The Matrimonial
Strategist
®
Volume 31, Number 7 • July 2013
Point: Children Should Be Seen and Heard Less Often By Lee Rosenberg Despite amendments to statute and court rule, it unfortunately remains all too common for the court still improperly to see the renamed “Attorney for the Child” if not as an aid to the court, as a purported “impartial” and “independent” sounding board whom the court will hear first at any conference. (The title “Attorney for the Child” was officially changed from the term “Law Guardian” in accordance with the Laws of New York, 2010, Chapter 41 amending the Domestic Relations Law, Civil Practice Laws and Rules, Family Court Act, Public Health Law, and Social Services Law, as well as the Rules of the Chief Judge at 22 NYCRR § 7.2.) In this regard, the child’s attorney often gives the court his view of the case, at least as it relates to his client, and sometimes includes his “opinion” on the parents, the parents’ interactions, and their purported parenting skills. It then becomes a defensive battle for the parent’s attorney to start trying to refute an opinion (sometimes skewed) that may very well be taken, if not as gospel, at least as a reliable starting point for discussion. continued on page 3
Eight Tips for a Successful Mediation in a Family Law Matter By Rebecca L. Palmer and Crystal E. Buit
M
ediation has become an important component in family law proceedings. Going to trial — once you finally get there after waiting months, sometimes years, due to busy court dockets and unnecessarily prolonged litigation — is expensive, takes quite an emotional toll on the parties and, at the end of the day, requires waiting for an uncertain result because no one can truly predict how the judge is going to rule. Accordingly, while court intervention in family law matters is sometimes inevitable, in the vast majority of cases it is in both parties’ interests to resolve their divorce, post-dissolution issues, paternity action, or other family law matter in mediation. This article offers eight tips for making the most of mediation in a family law matter.
1. Scheduling
the
Mediation
The first step to ensuring a successful mediation begins before the mediation is even scheduled; it is important to consider factors that will help set the stage for a productive mediation. For instance, parties often have the choice to attend either: 1) a private mediation, in which they select and pay for a mediator, who is often a seasoned family law attorney, and will have the mediation at a time and place convenient for the parties; or 2) a courthouse mediation, which frequently also has a seasoned practitioner serving as mediator, such as a retired family law judge, and is held at the courthouse where the case is pending. The primary difference between a private and courthouse mediation are the costs — a courthouse mediation is more often than not conducted at a significantly reduced cost (as compared with paying another family law attorney an hourly rate to serve as mediator); however, the tradeoff is time. In a private mediation, the parties can agree to start a mediation at 9 a.m. and go well into the night or continue the following morning, if necessary, to reach an agreement, as opposed to a courthouse mediation, which is often limited to only a few hours and has to be pre-scheduled with the court. continued on page 2
In This Issue Eight Tips for a Successful Mediation............... 1 Point: The ChildCentricity of Our Matrimonial Courts.... 1 Counterpoint: The Value Of Child-Centered Litigation................ 5
PERIODICALS
The ChildCentricity of Our Matrimonial Courts
Mediation continued from page 1 If the parties are able to afford private mediation and have significant issues, the next consideration concerns selecting the right mediator for a particular case. For instance, does the case at issue have difficult children’s issues? Complex financial issues? Experience with various family law mediators will assist in selecting a mediator who is best suited to addressing the issues in your case. Regardless of the type of case, in all matters, it is crucial to have an experienced mediator, who understands the importance of being honest — sometimes brutally so — with both sides and who is willing to motivate or “push” the parties toward settlement. Because the mediator is frequently relied upon to express each party’s position to the other side, such conduct by the mediator is central to having each party recognize the weaknesses in its own case and, therefore, the benefits of compromise. Finally, once the mediator has been selected, make sure to schedule the mediation somewhere comfortable and suitable for the purpose. For instance, be cognizant of where the mediation is being scheduled — i.e., select an office that has at least two conference rooms where each party will be able to spread out adequately and work. Often overlooked, “creature comforts,” such as access to food, drinks, and the Internet, can be the difference between parties buckling down to push through an all-day mediation or ending early.
2. Ensuring You Are Ready For Mediation In scheduling the mediation, strategically select a date that enables you to become adequately prepared. Rebecca Palmer, a member of this newsletter’s Board of Editors, leads the Family & Marital Law practice at Orlando, FL’s, Lowndes, Drosdick, Doster, Kantor & Reed, P.A. Crystal E. Buit is an associate in the Family and Marital Law practice. 2
In many jurisdictions, attendance at mediation is a requirement before the parties can attend a final hearing or even a hearing on temporary relief issues. As a result, mediation can sometimes be seen as simply a task that needs to be “checked off” the list. Do not let even a mandatory mediation be a waste. Mediation is a great time to discover the strengths and weaknesses in your case, as well as in your opponent’s case. It is also often the first time you learn each party’s position and arguments, which will likely be the themes carried throughout the duration of the case. Accordingly, in order to make the most of a mediation, before it is scheduled, review the file to determine whether you have all necessary discovery. For instance, have you received the other party’s required financial disclosures, such as a family law financial affidavit and mandatory financial documents? Beyond these, do you need additional discovery? If so, make sure to set mediation for a date that gives you sufficient time to send and receive a request for production, interrogatories, and the like. Walking into a mediation informed is a powerful tool and equips you with the ability to settle a case, i.e., it is not taking a party’s word as to income, but instead having the actual pay stub to prove it. In addition to ensuring that you have all the discovery needed from the other party, make sure that your client’s discovery is in order. For instance, there may be necessary changes that need to be reflected in your client’s financial affidavit, such as a decrease in income or increased expenses. Make these changes in advance of the mediation so no one is working from old information. Further, make sure there is no outstanding discovery, such as documents requested that have not been produced (unless objected to). It would be unfortunate for a mediation to stall because the other party does not have the information they feel is necessary to make an informed decision. continued on page 6
The Matrimonial Strategist
®
CHAIRMAN . . . . . . . . . . . . . . . . Willard H. DaSilva DaSilva Hilowitz & McEvily LLP Garden City, NY EDITOR-IN-CHIEF . . . . . . . . . . . Stephanie McEvily EDITORIAL DIRECTOR . . . . . . . Wendy Kaplan Stavinoha MARKETING DIRECTOR . . . . . . Jeannine Kennedy GRAPHIC DESIGNER . . . . . . . . Amy Martin BOARD OF EDITORS LAURENCE J. CUTLER . . . . . Fox Rothschild LLP Roseland, NJ MARY CUSHING DOHERTY . . . . . . . . . . . . . . . High Swartz LLP Norristown, PA PAUL L. FEINSTEIN . . . . . . . . Paul L. Feinstein Ltd. Chicago LYNNE GOLD-BIKIN . . . . . . Weber Gallagher Simpson Stapleton Fires & Newby LLP Norristown, PA JONATHAN W. GOULD, PH.D. . . . . . . . . . . Psychologist Charlotte, NC Frank Gulino . . . . . . . . . . Hofstra University Hempstead, NY DAVID A. MARTINDALE Ph.D. . . . . . . . Forensic Psychological Consulting St. Petersburg, FL CHARLES J. McEVILY . . . . . . DaSilva Hilowitz & McEvily LLP Garden City, NY MARK MOMJIAN . . . . . . . . . Momjian Anderer, LLC Philadelphia JEREMY D. MORLEY . . . . . . . (Private Practice) New York REBECCA PALMER . . . . . . . . Lowndes, Drosdick, Doster, Kantor & Reed, P.A. Orlando, FL JUDITH L. POLLER . . . . . . . . Pryor Cashman LLP New York LLEWELYN G. PRITCHARD . . . . . . . . . . . . . Helsell Fetterman LLP Seattle, WA CURTIS J. ROMANOWSKI . . (Private Practice) Metuchen, NJ ROBERT E. SCHLEGEL . . . . . Houlihan Valuation Advisors Indianapolis, IN ERIC L. SCHULMAN . . . . . . . Schiller DuCanto and Fleck LLP Lake Forest, IL MARTIN M. SHENKMAN . . . (Private Practice) Paramus, NJ LYNNE STROBER . . . . . . . . . Mandelbaum, Salsburg, P.C. West Orange, NJ TIMOTHY M. TIPPINS . . . . . (Private Practice) Latham, NY THOMAS R. WHITE 3rd . . . . University of Virginia School of Law Charlottesville, VA WILLIAM R. WRIGHT . . . . . . Wright Law Firm, P.A. Jackson, MS The Matrimonial Strategist® (ISSN 0736-4881) is published by Law Journal Newsletters, a division of ALM. © 2013 ALM Media, LLC. All rights reserved. No reproduction of any portion of this issue is allowed without written permission from the publisher. Telephone: (877) 256-2472 Editorial e-mail:
[email protected] Circulation e-mail:
[email protected] Reprints: www.almreprints.com The Matrimonial Strategist 023146 Periodicals Postage Paid at Philadelphia, PA POSTMASTER: Send address changes to: ALM 120 Broadway, New York, NY 10271 Published Monthly by: Law Journal Newsletters 1617 JFK Boulevard, Suite 1750, Philadelphia, PA 19103 www.ljnonline.com
The Matrimonial Strategist ❖ www.ljnonline.com/ljn_ matrimonial
July 2013
Child-Centricity continued from page 1 I suggest that this ongoing disparate treatment, though perhaps well-intentioned, violates the parents’ right of due process and too often improvidently empowers children in their familial relationships as their influence becomes litigation leverage. This is not to say that there is no time or place for a child’s influence to be paramount, but our matrimonial courtrooms have lately become far too child-centric.
The Extent Knowledge
of
Children’s
It has become traditional for many judges to address the parties in open court. Court rule now exists requiring the court to personally address the parties at the preliminary conference. 22 NYCRR § 202.16(f) (1). More often than not, the court will at some point tell the litigants and/or counsel, in no uncertain terms, that the parties should insulate and isolate the children from their case and the issues between the two of them; that the children should not know what is discussed in court or what transpired in court; that the children should not know about court dates or what the judge has said or ruled; and that they should know only that both parents love them — or words to that effect. Then, in the next breath, the court most often tells everyone that he or she is appointing an attorney for the children whose official stated role — by Rule of the Chief Judge — is to advocate the children’s position on their behalf. 22 NYCRR §7.2(a). While many judges understand that this knee-jerk reaction to a nonsettled custody matter is not necessarily the best thing for the case, the parties or the children, many others Lee Rosenberg is a Fellow of the American Academy of Matrimonial Lawyers, Chair of the Nassau County (New York) Bar Association Matrimonial Law Committee, and a partner at Saltzman Chetkof & Rosenberg LLP, in Garden City, NY. E-mail:
[email protected]. July 2013
do not understand that a contested custody case should not automatically engender the appointment of a legal representative for the children (or a parenting coordinator, forensic evaluation, etc.). The court’s decision to refrain from appointing an attorney for the child is not per se erroneous, as the appointment remains within the court’s discretion. A.C. v D.R., 36 AD3d 465 (1st Dept 2007). Certainly, many parents, intentionally or unintentionally, try to influence the children. The controlling mother, the newly enlightened “Mr. Mom,” and the giver of the heretofore forbidden puppy are some stereotypical examples of the intentional persuader. Others influence unintentionally, out of confusion, naïveté, or fear of the other parent’s motivations/intentions and of the unknown future. Also into the mix may be added the child’s purposeful as well as innocent manipulations, which can become highly exacerbated by some children’s attorneys, who overstep and continue to wrongfully believe that they are in fact an arm of the court or surrogate judge. We see this all too often, and many courts permit it. The point here is not a blanket indictment of children’s attorneys; it is an assertion that further empowering children in the midst of the parents’ litigation is very often counterproductive, violative of due process and against the children’s best interests. This situation engenders broad manipulation, which impinges upon the parents’ right to fairly present their cases or to self-determine the outcome.
Official Change in the Role Of the Children’s Attorney Historically, an attorney appointed to represent a child was referred to as the “Law Guardian.” Family Court Act, Article 2. That attorney’s role was often seen as an extension of the court, despite the lack of authority for such a position. Criticism began increasing in some appellate decisions. See, e.g., Rueckert v. Reilly, 282 AD2d 608 (2nd Dept. 2001); Graham v. Graham, 24 AD3d 1051 (3rd Dept. 2005); Cobb v. Cobb, 4
AD3d 747 (4th Dept 2004). This criticism was encapsulated in the 2006 Report of the Matrimonial Commission, which posited that the name “Law Guardian” should be changed to “Attorney for the Child,” and that such an attorney was not to be considered a fiduciary or arm of the court. Matrimonial Commission Report to the Chief Judge of the State of New York, February 2006 at 3944. Thereafter, the Rules of the Chief Judge were amended in 2007 to define this attorney’s role and ensure that he or she did not have greater access to the court than any other attorney in the proceeding. The amendment indicates that the “attorney for the child is subject to the ethical requirements applicable to all lawyers, including but not limited to constraints on: ex parte communication; disclosure of client confidences and attorney work product; conflicts of interest; and becoming a witness in the litigation.” 22 NYCRR §7.2(b). According to 22 NYCRR §7.2(b), in non-juvenile delinquency proceedings, the attorney for the child must zealously advocate that child’s position. In ascertaining the child’s position, the attorney for the child must consult with and advise the child to the extent of and in a manner consistent with the child’s capacities, and have a thorough knowledge of the child’s circumstances. If the child is capable of knowing, voluntary and considered judgment, the attorney for the child should be directed by the wishes of that child, even if the attorney for the child believes that what the child wants is not in his or her best interests. The attorney should explain fully the options available to the child, and may recommend to the child a course of action that, in the attorney’s view, would best promote the child’s interests. When the attorney for the child is convinced either that the child lacks the capacity for knowing, voluntary and considered judgment, or that following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child, continued on page 4
The Matrimonial Strategist ❖ www.ljnonline.com/ljn_ matrimonial
3
Child-Centricity continued from page 3 he or she would be justified in advocating a position that is contrary to the child’s wishes. In these circumstances, the attorney for the child must inform the court of the child’s articulated wishes if the child wants the attorney to do so, notwithstanding the attorney’s position. It remains improper for the child’s attorney to render a report to the court. Weiglhofer v. Weiglhofer, 1 AD3d 786 (3rd Dept. 2003); Graham v. Graham, 24 AD3d 1051 (3rd Dept. 2005); Rheingold v. Rheingold, 4 AD3d 406 (2nd Dept. 2004); Usack v. Usack, 17 AD3d 736 (3rd Dept. 2005). The child’s attorney should not provide an opinion as to what is in the child’s best interests. In Re Derrick Shea D., 22 AD3d 753 (2nd Dept. 2005). It has been held that it is error for the court to rely even on oral reporting from the child’s attorney. (Cervera v. Bressler, 50 AD3d 837, 841 [2008], quoting Weiglhofer v. Weiglhofer, 1 AD3d 786, 789 n (2003) (to the extent Family Court relied on detailed accounts provided by the attorney for the child concerning her conversations with the child, it was inappropriate for an attorney for the child to present “‘reports containing facts which are not part of the record’”; see also 22 NYCRR 7.2 (b); Matter of New v. Sharma, 91 AD3d 652 (2nd Dept. 2012).) While attorneys for the children, as advocates, may make their positions known to the court orally or in writing, presenting reports containing facts which are not part of the record, or making ex parte submissions to the court, are inappropriate practices. Matter of Swinson v. Brewington, 84 AD3d 1251 (2nd Dept. 2011). And although attorneys for the children may make their positions known to the court orally or in writing (by way of, among other methods, briefs or summations), courts should not ask law guardians for their “recommendations,” as they are advocates, not advisers to the court. Matter of Devon XX, 20 AD3d 639 (3rd Dept. 2005). 4
Furthermore, no basis exists to disqualify a child’s attorney who, having determined that the child is unimpaired in accordance with local standards, has throughout properly acted as the child’s advocate rather than as an aide to the court in determining the child’s best interests. Rogovin v. Rogovin, 27 AD3d 233, (1st Dept. 2006).
The Reality Unfortunately, it remains all too common for the court to see the newly renamed “Attorney for the Child” if not as an aid to the court, then as a purported “impartial” and “independent” sounding board from whom the court will hear first at any conference. In addition, and notwithstanding the purported equalization of the playing field and elimination of ex parte communications, attorneys for the parties continue to be excluded from the court’s in camera “Lincoln” hearings with children and their attorneys. The other attorneys then remain completely in the dark as to what transpired, with the record of the in camera hearing sealed even at the appellate level unless otherwise directed. CPLR § 4019(b); Matter of Ladd v. Bellavia, 151 AD2d 1015 (4th Dept. 1989). Accordingly, the litigants and their counsel are at a procedural and substantive disadvantage, with the children’s attorney again assuming a more intimate and, in effect, secretive role with the court. Thus, there is an argument to be made for the parents’ attorneys’ participation in the in camera process beyond simply having the possible opportunity to submit questions to the court. Matter of Sellen v. Wright, 229 AD2d 680 (3rd Dept. 1996); Verry v. Verry, 63 AD3d 1228 (3rd Dept. 2009); Matter of Sandra S. v. Abdul S., 30 Misc.3d 797 (Sup Ct., Kings Cty. 2010). What then of the rights of due process, which are supposed to vest in the parents? After all, they are the only actual parties to the proceeding; they are the recipients of the relief awarded by the court, and it is they who have the contractual right as the named parties to enter into agreements and stipulations settling the matter.
The Balancing Act The ongoing disparate treatment of attorneys for the children versus those of the parents, though perhaps well-intentioned, violates the parents’ right of due process and too often over-empowers children. This is not to say that there is no time or place for a child’s influence to be paramount. Appreciation for the court’s position in protecting the child, particularly where parental abuse and intimidation of the child exists, goes almost without saying. And there is sometimes a need to permit the child, in a proper circumstance, to voice his or her opinion and to be able to do so with the benefit of counsel and without fear of reprisal. However, while it might seem a controversial suggestion, it is time that a better balance is struck, through judicial placement of greater limitations on the children’s (and their attorneys’) influence. The child’s position in a custody matter is just one factor for the court to consider in making its determination of best interests; most often, it is a non-controlling factor. Dintruff v. McGreery, 34 NY2d 887 (1974); Lyons v. Lyons, 112 AD2d 232 (2nd Dept. 1985); Walden v. Walden, 112 AD2d 1035 (2nd Dept. 1985). Where the case is such that there is no pressing need to actually involve the children in the litigation process, they should remain uninvolved, without advocation and without opinion. When it is time for resolution, let it be known that the child does not get the right to sign off, approve, or reject the terms of settlement arrived at by parents with the imprimatur of the court. It is an unfortunate circumstance that in 2013, and for many years previous, many children are all too sophisticated, too pampered and too powerful. The opinion of the 8- and 12-year-old in this context should, by and large, be irrelevant. Even in contested custody cases, maybe we can let (or if need be, force) the adults to be the adults and let the children be children more often than we do. The words “because I said so” might make a beneficial comeback. That would be in the child’s best interest.
The Matrimonial Strategist ❖ www.ljnonline.com/ljn_ matrimonial
—❖— July 2013
The Value of ChildCentered Litigation In Our Matrimonial And Family Courts Counterpoint: Justice Demands That Children Be Seen and Heard By Glenn Metsch-Ampel and Karen J. Freedman A small but vocal faction of the matrimonial bar is sounding a call to arms against the progress that has been made in the past 15 years to ensure that children have a voice in the custody and visitation disputes that profoundly impact their lives. This is an issue of great concern at Lawyers For Children (LFC), where we see every day the constructive impact that the child’s perspective has in these proceedings, and the extent to which experienced, welltrained attorneys for children can achieve better outcomes for children and their families in contested custody proceedings. LFC’s attorneys represent approximately 3,000 children in over 6,000 proceedings each year. Hundreds of those proceedings involve complex, high-conflict custody and visitation disputes. Over nearly 30 years, we have gained a clear understanding of the critical role the attorney for the child can play in presenting the child’s position without the filter of the parent’s needs or wishes.
Evolution
of the
Role
As far back as 1998, the Statewide Law Guardian Advisory Committee acknowledged the need to ensure that the child’s position was represented in custody and visitation proceedings. The Committee stated unequivocally that it is the “responsibility” of the attorney for the child in matrimonial proceedings to “diliGlenn Metsch-Ampel is Deputy Executive Director and Karen J. Freedman is Executive Director of Lawyers For Children. July 2013
gently advocate the child’s position in litigation” unless the attorney is “convinced either that the child lacks the capacity for knowing, voluntary and considered judgment or that following the child’s wishes is likely to result in a risk of physical or emotional harm to the child.” Statewide Law Guardian Advisory Committee, 4/16/98. In the decade that followed, essentially identical statements of the obligation of the child’s attorney have been included in the Matrimonial Commission Report (Miller, 2006), the NYS Bar Association Standards for Attorneys Representing Children in Custody, Visitation and Guardianship Proceedings ( June 2008), and, most importantly, in the Rules of the Chief Judge (2007), which serves as a national guidepost for resolving the often misunderstood role of an attorney representing a child. The Chief Judge clearly defined the role of the attorney for the child as a respected member of the bar who is bound, as are all attorneys, to zealously advocate his or her client’s expressed wishes. An exception to this advocacy position is only to be made in those limited circumstances where there is lack of capacity or substantial risk of imminent, serious harm to the child. 22NYCRR § 7.2(b).
Opposition to Involvement By Attorneys For Children Some participants in the matrimonial-law field argue in favor of rolling back the clock to the days when children had no independent voice in custody proceedings. Frequently, they are concerned that the court sees the input of the child’s advocate as the most reliable starting point for consideration in the proceeding. But we ask: What better starting point is there for an enlightened jurist charged with determining the child’s best interest than that of the attorney for the child, who is charged with remaining impartial and independent of either parent? Many matrimonial and family law practitioners recognize that the detriment to children in high-conflict custody proceedings is rooted in
the impaired ability to parent that is manifested by an inability to distinguish between one’s own needs and those of the children. It is in this arena that the value of an attorney for the child is most clearly apparent. It is the attorney for the child who is obligated to refocus every custody or visitation proceeding on the child and ensure that the proceeding remains a child-centered decision-making process. Young people frequently disclose information to their attorneys that goes to the heart of their parents’ custody dispute; information that they are uncomfortable disclosing to either parent. The Attorney for the Child is the only participant in the litigation who is duty-bound to present a position to the court that is based on a dispassionate and objective articulation of the subjectchild’s wishes and needs.
Due Process Concerns The exercise of the child’s right to be heard has also been cited as the basis for the argument that zealous advocacy for the subject-children means a trampling of the parents’ due process rights, as exemplified by those instances when the court deems it appropriate to take the child’s testimony in camera. However, it is critical to recognize that a child-centered custody or visitation proceeding does not translate into a due process deprivation for either parent. It is well settled that “‘[d]ue process,’ unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.” Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961). Rather, due process “is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972). continued on page 6 The publisher of this newsletter is not engaged in rendering legal, accounting, financial, investment advisory or other professional services, and this publication is not meant to constitute legal, accounting, financial, investment advisory or other professional advice. If legal, financial, investment advisory or other professional assistance is required, the services of a competent professional person should be sought.
The Matrimonial Strategist ❖ www.ljnonline.com/ljn_ matrimonial
5
Child-Centered
Conclusion
continued from page 5 Applying these principals to custody proceedings, the New York Court of Appeals has stated unequivocally: [I]n a custody proceeding … , the first concern of the court is and must be the welfare and the interests of the children … . Their interests are paramount. The rights of their parents must, in the case of conflict, yield to that superior demand … . It requires no great knowledge of child psychology to recognize that a child, already suffering from the trauma of a broken home, should not be placed in the position of having its relationship with either parent further jeopardized by having to publicly relate its difficulties with them … . [W]e are convinced that the interests of the child will be best served by granting to the trial court in a custody proceeding discretion to interview the child in the absence of its parents or their counsel. Lincoln v. Lincoln, 299 N.Y.S.2d at 843 - 845 In the Lincoln decision, the Court of Appeals also provides a succinct answer to the concern for a parent’s rights by reminding us that the goal of matrimonial litigation is not the “win” for one parent or the other, but the resolution of the case by focusing on the interests of the child. Simply put, courts should determine whether to hold an in camera interview based on whether doing so will “benefit the child by obtaining for the Judge significant pieces of information he needs to make the soundest possible decision.” Lincoln v. Lincoln, 299 N.Y.S.2d at 844.
Mediation continued from page 2
3. Contact Experts Ahead Mediation
of
Although you may not have hired any experts yet, when evaluating 6
A custody proceeding that includes a zealous advocate for the child is one of the best ways to break the cycle of parent-centered cross-allegations and scorched-earth trial tactics, and facilitate the parties’ ability to accept that the only relevant outcome is the one that best serves the child. Thankfully, the New York legislature and judiciary have demonstrated an understanding that children are rarely uninvolved or unaffected by custody disputes that end up in litigation. After all, these are parents who have failed to resolve their custody arrangements amicably, have failed to successfully avail themselves of their communities’ resources, such as family, friends, clergy or mediation services to resolve their dispute, and have had to resort to asking the State, through its courts, to make their custody decision for them. The reality is that, in non-settled custody disputes, the courts are too frequently confronted with at least one parent who profoundly distrusts the other, who disrespects the other’s intentions and parenting ability, is unable to see any positive traits in the other party, is unable to envision solutions other than his or her own, and who is locked in a cycle of anger and blame. As the only attorneys in these proceedings who are not bound by the positions or demands of either parent, it is the attorney for the child who is uniquely positioned to utilize all the tools at a skilled attorney’s disposal. These may include targeted motion practice, oral advocacy and incisive direct and crossexamination of witnesses, to ensure that the unadulterated voice of the child is heard. It is only when both your case before attending mediation, consider whether you need to retain an expert or at least consult with one. For instance, if there is real property at issue in a divorce, a frequent dispute between the parties is the value — one party claim-
parents and the child present their positions that the court is able to meet its legal obligation to reach a fully informed decision regarding a child’s best interests. Of course, while the attorney for the child is bound to zealously advocate his or her client’s position, such advocacy should never preclude an individualized assessment of each child’s level of development and understanding. At Lawyers For Children, we assign a staff social worker to every case, so that our attorneys’ communication with their clients is always informed by a professional, developmental assessment and tailored to the individual young person. We never view ourselves as an arm of the court and always seek to remember that justice will only be served if every interested participant in a custody proceeding is zealously represented. While there are certainly attorneys for children who do not appropriately discharge their duties, the same might be said of other groups of attorneys. The answer is to educate and train those attorneys on how to fulfill their professional obligations, rather than to deny children legal representation and a voice in the proceedings that so directly impact their lives. Any concern that a child-centered custody proceeding will harm one parent or the other is unwarranted. Those who advocate a return to the days when the child’s position was not represented in custody proceedings should embrace rather than fear the progress that has been made, by recognizing the critical importance, to all parties, of giving children a voice in the courtroom. —❖—
ing it is an asset worth a certain amount of money, the other party claiming that the asset is worth less or is even underwater because of the mortgages associated with the property. continued on page 7
The Matrimonial Strategist ❖ www.ljnonline.com/ljn_ matrimonial
July 2013
Mediation continued from page 6 In such an instance, before you attend mediation, consult with an appraiser or realtor to get an appraisal or at least a comparative market analysis (CMA) so that an objective number can be utilized at the mediation. Other examples include conferring with a CPA concerning a certain asset owned by the parties, or regarding tax implications related to a contemplated distribution. Having these conversations before the mediation can be helpful in shaping your case and allowing you to know the entire picture once the mediation proceeds. If an expert has already been retained and is anticipated to provide a report, such as a guardian ad litem’s findings and recommendations, or a business valuation, make sure to have this analysis beforehand, as well as to circulate it to all necessary parties. If it is your intent to rely upon this report, or the expert’s analysis concerning a certain issue (for instance, the other party’s income and ability to pay support), it may be helpful to have the expert in attendance at the mediation.
4. Prepare, Prepare, Prepare Once you have reviewed the file and gathered all necessary information, whether obtained from discovery, the client, or an expert, it is important to prepare for the mediation. You would be surprised how often attorneys simply show up at a mediation with a file in hand and nothing more. Preparing is crucial to a productive, efficient and ultimately successful mediation. It entails: Drafting the settlement agreements. In Florida, for instance, parties to a divorce often memorialize their settlement in two separate agreements: 1) a Parenting Plan, which sets forth all of the parenting issues, such as timesharing/contact, holiday schedules, decision-making authority, extra-curricular and summer activities, medical needs of the July 2013
children, educational issues, and the like; and 2) a Marital Settlement Agreement, which sets forth all of the financial and other issues, such as equitable distribution of the marital estate, alimony, and child support. These documents are usually quite lengthy (sometimes more than 30 or 40 pages depending on the issues covered therein) and require significant attention to myriad details. It is helpful, therefore, to have thought through the language and provisions to be included in these documents before the mediation so that, in the rush of a mediation, after clients have been sitting through hours of discussion, they do not then have to wait impatiently for an agreement to be drafted. In addition to helping the attorney, it is valuable to have the client review these draft agreements in advance of the mediation as well. This familiarizes them with the terms of the documents so they are not forced to digest all of the legalese in the hurried pace of mediation. It also allows them to become a part of the process early on so that they feel as though they have contributed to their case. Doing the research. In addition to drafting the settlement documents, be sure to do the research and necessary calculations to support your positions. For instance, do you need supporting case law as to a particular issue? Or, maybe, for example, a secondary article explaining how your particular state handles the formula for determining the marital and non-marital values associated with unvested stock options, or with passive appreciation in real property? Similarly, if child support or alimony is at issue, it is beneficial to run calculations for various scenarios you anticipate being at issue so that both you and the client have an idea of the range that can be expected to be discussed at mediation. Having already done both the research and the math ahead of time, these facts and numbers are likely to be what is relied upon at media-
tion and also help to avoid any errors at the same time. Preparing everything else. If the goal of mediation is to resolve all outstanding issues in the matter, try to prepare everything you will need to do so, such as the Final Judgment, so that opposing counsel can review and approve it at the mediation; the power of attorney or other such documents necessary for the parties to transfer title to one another’s vehicles; the deeds necessary to transfer real property; and the income deduction order/income withholding order, so that it is ready for the judge to sign. This enables both attorneys to save time after the mediation on “wrap-up” matters, thereby allowing their clients to get to the final hearing as quickly as possible to bring the matter officially to a final conclusion.
5. Meet
with the
Client
Prior to the mediation, but after you have sufficiently prepared, set a time to meet with the client. This meeting is crucial. Most clients are wholly unfamiliar with the mediation process; meeting with them in advance of the mediation provides the opportunity to get them acquainted with it. First, explain what mediation is and how it is different from a court proceeding (i.e., explain that mediation is a form of alternative dispute resolution, that the mediator assists the parties in reaching a resolution, but is not a judge and, therefore, is not a decision-maker, and that the process is confidential and protected from disclosure in the event it is unsuccessful). It often helps clients to know what to expect and that, while you encourage settlement, they will not be forced to reach an agreement at that time (i.e., they have control). continued on page 8
ALM REPRINTS NOW 4 WAYS TO ORDER Call: 877-257-3382 Visit: www.almreprints.com e-Mail:
[email protected] Scan: QR code at right
The Matrimonial Strategist ❖ www.ljnonline.com/ljn_ matrimonial
7
Mediation continued from page 7 The meeting with the client is also important for discussing strategy for mediation, reviewing the aforementioned documents once again, establishing the client’s goals and hashing out options for mediation in conjunction with those goals. During this discussion, it is advantageous to provide the client with realistic expectations so that s/he understands that, while you may take certain positions and request certain relief at the mediation, this may not be what is ultimately agreed to or what they would be entitled to should the matter proceed to trial. In this regard, a client should be made aware of “worst-case” scenarios, as every case has a weakness. Such realistic expectations are vital because successful mediations require compromise from both parties. In addition to legal strategy, the client meeting is an opportunity to prepare the client for the emotional side of mediation. Explain that both parties are often dealing with various emotions (whether sad, angry, scared or frustrated) and will be bringing these emotions with them to the mediation. As a result, it is important for the client to be patient and flexible. Further, as mediations can become emotionally charged, advise clients that they can take a break from the mediation at any time, and can always speak with you alone if necessary. In discussing this aspect of the mediation, use this opportunity to assess the client’s mental state and determine, for instance, if it should be recommended that they speak with a counselor before the mediation.
6. Educate
the
Mediator
In advance of the mediation, utilize your hard work and preparation to your advantage: Send it to the mediator. One effective way to
8
accomplish this is to prepare a narrative letter or mediation statement, which explains to the mediator the parties’ history and background, as well as the issues in the case. Take this opportunity also to emphasize important considerations that may not be gleaned from a review of the pleadings and to advocate your client’s concerns and positions. After reviewing this mediation statement, the mediator will come to the mediation understanding your client’s perspective, concerns and goals. This can be especially valuable as the other side may not take the time to prepare such materials for the mediator.
In advance of the mediation, utilize your hard work and preparation to your advantage: Send it to the mediator. With the mediation statement/ letter, include a notebook of all the necessary pleadings (Petition, Financial Affidavits, etc.) and mediation documents (the draft Marital Settlement Agreement, child support guidelines, etc.). The mediator will appreciate the time and effort you have taken to get him/her up to speed; further, it will demonstrate that you are taking the mediation process seriously. When creating the notebook for the mediator, make extra copies for yourself and the client so that everyone can easily refer to the same materials during mediation, e.g.: “If you flip to Tab 4, you will see that her expenses show … ”
7. Initiate a Dialogue Opposing Counsel
with
opposing counsel before the mediation. For instance, a telephone conference can be set to discuss proposals or at least outline the issues needed to be addressed at mediation. A letter can also be sent to opposing counsel enclosing the draft settlement documents and explaining your preference to work from them during the mediation. Providing these documents, which may contain either blanks to be filled in at mediation or your client’s suggested proposals, prior to the mediation, ensures that any “shock” or “surprise” from the other side is handled before the mediation, giving the other party a chance to digest your positions and speak with his/her attorney about them. By addressing the inevitable questions with opposing counsel beforehand, you ensure that both parties are prepared for mediation because everyone is on the same page.
8. Make Sure You Are Prepared After you have prepared everyone else, now make sure you are ready as well. Confirm again that you have all mediation materials and extra copies of any necessary documents. If you are traveling to a different office, bring a laptop with all of the documents already uploaded so that they can be easily amended during the mediation. Also, prepare an outline of the issues and an “opening statement” if this is how your mediator normally begins a mediation. Last, be ready to be creative. Mediation provides the chance to come up with solutions that may not be possible at trial. Being creative will enable you to come up with solutions that work to create a global settlement agreement for both parties.
Depending on the case, it may be helpful to initiate a dialogue with
To order this newsletter, call: 1-877-256-2472
—❖—
On the Web at: www.ljnonline.com
The Matrimonial Strategist ❖ www.ljnonline.com/ljn_ matrimonial
July 2013
