition of marital prop- erty is to be broadly construed, given the principle that a marriage is an economic partnership [citations omitted]. The record establishes that the appreciation in the value of the marital residence was attributable to the joint efforts of the parties [citations omitted]. Thus, the >KXVEDQG@LVHQWLWOHGWRVKDUHHTXLWDEO\LQWKDWLQFUHDVHGYDOXHIURPWKHGDWHRIWKHSDUWLHV¶ marriage. 7KHFRXUWZHQWRQWRKROGWKDW³WKHUHQWDOLQFRPH>WKHZLIH@UHFHLYHGDOWKRXJKLQLWLDOO\VHSDUDWH SURSHUW\EHFDPHPDULWDOSURSHUW\VXEMHFWWRHTXLWDEOHGLVWULEXWLRQ7KH>ZLIH¶V@RZQWHVWLPRQ\WUDFHG the money to a certificate of deposit at Astoria Federal Savings naming the [husband] as the beneficiary, DQGGHVFULEHGWKHSURFHHGVDVµMRLQWPRQH\IURPWKHUHQWDORIWKHDSDUWPHQW¶>FLWDWLRQVRPLWWHG@´ Transmutation will not be a new concept for most readers, but Johnson provides another reminder to mediators that if the parties are to be fully knowledgeable before resolving the economic aspects of their divorce, they must disclose and discuss the relevant facts about all their assets, liabilities, income DQGH[SHQVHVWRKDYHDJUDVSRIKRZDOOWKHIDFWVDIIHFWERWKSDUWLHV¶ULJKWVDQGREOLJDWLRQV Remember that labeling property as marital is only the first step. Once an asset is determined to EHPDULWDOWKHFRXUWVPXVWGLYLGHLW³HTXLWDEO\´DQGRQHRIWKHIDFWRUVLQHTXLWDEOHGLVWULEXWLRQLVDFRQ sideration of whose efforts brought the asset into the marriage. In this case, the wife only lost the labeling issue, but not necessarily the equitable distribution issue. There is no substitute for reading the factors ZKLFKPXVWEHFRQVLGHUHGLQGHWHUPLQLQJKRZWRGLYLGHSURSHUW\³HTXLWDEO\´0HGLDWRUVFDQRIWHQDYRLG irreconcilable differences over labeling, by reviewing the potential equitable division of the disputed asset assuming LW¶VPDULWDO%\GLVFXVVLQJWKHUHOHYDQWIDFWRUVILJKWVFDQEHDYRLGHGDQGUHVROXWLRQVUHDFKHG FALL 2012, VOLUME 8, ISSUE 4 PAGE 18 PRACTICE ISSUES, ETC., continued when the parties realize that the amount that would likely be distributed to the non-titled spouse is too unimportant, in all the circumstances, to worry about. Changes in Child Custody and Visitation. Kairis v Smith Kairis. ,W¶VRQHWKLQJWRWHOOFOLHQWVWKDWDVIDUDVNLGVDUHFRQFHUQHGQRPDWWHUZKDW\RXDJUHHQRZRU what a court orders now, things may change later based on the best interests of the children. However, LW¶VQRWWULYLDOWU\LQJWRH[SODLQWRFOLHQWVKRZWKHVHFKDQJHVFRPHDERXWDQGZKDWVWDQGDUGVFRXUWVXVH WRILJXUHRXWWKHFKLOGUHQ¶VEHVWLQWHUHVWV Case in point. Mom and Dad had a 2008 divorce incorporating a 2001 agreement. It provided for joint custody, primary residence with Mom and unsupervised visits with Dad. More recently, the )DPLO\&RXUWJDYH0RPVROHOHJDODQGUHVLGHQWLDOFXVWRG\ZLWK'DG¶VYLVLWVWREHVXSHUYLVHG7KHUHD son for the change was a substance abuse incident involving Dad. After putting the substance abuse EHKLQGKLP'DGEURXJKWDQ2QRQGDJD&RXQW\)DPLO\&RXUWSHWLWLRQWRFKDQJHFXVWRG\EDFNWR³- ´6RPHWKLQJPXVWKDYHJUDEEHGWKH)DPLO\&RXUWMXGJH¶VDWWHQWLRQEHFDXVHLQVWHDGRIPHUHO\ JUDQWLQJ'DG¶VSHWLWLRQWRUHWXUQWRWKHRULJLQDODUUDQJHPHQWWKHFRXUWDZDUGHGVROHOHJDODQGSK\VLFDO custody to Dad. However, on appeal in Kairis v. Smith Kairis, 98 A.D.3d 1281, http://www.nycourts.gov/courts/ ad4/clerk/decisions/2012/09-28-12/pdf/0950.pdf WK'HS¶W WKH$SSHOODWH'LYLVLRQGLVDJUHHG ZLWKWKHORZHUFRXUWDQGRYHUUXOHG+HUH¶VVRPHRIZKDWLWVDLG :HQRWHWKDWDOWKRXJKWKH>)DPLO\&@RXUWIDLOHG³WRVHWIRUWKµWKHIDFWVLWGHHPVHVVHQWLDO¶ DQGXSRQZKLFKLWVGHWHUPLQDWLRQLVEDVHG´>FDVHFLWDWLRQRPLWWHG@TXRWLQJ&3/5>E@ see generally Family Ct. Act § 165[a]), remittal of the matter [back down to Family Court] is not required inasmuch as the record is sufficient to allow for effective appellate review [citation omitted]. We agree with the mother that the court erred in awarding sole legal and primary physical FXVWRG\RIWKHSDUWLHV¶FKLOGWRWKHIDWKHU$OWKRXJKZHFRQFOXGHWKDWWKHIDWKHUPDGHDVXIIL cient evidentiary showing of a change in circumstances to warrant an inquiry into whether the existing custody arrangement should be modified [citation omitted], we nevertheless conclude that it is in the best interests of the child for the mother to retain primary physical FXVWRG\>FLWDWLRQVRPLWWHG@7KHUHFRUGHVWDEOLVKHVWKDWWKURXJKRXWWKHFKLOG¶VOLIHWKH PRWKHUKDVEHHQWKHFKLOG¶VSULPDU\FDUHJLYHU>FLWDWLRQRPLWWHG@7KHUHLVQREDVLVLQWKHUH FRUGWRVXSSRUWWKHFRQFOXVLRQWKDWWKHPRWKHUZDVXQILWRUOHVVILWWKDQWKHIDWKHUDQG³µWKH UHODWLYHILWQHVVRIWKHUHVSHFWLYHSDUHQWV¶´LVDIDFWRUWRFRQVLGHULQGHWHUPLQLQJZKHWKHUD change in physical custody is appropriate [citation omitted]. Evidence was presented that, at the time of the hearing, the mother and the child argue often and that the child desired to live with the father. However, there was evidence that the child relied on the mother when she was sick and that she did not rely on the father in the same way. Furthermore, as previously THE REPORT PAGE 19 PRACTICE ISSUES, ETC., continued noted, the father was restricted to supervised visitation resulting from substance abuse [citation omitted]. While the father submitted evidence sufficient to show that he has been sober and has sought help for his substance abuse issues, the record does not support the drastic change from supervised visitation to sole legal and primary physical custody. We conclude, however, that it is in the best interests of the child to modify the existing custody arrangement by granting joint legal custody to the parties, with unsupervised visitation with the father. We therefore modify the order accordingly, and we remit the matter to Family Court to fashion an appropriate unsupervised visitation schedule for the father. Now you know just what to tell your clients about the standards and reasons for changing cus- tody or visitation, right? Write it Right. Kang v. Kim. 6RPHWLPHVLW¶VMXVWVRHDV\WRJHWLWZURQJ (YHQIRUMXGJHVEHFDXVHWKLV1HZ The wife asserts, and the [Supreme Court Justice] agreed, that this provision of the agree- ment is unambiguous and that the buyout price is one half of the value of the apartment less the entire outstanding amount of the mortgage, whereas the husband asserts that the buyout price is half the value of the apartment less the wife's share of the mortgage, which is one- half of the outstanding amount of the mortgage. In other words, the husband asserts that the buyout price is one half of the equity in the apartment. FALL 2012, VOLUME 8, ISSUE 4 PAGE 20 PRACTICE ISSUES, ETC., continued 8SRQH[DPLQDWLRQRIWKHVHWWOHPHQWDJUHHPHQWLQLWVHQWLUHW\³DQGFRQVLGHU>LQJ@WKH UHODWLRQRIWKHSDUWLHVDQGWKHFLUFXPVWDQFHVXQGHUZKLFKLWZDVH[HFXWHG´>FLWDWLRQVRPLW WHG@WKHDJUHHPHQWLVDPELJXRXVEHFDXVHWKHSURYLVLRQLV³UHDVRQDEO\VXVFHSWLEOHRIPRUH WKDQRQHLQWHUSUHWDWLRQ´>FLWDWLRQVRPLWWHG@1RWDEO\WKHDJUHHPHQWDOVRSURYLGHVWKDWDOO marital property is to be divided 50/50 and that if the premises is sold to a third party, the ³QHWSURFHHGVRIVDOH´VKDOOEHGLYLGHGHTXDOO\,QOLJKWRIWKHDPELJXLW\WKHFRQVWUXFWLRQRI the provision is for the trier of fact [citations omitted]. What do you think happened when this agreement was drafted? The Appellate Division seems to think that the parties meant WKHSULFHWREHKDOIWKHHTXLW\EXWWKH\GLGQ¶WDFWXDOO\ZULWHWKDW6RWKH Appellate Division finds the language to be ambiguous, requiring a trial. Put yourself in the shoes of the professional negotiators and draftsmen of the agreement. Suppose the Appellate Division is right DERXWZKDWWKHSDUWLHVSUREDEO\PHDQWDVRSSRVHGWRZKDWWKH\ZURWH0D\EHWKHZLIH¶VODZ\HULQ VHUWHGRUQRWLFHGWKHGUDIWLQJDQRPDO\EXWGLGQ¶WVD\DQ\WKLQJVRWKDWZKHQWKHZLIHVRXJKWWRHQIRUFH WKHDJUHHPHQWVKHFRXOGVD\³2K\HV,NQHZ,¶GJHWWKHH[WUDEHQHILWRIVXEWUDFWLQJQRW RIWKHPRUWJDJH7KDW¶VZKDW,meant WKHDJUHHPHQWWRVD\´2UGLGHYHU\RQHNQRZWKHZLIHZDVVXS posed to pay half the equity, and they all simply misread it? How can we know? If you are a mediator drafting this agreement (or a memorandum of understanding), how easy would it be to make this draft- ing mistake? You know how hurried things can be at the drafting stage. Unless the parties have con- VXOWLQJRUUHYLHZDWWRUQH\VZKRVWXG\\RXUGUDIWYHU\FDUHIXOO\WKHUHZRQ¶WEHDQ\RWKHUSURIHVVLRQDOV involved in the drafting to help you catch the error. 7KHUHVXOWLQWKHFDVHLVWKDWWKHOLWLJDWLRQJRHVRQDQGXQOHVVWKHUH¶VDVHWWOHPHQW DQ\RQHFDUH to mediate that?), there will have to be a trial on what was meant in the written agreement. How much better to make sure the document says what the parties both meant, and means what the parties both in- tended. Note that the Appellate Division found the language to be ambiguous, and did not read it liter- ally, which it could have done. The matter was sent back for a trial, so that the trial court (or a jury) could have a hearing on what the parties meant. :KDWZRXOG\RXDVWKH³WULHURIIDFW´GHWHUPLQH"7KH lesson for drafters (mediators, lawyers, etc.) is that it is better to avoid litigation than to win it. Proofreading, a neutral eye and a careful review attorney could have avoided the problem. ² CMN Back To Contents THE REPORT PAGE 21 ASK THE ETHICIST Rachel Green, the Chair of the Joint Ethics Committee of the New York State Council on Di- vorce Mediation and the Family and Divorce Mediation Council of Greater New York, submitted a question to the Committee by email, which is reprinted below. An interesting discussion followed among some of the members, which is also reprinted below. With the permission of the Chair, we offer WKHFRQYHUVDWLRQDVWKLVLVVXH¶V³$VN7KH(WKLFLVW´FROXPQ7KHFRPPHQWVZHUHQRWHGLWHGIRUFRQWHQW but unnecessary entries and the redundant or irrelevant email clutter have been omitted. A few obvious typos and similar errors were corrected. Readers should bear in mind that this was a fast-moving, free- flowing email discussion, unfiltered and unedited. Some thoughts may be only partly formed, and members may have been testing ideas without necessarily meaning to adopt them. 5HDGHUV¶FRPPHQWVDQGUHDFWLRQVDUHLQYLWHG:HZLOOIROORZXSRQWKLVGLVFXVVLRQHVSHFLDOO\ considering the suggestion, in one of the emails, that the Board take up the subject of whether and how WRGHDOZLWKUHSRUWVRIPHGLDWRUV¶LPSURSHUFRQGXFWDQGJXLGHOLQHVIRUPHGLDWRUVWRDGGUHVVFOLHQWV¶ complaints about other mediators. ² EU $VN7KH(WKLFLVW %URWKHUV¶.HHSHUV" Whether and How Mediators Should Intervene When Someone Complains About Another Mediator Post 1. From: Rachel Green Hi all, I had a very interesting question posed to me by a member, and wanted to throw it out for e-mail discussion: ,QWKHODVWIHZZHHNV,¶YHKDGWKUHHLQVWDQFHVRIPHGLDWRUVFRPSODLQLQJWRPH Ethics Chairman Rachel Green about clients who have previously mediated with other mediators and were unhappy with the process and the outcome. I also have seen clients as a review attorney and heard some horror stories of what KDSSHQHGLQWKHPHGLDWLRQHYHQWKRXJKWKHFOLHQWVZHUHQ¶WDZDUHWKDWLWZDVEDGSUDFWLFHWKHPVHOYHV sometimes. These would not rise to the level of an ethical violation of the Model Standards, and of course, we all have disgruntled clients, but I think you know what I mean. FALL 2012, VOLUME 8, ISSUE 4 PAGE 22 ASK THE ETHICIST, continued If this happens to us, do we talk to the mediator, try to get the client to talk to the mediator PRVWVD\WKH\GRQ¶WZDQWWR RULILWLVDQHWKLFDOYLRODWLRQGRZHWDONWRWKHFOLHQWDERXWUHSRUWLQJLWWR the Council if the mediator is a member or what? Obviously, the issue is always that clients who are upset with their mediator generally are upset DERXWPHGLDWLRQDQGLW¶VEDGIRUWKHSUDFWLFHEXWZKDWGRZHGRDERXWLW",W¶VDOVRQRWIDLUIRUWKHPH diator to be judged without the opportunity to present her/his side of the story. Since one of the goals of our committee is to maintain standards and reputation of mediation ² it seems to me that this might be something worth considering. I know that if I had left a client disgruntled ² who then went to a colleague and complained to him/her about me ² I would want to know about it. I would want the opportunity to 'set the record straight' with my colleague ² or at least have a chance to tell my side ² and also to have the opportu- nity to learn, in the event that I was to some extent wrong. I had a client call me, a few weeks ago, to tell me that she had felt like I wasn't fully hearing her, and that I was biased in favor of her husband, and I truly appreciated the call, the chance to listen to her, discuss what had happened, and apologize. Because she called me, they were able to come back to mediation, and finish up. But I'm sure there are instances where clients don't pursue it ² and just go to another mediator. What are all your thoughts? Post 2. From: Elaine B. Kirsch I think that we must remember at least two things: (i) our clients are in severe distress when they meet with us, and (ii) perception is (almost) everything. The clients who perceive the mediator being "unfair" or unprofessional may be a reflection of their own emotional state/hearing what they want to hear. I am very loath to judge any of these mediators simply on the basis that the clients have complained. I would not want to be judged that way. I think we need to be very careful in addressing this type of issue. Post 3. From: Eli Uncyk I agree entirely with Elaine. It is not wise to take any action based on one version of events from a distressed participant. I would not encourage any mediator to tell a complaining client about THE REPORT PAGE 23 ASK THE ETHICIST, continued SURFHGXUHVWRILOHFRPSODLQWVRUWRVXHXQOHVV,ZHUHDVNHGVSHFLILFDOO\/DZ\HUVKDYHD³6WDWHPHQWRI &OLHQWV5LJKWV´IRUPKDQJLQJLQWKHLURIILFHV0D\EHRQHRIWKHFRXQFLOVZRXOGXQGHUWDNHWRGUDIW something similar for posting. Post 4. From: Elisa Frischling Some thoughts: Every profession has both well-trained and competent and not so competent professionals. We PD\KHDURQHVLGHDQGZLWKRXWNQRZLQJWKHRWKHUSHUVSHFWLYHQRWJHWD³WUXH´SLFWXUHMXVWDVHDFK spouse has a differing point of view... and they both may be partially correct on a particular issue..., there is often one point of view, the other point of view, or somewhere in the middle. We all have to flesh out these issues in our practice. I agree we must be careful not to make quick judgments and agree we should not respond to encourage to file a complaint based on a comment of dissatisfaction. Of course, if we are asked specifi- cally how one can file a complaint we should answer the question though. What I think is most prudent is to best understand what the client perceived not to have been satisfactory and then ensure that we find a way to resolve that issue to satisfaction. We need to take the extra time to reiterate the process of mediation, how it works and how we believe we can help that cou- ple and then try to work with them toward resolution to turn the mediation experience into a positive one for the parties. I think we also need to be aware of, and understand our own limitations when as- sessing the issue brought forward. The more we each encourage high standards of practice in the field of mediation, educate as to how the process works, and ensure that we are able to refer to other professionals when appropriate to get information that may be outside our realm, the more likely we are to increase positive points of view regarding mediation and the better equipped each of us will be in best serving our clients. Post 5. From: Sheryl-Anne Sastow Hi everyone, I agree wholeheartedly with Elisa and Elaine and add that since there are 2 sides to all situa- tions, we should no doubt, contact the mediator at issue for 2 reasons: a. To attempt to ascertain the full FALL 2012, VOLUME 8, ISSUE 4 PAGE 24 ASK THE ETHICIST, continued picture; b. To serve as a learning tool for that mediator, if in fact the mediator was at fault. And of course, if it becomes apparent that it was indeed the client's perception ² or misperception, then we should en- deavor to explain the process of mediation to him/her in an attempt to resolve the issue. Post 6. Kate Bar-Tur wrote: Having read the astute comments in this email trail, I just want to express my agreement with all that has been said. The mediator should be told and have her/his say. I would like to know personally. However, what do we do if it results in a discovery of "bad judgment or practice" but not within the venue of the ethics committee because there is no formal complaint? Or the situation is one of he said, she said. Post 7. From: Susan Brown I too agree with what has been said on this topic, but will add my 2 cents. How often does it hap- pen that in our mediation room there are two truths being presented, each by a client who has viewed their situation through their own lenses. And in this case there might be three truths. If that is the case, I might conclude that the chemistry between these clients and their mediator was just not good ² no wrong- doing. But, as their mediator, I would certainly want to know if my clients were unhappy. I wouldn't find it easy to call another mediator and tell them that I am meeting with their former clients who were un- happy, but I think it is the right thing to do. It is our job to question ourselves all the time in order to re- main good mediators and this is a constructive way to get that feedback. I also think that it would be good to put this conversation into a newsletter as a reminder to every mediator that questions arise for all of us when there are difficult situations that come up in a mediation. One of the huge values of belonging to an organization is that there is always a group available to get advice from ² either an ethics commit- tee, or another committee, or a local small mediators group or just a colleague met at a conference with whom you could go over a case and hear another point of view. We should be encouraging this in every way possible. THE REPORT PAGE 25 ASK THE ETHICIST, continued Post 8. From: Monica L. Kaiser Hello: I fully agree with everything that has been said but have some concerns about confidentiality. The clients who told their mediator or review attorney about their mediation experience may have had an expec- tation of privacy. These clients may not have anticipated that their new mediator or review attorney might share the situation with the Ethics Committee and that the Committee might contact the mediator to get his or her side of the story. Having said that, if I were the mediator, I would definitely want the feedback so that even if what transpired did not rise to the level of a violation of ethics protocols, I could understand the source of the dissatisfaction and avoid making the same error in the future. In my view, the consent of the clients is required before the new mediator can share the story with the Ethics Committee. Further, when the mediator is contacted by the Ethics Committee he or she should not tell his or her side of the story with- out the clients waiving confidentially. In my view, what happened in the mediation is confidential, absent a formal grievance, unless waived by the clients. That's my two cents. Post 9. From: Sheryl-Anne Sastow Hi again, As this last issue, I respectfully disagree. I do not think that the mediator, or the couple, for that matter, needs to jump into a formal drawn out and unpleasant grievance process without some investigation. This can't be a pleasant thing to go through for the mediator ² who may be totally innocent. I believe we can uphold the client's expectation of confidentiality as to the facts of their mediation in so performing this preliminary investigation. Post 10. From: Rachel Green Hi all ² Great discussion.... Just to clarify ² what I had been thinking, in response to this question, was not anything nearing any kind of "formal investigation," and absolutely would not involve any "conclusions" as to fault, lack-of- FALL 2012, VOLUME 8, ISSUE 4 PAGE 26 ASK THE ETHICIST, continued fault, nor even a conclusive analysis regarding what took place. I was thinking about this in light of wanting us all to have a community of reflective mediators, who are all working to improve ourselves, and to have greater consciousness and understanding about our work as mediators, and our communications with cli- ents. As I wrote in my first e-mail ² I was very surprised when my client called and told me she felt that I had been biased against her. I did not perceive that at all. Certainly ² I was not biased against her in my mind. But I was grateful to her. I agree 100% that we must have awareness of confidentiality; so to my mind and trying to summa- rize some of the ideas of our group ² I'd say that maybe the process, when learning of a complaint about a mediator which might have been the result of some kind of shoddy practice technique: 1 ² ask the client whether you have permission to approach the mediator ² solely for the purpose of help- ing that mediator to understand and improve. 1a ² if they don't give you permission, then it's dropped 2 ² if they give you permission ² then would they refer to the Ethics Committee? To reach out to the me- diator in a less formal way ² and ask the mediator whether he/she would be interested in hearing some feedback from a former client. That might make sense, rather than having random members attacking each other. :-) 3 ² If the mediator says yes ² then ² maybe 2 members of the ethics committee discuss the report, ana- lyze it in light of the Model Standards ² and have a 3-way phone call with the mediator. Two members ² so that there's some measure of professionalism and neutrality ² and it doesn't feel like a personal attack on the mediator. 2a ² 7KHPHGLDWRUPLJKWVD\µQR,GRQ WFDUHWRGLVFXVVP\SUDFWLFHZLWK\RX¶7KHQLW VGURSSHG Another service offered to members of the Councils from their Ethics Committee. Post 11. From: Carolyn M. Laredo Dear All: Apologies for the late contribution. Respectfully, I think that this topic should be discussed further in our next meeting as this issue is an important one not only for us all as a profession but as practitioners. THE REPORT PAGE 27 ASK THE ETHICIST, continued ,DJUHHWKDWZHVKRXOGQ¶WEHTXLFNWRMXPSWRFRQFOXVLRQVDQGVKRXOGZHLJKDOOSHUFHSWLRQV$VPH diators we are trained to keep an open mind and help individuals (which could include our own colleagues and their clients) work through their experience together in a balanced manner weighing all factors in- volved. The issues at hand are how to collect this feedback from clients, how to communicate this feedback to the mediator and I believe for us determine the ultimate goal for reporting this feedback. Are we report- ing back to the client? Is this just for feedback or is it an exchange? What is the client seeking when he/she shares this information? 7KHRWKHUWKRXJKW,KDGLVKRZLWPD\DSSHDUWRWKHFOLHQWEHLQJ³UHIHUUHGWR´DQGWKHPHGLDWRUEH LQJ³FRQWDFWHGE\´VRPHRQHIURPWKH³(WKLFV´FRPPLWWHH7KHZRUGLWVHOILPSOLHVDZURQJGRLQJ0D\EH we should consider having a subcommittee within the Ethics committee that is called something similar to ³SURIHVVLRQDOIHHGEDFN´RU³SURIHVVLRQDOGHYHORSPHQW´« Some more food for thought! Back To Contents FALL 2012, VOLUME 8, ISSUE 4 PAGE 28 INSIDE SCOOP/AROUND THE COUNCIL Board Highlights The Board of Directors of the New York State Council on Divorce Mediation meets four times per year. In order to keep the membership informed of Board activities, we present you with some of the highlights of the November 2012 meeting. %RDUGPHHWLQJPLQXWHVRQFHDSSURYHGDUHSRVWHGLQWKH0HPEHUV¶$UHDRI the website for any member who is interested in more detail (www.nyscdm.org). The Board voted and approved the 2013 budget which includes two key components: continued funding for Public Awareness and Education efforts; and funds to create an interactive database on our website which will allow members to update their own information and include photos. As part of the 2010-6WUDWHJLF3ODQWKHRUJDQL]DWLRQ¶VE\ODZVDUHUHYLHZHGDQGHGLWHGDVPD\ be necessary every two years. The Board approved updated bylaws which include a process to formally ask members to suggest nominees for directorships. The Board approved a survey to be sent to gather member input for use in the 2013-2015 Strategic Planning process. The Board voted to hold the 2014 Annual Conference at the Gideon Putnam in Saratoga after con- sidering membership input and the costs involved. Two requests were sent to the membership for input and the overwhelming majority of respondents preferred to remain at the Gideon. The Annual Conference Committee reported that thanks to a generous donation from mediators in :HVWHUQ1HZ Back To Contents THE REPORT PAGE 29 INSIDE SCOOP/AROUND THE COUNCIL, continued Peer Groups By Charles M. Newman Members of the New York State Council on Divorce Mediation around the State have created their RZQLQIRUPDOSHHUJURXSVIRUPXWXDOVXSSRUWQHWZRUNLQJDQGLIZHGRLWULJKWVRFLDOL]LQJ7KH\¶UHDOOD little different. Some are quite venerable and they all offer real professional development and other benefits for attendees. Many have dependable meeting dates and places. THE REPORT would love to hear from con- veners or other peer group participants from all around New York so that we can publicize when they meet DQGZKRPWRFRQWDFW:H¶UHDOVRGHOLJKWHGWRUXQDUWLFOHVDERXWHGXFDWLRQDOLQWHUHVWLQJRUMXVWSODLQIXQ things that happen at peer group meetings. Please contact the editors at [email protected]. In this issue, we peer into the Manhattan Peer Group. Fall Activities of the NYSCDM Manhattan Peer Group. Michael P. Stokamer, a NYSCDM Accredited Divorce Mediator, mediates and practices Collaborative Law in Manhattan and Hackensack, NJ. Mike started the Man- hattan Peer Group about eight years ago. He was new to mediation and was looking for KHOSE\PHHWLQJZLWKRWKHUPHGLDWRUV,W¶VEHHQJRLQJVWURQJHYHUVLQFHWKDQNVPRVWO\WR 0LNH¶VHIIRUWV+LVWRULFDOO\WKHPHHWLQJVKDYHEHHQVLPSOHFRIIHHNODWFKHVDWZKLFK members ² a fluid and unofficial group ² talk about challenging cases or issues. Sometimes a member would agree to prepare a presentation on a specific topic. Mike Stokamer The Manhattan group still has those free-flowing conversations and member presentations, but some of the meetings have also become more structured, with presentations, often with handouts, by members and others, about a variety of issues important to family and divorce mediators. The Manhattan Peer Group normally meets on the second Monday of the month from 8:25 to 10:15 AM. They are open to any interested person, not just NYSCDM members and not just Manhattanites. The normal meeting place is either at John Jay College at 59th Street and 10th Avenue (in which event, John -D\¶V'LVSXWH5HVROXWLRQ3URJUDPLVDFR-sponsor), or the offices of mediators Elaine Nissen and Chuck Newman, 500 Fifth Avenue, at 42nd Street. Always check in advance, though, because some dates may change and there are other meeting locations depending on the expected number of attendees or for other reasons. To keep posted about upcoming meetings, please ask Mike Stokamer, emes52@aol.com, to add \RXWRKLVHEODVWOLVW0LNHDOVRVHQGVWKHQRWLFHVWR3URI0DULD9ROSH¶VOLVWVHUYDWWKH-RKQ-D\&ROOHJH Dispute Resolution Program, http://listserver.jjay.cuny.edu/cgi-bin/wa.exe?SUBED1=NYC-DR&A=1. FALL 2012, VOLUME 8, ISSUE 4 PAGE 30 INSIDE SCOOP/AROUND THE COUNCIL, continued ,I\RX¶UHRQWKDWOLVW DQG\RXVKRXOGEH NHHSDQH\HRXWIRU0LNH¶VQRWLFHV The Manhattan Peer Group has been active this fall. On September 10th, regular attendees Elaine 1LVVHQDQG&KXFN1HZPDQPDGHDSUHVHQWDWLRQFDOOHG³$)XQQ\7KLQJ+DSSHQHGRQWKH:D\WRWKH 5HVROXWLRQ $FFHVVLQJWKH3RZHURI+XPRULQ0HGLDWLRQ´$WWHQGHHVWRRNWKH³KXPRU´SDUWVHULRXVO\DQG it was a lively, funny, conversation. On October 15th, F. Peter Phillips gave a fascinating presentation on international cultural differ- ences in dispute resolution, telling about his observations in Hawaii, China and the Middle East. A presentation had been planned for the November 12th meeting about step- and blended-families, EXWWKHLQYLWHGVSHDNHUFRXOGQ¶WPDNHLWEHFDXVHRI+XUULFDQH6DQG\,QVWHDGWKHJURXSZHQWEDFNWRLWV roots for a free-flowing conversation. They discussed preferences for future meetings and mediator Eileen M. Crowley, of Rhinebeck and Brooklyn, spoke about some particularly knotty issues she had in a recent divorce mediation. She appreciated the feedback as much as the other participants appreciated her offering interesting things to consider. On December 10th, people heard Lesley Friedland, James Grimaldi and Kate Bar-Tur, of FamilyKind, on the importance of parent education in the divorce process. As of press time, Dan Berstein is expected to present on mental health issues in mediation at the January 14th meeting, to be held at John Jay. 6WDWH&RXQFLOPHPEHUVVKRXOGVHHNRXWSHHUJURXSVORFDOWRWKHP,IWKHUHLVQ¶WRQHFRQVLGHUVWDUW LQJRQH7KH\¶UHLQIRUPDWLYHDQGIXQ Chuck Newman is a divorce and commercial mediator and litigator in Manhattan. He is a member of the Board of ACR-GNY; a member of NYSCDM and a co- editor of THE REPORT; and a member of several other ADR and bar organiza- tions. He can be reached at [email protected], www.newmanlawmediation.com. Back To Contents THE REPORT PAGE 31 INSIDE SCOOP/AROUND THE COUNCIL, continued Board Nominations Sought The New York State Council on Divorce Mediation is seeking qualified members to join the Board of Directors. If you or anyone you know is interested in being considered, please contact me on or before March 1, 2013 via email at: [email protected] Daniel R. Burns Nominating Committee Chair Public Awareness and Education Committee By Helene Bernstein Susan Ingram, a NYSCDM board member, and Helene Bernstein are co-chairs of the Public Aware- ness & Education Committee. They have been working closely together for the past year with the goal of spreading the word about the virtues of divorce mediation to the public and the professional community. 6RPHRIWKH&RPPLWWHH¶VDFFRPSOLVKPHQWVLQFOXGHSDUWLFLSDWLRQDWWKHLQGHSHQGHQW6WDUW2YHU 6PDUW'LYRUFH([SRDQGDWWKH2IILFHRI&RXUW$GPLQLVWUDWLRQ¶V0HGLDWLRQ6HWWOHPHQW'D\.LFNRIIHYHQW at the New York City Bar Association. Patricia Murray was hired recently as our public relations guru. She has been advising the Committee on how best to promote ourselves to the public, the media, and on social media platforms. Her assistance has provided the Committee with valuable input toward improving our website and visibility on the web. Allison Gilbert, a Brooklyn Law School student, has also volunteered KHUWLPHWKLV\HDUDVWKH&RPPLWWHH¶VLQWHUQDQGKDVEHHQFUHDWLQJDQXSGDWHGUHIHUHQFHOLVWIRUWKHZHEVLWH If you know of websites useful for mediators, please send them to Helene at [email protected]. On January 14, 2013, the Council and FamilyKind Ltd. ² a non-profit organization that assists families experiencing separation and divorce ² will be co-sponsoring a Divorce Mediation Workshop JHDUHGWRZDUGWKHSXEOLF7KH:RUNVKRSZLOOEHKHOGDWWKH:LOOLDP2¶6KHD&RPSOH[:HVWWK Street, New York, New York, at 6:30 P.M. The Committee invites Council members to join this important Committee. We are seeking mem- bers who would like to contribute blog posts and write press releases and who are seeking a rewarding ex- perience. We would like to thank the Board for all the support during the past year, and encourage all mem- bers to donate money to our Committee and renewing your membership to the NYSCDM. Back To Contents FALL 2012, VOLUME 8, ISSUE 4 PAGE 32 INSIDE SCOOP/AROUND THE COUNCIL, continued Downstate Mini-´&RQWHVWµ The Downstate Mini-Conference Picture 1 was held jointly by the New York State Council on Divorce Mediation and the Family and Divorce Mediation Council of Greater New York on December 1, 2012 at John Jay College in Manhattan. It was im- mensely interesting and informative. A full article will appear in the next edition of THE REPORT. However, it would be unfor- Picture 2 tunate if we did not make any mention of it in this edition, and include a few photos. Notice there are no captions. We invite readers to send in their own identifi- cations of as many of these attentive par- ticipants as they can, including the few with their hands over their faces. We will impose a deadline of February 15, 2013, so Picture 3 that we can sort through and see who has the most accurate responses. Please submit your answers to [email protected]. A prize will be announced in the next edition, and we hope it will be worth your effort. Re- sults will not be audited by any firm affili- ated with the New York State Lottery. Back To Contents THE REPORT PAGE 33 WEBSITE AND LISTSERV The NYSCDM website and listserv are wonderful tools to stay connected to the Council and every- one is encouraged to take advantage of the benefits. From the homepage of our website (www.nyscdm.org), you can read the NYSCDM Blog, and find OLQNVWRRXU)DFHERRNDQG/LQNHG,QSDJHV7KH³0HPEHUV2QO\´DUHDSURYLGHVPHPEHUVZLWKDFFHVVWRLP portant resources such as our Bylaws, Ethics Protocol, Strategic Plan, Board Meeting minutes, past issues of THE REPORT, and many other helpful links. Our committee descriptions are listed there and we encour- age all of our members to get involved by joining one of our committees. The Yahoo! Groups listserv is a forum for our members to communicate with colleagues, solicit advice, post articles of interest and send notifications of upcoming events in the field of mediation. To join the Yahoo! Group, please email Melissa Burns below and an invitation as well as instructions will be sent to the email address you provide. If you would like to be included in either of these, please send an email to Melissa Burns at [email protected]. Feel Free to Share! THE REPORT is created for the benefit of NYSCDM members and selected other interested readers. Members are welcomed to send copies of THE REPORT, or integrally complete sections of it, to clients, professionals, other people interested in alternative dispute resolution and researchers, as long as the NYSCDM is fully credited, copyright is noted, and information about contacting the NYSCDM is provided to the recipient. www.NYSCDM.org Back To Contents