Divorce Mediation and Personal Wellness

Yoga, meditation, healthy eating, exercise….Personal wellness is a lifestyle these days that people emphasize in different ways.  But, when couples are going through divorce, there are many reasons that people put their own personal wellness aside.  Guilt, anger, or a misguided feeling that their focus needs to be just on their children at their own expense causes people to try to just “get through” their divorce. Their personal wellness gives way to the stress, financial struggles, fear and anger that are so prevalent when families are going through a crisis.  People understandably believe it is easy to just a hire a lawyer and hope it all works out in the end.

But, I believe divorce mediation can be a way to shift from that approach and help each spouse take control of the process.  A knowledgeable and experienced attorney or divorce mediator can be invaluable. Certainly, expertise and a strong understanding of divorce law should not be overlooked when looking for a divorce mediator.  However, a skilled mediator can also help a couple develop communication methods to handle conflict outside of the mediation sessions, as well.  It is for this reason that I believe that people that seek out mediation want an alternative to destructive litigation.  Mediation is not for every person or every case. But for most, it is at least worth trying.

Certainly, conflict and divorce do go hand in hand–it underlies even the most amicable of divorces.  Of course, people going through divorce feel vulnerable and need to stake claims in what they believe is valuable in their lives.  I always say that mediation is not to avoid conflict but to try to make the conflict healthy and productive.

Both attorney-mediators and therapist-mediators use different methods to help couples get to a place where they can discuss the issues at hand.  Mediators can help couples curb their highly charged rhetoric, refocus on what they are really talking about, re-frame their thinking, try new problem solving techniques, shift their decision making to focus on their children, and use creative solution finding to truly meet their needs.  This is just a part of the mediation process.  And after awhile, a relief sets in as couples find themselves engaged in a true conversation about the major decisions that they are facing.  Mediation can also help people set aside or deal with their emotional roadblocks at least to the point where true communication can occur.

As one way to do this, many mediators use “pre-mediation” models to help couples discuss their own conflict awareness and what brought them to the mediation in the first place. In other words, mediators help people understand: are they hurt, depressed, angry, reluctant, or scared?  Talking about their feelings coming into the mediation sessions can help each individual, but also the other spouse and the mediator, know where each person is in their own emotional journey through the divorce process.  Knowing you are angry, for example, can help you acknowledge that feeling but then put that aside to focus on the decisions.  Knowing your spouse is hurt by something can be helpful, as well. If an apology or a conversation can take place between the couple to attend to those emotions lying underneath the surface, it can go a long way.  Oftentimes, couples have stopped talking and the mediation room is the only place real communication is even taking place. And, sometimes people just need to vent.

After the pre-mediation takes place, couples can then really commit to the mediation process.  The mediator can then do the work of making sure each person is knowledgeable in their decision making and developing solutions.  It is easy to see how this is different that the normal adversarial litigation process.

It is this approach to divorce, coupled with the actual work of mediating and communicating through the divorce negotiations, that can be bring wellness.  Mediators understand that a couple is defining their new relationship.  Some couples continue to parent together.  Some continue to own businesses or property together. Some couples wish simply to part ways and benefit from the sense of emotional completeness from the process.  Whatever the goals of the parties, mediation at the very least provides a way to attend to their own emotional, financial and personal wellness.   Some therapists call this the “divorce readjustment.”  While certainly therapy and other personal supports for coping can be important, why not also take a mindful approach to the actual divorce process itself? Certainly, a reduction of conflict can only benefit children whose parents are divorcing.  When parents are taking care of themselves and communicating, they are better able to focus on the needs of their children.  And when divorcing spouses are actually talking, that can also lead them to come to terms with the changing of their relationship.

For a great article on how mediation expressly helps in each stage of divorce grief, check out this link:

http://www.divorcemed.com/Articles/ArticlesByDiane/The%20Psychological%20Stages%20of%20Divorce.htm

Families Coping with the Stress of Divorce

For anyone going through a divorce, you well know that the stress levels around the process are high. Many compare it to the death of a loved one and require support in coping with the way the stress affects their lives. Because, like grief, divorce acceptance is a process, each spouse can be in a different place in the process during the negotiations. The unknowns about the future add to the stress, and can make people very afraid of what life is going to be like on the other side of the process. Here are some tips that I have found have helped other people coping with the stress around their divorce:

Give yourself permission to take care of yourself. Go the gym, get a massage, be with friends. Stay connected with your faith and lean on your support system.

Support Groups. They are not for everyone but it can very helpful to know that you are not alone and that there are ways to cope that you may not have thought of.

In making decisions about your divorce, check in and see where your feelings are and why. This is where therapy can be especially helpful. So many emotions are bubbling to the top during the divorce and can impact your choices (guilt, betrayal, anger, sadness, fatigue). Take your time and make informed decisions.

Remember, every person’s divorce is different. Try not to compare your experience with that of your friends or neighbors. I tell people, it is your marriage and your divorce. You have control over the tenor and also many decisions.

Imagine your life 6 months, 1 year, 5 years down the road. Do things to support the person you envision. Do you need to go to school or update a licensure? Are there things you want to sell in order to have a fresh start? (Some people like to hire a life coach to help them figure out this transition. I can refer you to someone, if interested. Just call or email my office (508) 351-9060 or anarris@narrislaw.com).

Spend fun, quality time with your kids. Remember, your kids are going through stress, too, and there are many things that you can do to help your children cope. Alert the school that the divorce is going on so that they can support your child during the day. Reassure them. Reduce their exposure to conflict. Avoid comments about their other parent. (In Massachusetts, there are some great providers & therapists who can help children of parents going through divorce. Feel free to call me at (508) 351-9060 and I will provide you with referrals).

Last put not least, I think it can be very helpful to engage in a divorce mediation process to get information and take the time to find a way to communicate with your soon-to-be ex. Some people like to think of it as going from a romantic relationship to a business relationship. Some couples find that they can even keep a friendship intact, after they have made some common ground. Feeling invested and empowered in the mediation process allows you to make well-thought out and sustainable agreements that will reduce some of the stress. Ask your attorney questions, if you have a lawyer. A little information can go a long way to reducing stress.

Wherever you are in the process of divorce, being aware of the stress and finding a way to take care of yourself and stay healthy will help you, your children and will enable you to make good decisions.

How to treat contracts for intellectual property in divorce

On August 6, 2015 the Massachusetts Appeals Court issued its decision in the matter of Canisius v. Morgenstern.

The issue in this case is whether the trial judge was right to exclude from the marital estate the future proceeds from a contract that was created during the marriage relating to a novel.  The wife, who wrote the novel, argued that the future value of that contract was speculative and therefore should be excluded.  The husband in that case appealed, arguing that the proceeds from two contracts associated with the successful novel were part of the marital estate.  The Massachusetts Appeals Court agreed with the husband and ruled that such rights are not an expectancy but an enforceable “vested or non vested” right that should have been included in the divisible marital estate.  In other words, the Appeals Court in this case agreed with Mr. Canasisiua and ruled that the judge committed an error of law by excluding the wife’s “contractual rights to future payment arising from her novel.”

The fact that there was a contract was an important distinction with the court–different than a patent or copyright in and of itself.

The decision issued in this case reminds lawyers and mediators that there are many intellectual property rights that may be at issue in a divorce.  Parties do have options on how to treat their intellectual property in divorce.  So long as the copyright or patent had a contractual agreement associated with it, under this case, there is an asset whose value is not speculative.  The proceeds can be divided if and when received  But, as acknowledge by the Appeals Court,  putting a value on future sales can be a speculative amount.  Discussion of options, creative negotiations and consideration of the value of the contract can be discussed.

So, parties can agree to share the future proceeds in an amount that seems fair (50% each, 60/40, etc.), share the proceeds after a certain amount has been accrued from the proceeds (artist takes the first $100,000 and the parties then share all future proceeds equally), or the non-artist spouse can waive any property interest. This can, but does not have to, be in consideration of a disparate division of another asset.  The point made from this court decision is that the value of those contracts should not be excluded.

Attorneys should also be aware of future property rights that stem from the copyright.  I would advice family law attorneys, or parties divorcing, to consult with an intellectual property lawyer in such cases to help identify what rights are at stake, what the value of those contracts might be and how to go about dividing the future proceeds from contracts down the road.

Division of Property: Valaskatgis v. Valaskatgis

Today the Massachusetts Appeals Court issued a decision in the matter of Valaskatgis v. Valaskatgis. In its decision, the appeals court clarified whether the definition of the phrase “length of marriage” in the alimony statute applies also in the “division of property” statute. The Appeals Court decided that it does not apply.

The couple in that case was married in 1985 and the wife filed for divorce about 27 years later. There was a one year gap between the 2012 filing of the divorce and when the settlement agreement was reached in 2013. The husband argued that the definition of length of marriage in the alimony statute–that ends the date of marriage at the service of the divorce complaint–should apply to defining “marital assets,” as well. This is important in divorce cases because assets that develop during the marriage are subject to division.

The wife took the position at trial and on appeal that the assets after the filing were also part of the marriage, applying the date of the divorce judgment as the final date of the marriage. In other words, she argued that all assets up until the final judgment should be divided.

The trial judge determined that the date of the separation agreement dictated the date of marriage ending.

The Appeals Court, in its analysis of this issue, applied the definition of terms in the alimony statute narrowly, finding that they apply only to the statute itself. “Those sections were also created by the Alimony Reform Act and concern alimony only.” Instead, the Appeals Court reiterated the principle established in a 1982 case (Ross v. Ross) that “a couple is not divorced until the judgment becomes absolute.”

The Appeals Court affirmed the judge’s decision to allocate and divide the marital assets from the date of the separation agreement.

As a practical matter, couples can negotiate what assets shall be considered “marital property” and also the valuation of the properties at date of separation, date of filing, date of the agreement, etc. The issues of fairness and the circumstances of the parties dictate that decision making for the couple. This can be made part of the negotiations and clearly defined in any agreement. However, if the issue is contested, I imagine that many judges will rely on this ruling for guidance and may be more likely going forward in valuing property at the date of divorce.

Forward Looking Divorce or Custody Agreements

Sometimes it can be daunting to try to imagine what life will be like years down the road when planning your divorce or making a parenting plan. What will your income be? Where will you be living? What will the needs of your children be? Luckily, there are things that you can do in negotiating your family law agreements that will allow things to adjust to any changes as they come.

For example, you can include in your Separation Agreement that you are contemplating certain specific changes. Then, name that change of circumstances in your agreement. Some examples of these “triggering events” can be as follows (but certainly the options can be specific to different cases):

(1) When the oldest child emancipates;
(2) When one spouse starts working 35 hours a week or more;
(3) When the house is sold;
(4) When the stock options are sold; or
(5) If the book rights are sold.

These are the contingencies upon which a change to the agreement will be made. You can also choose a date certain as the triggering event. For example, “The parties anticipate that Wife will require an opportunity to seek work and steady employment, and that the alimony payments shall change after that time. Accordingly, on May 1, 2016, the alimony payments will reduce and the parties shall calculate alimony as 33% of the Husband’s gross income. Husband shall no longer be required to pay any additional costs of the Wife’s maintenance and support beyond this general alimony payment. The parties shall use the gross income as declared on Husband’s 2015 tax return to calculate alimony support payments after May 1, 2016. The parties agree that Husband shall pay a weekly general alimony sum to the Wife consistent with the Massachusetts Alimony Statute as it exists at that time.” This, of course, is just an example and parties can tailor their agreements based on the circumstances of their case.

As shown, you can discuss with your spouse or the other parent what the new formula will be to calculate the change. Are the parties going to use the child support guidelines? What percentage of income are they going to use to determine alimony (30%, 32%, 35%)? What sources of income or money are going to be included or excluded in calculating the figures? The goal here is to be as specific as possible. You can also be specific about what sort of information are you going to exchange to reach the new formula. Oftentimes, parties can include provisions that they will exchange 1040 tax return statements or pay stubs upon request. You may also agree that both parties can request records for the children, or something that effect.

The needs of children certainly will change over time. AS children grow from one stage of development to the next, new plans will need to be made. With custody and visitation issues, you will want to specify in your parenting plan various things that will be considered if you expect a change to the parenting plan. Will you consider the future wishes of the child and how? Do you plan, in the future, to discuss and agree on extracurricular activities? Do you want to involve a developmental specialist to inform your decisions?

Whatever your plan is for future changes, the key is to test the scenarios and try to imagine what information you will want. This will ensure good decisions are made down the road, just as they are made at the time of the divorce.

Another great tool for spouses to consider is whether they want to agree to mediate these future issues if they are unable to come to terms. For example, parties can agree to mediate alimony if they are unable to reach the agreement.

Contemplating future changes in making your divorce agreement or parenting plan can help ensure a forward looking, sustainable agreement. For more information, always contact an experienced family law attorney or mediator that can help you address these potential issues that may be important in your case.

Modification of Alimony: Today’s 3 important cases

Today, the SJC issued three decisions that dealt with alimony modifications sought because husbands (or payors) reached the age of retirement.  These three decisions make some distinctions but stand for the proposition that if the marriage was over 20 years long, even if the alimony provisions merged, the new law will not apply retroactively.  You cannot seek modification and allege that the new alimony law as it pertained to the retirement age created a material change of circumstances on those facts.

In Chin v. Merriot, the SJC reviewed the husband’s modification request for a divorce agreement that had merged into a judgment of divorce and had provided that alimony shall continue until the death of either party or remarriage of the wife.  Chin filed a complaint for modification on the grounds that he had since obtained the full age of retirement and that Merriot had been cohabitating with another. In the new alimony law, cohabitation is tantamount to remarriage for support purposes.  (G.L. c. 208 sec. 49(d)).  The trial judge ruled that the new law did apply not retroactively, that there hadn’t been a material change of circumstances from the 7 months prior when the judgment issued, and dismissed the Complaint for modification.  The SJC agreed and affirmed the judgment of dismissal.  In its decision, the SJC noted that Chin had already passed full retirement age when the original judgment issued and Merriot had already been living with her significant other when the agreement was reached.  The SJC looked to the uncodified provisions of the act to determine the legislative intent for retroactive application to general term alimony awards that merged.  Failing to see any legislative intent for modifications of alimony before 2012, the SJC found that the trial judge acted within her discretion in finding no change of circumstances.
The second case, Rodman v. Rodman, also came down today by the SJC and the court reviewed an application for modification for a separation agreement that merged into the judgment of the court, as well.  The difference was in that case the husband attained full retirement age some time after the initial judgment.  The husband in that case had been ordered to pay long-term alimony and, similar to Chin, there was no provision in the agreement that the alimony would end upon him reaching retirement age.  This was distinguishable from the new alimony law sec. 49(f) that provides “general alimony orders shall terminate upon the payor attaining full retirement age.”

The question that was posed to the SJC in Rodman was whether that portion of the alimony law applied retroactively to cases where the payor later reached retirement age, allowing parties to modify the duration of their alimony due to the new law when the alimony provisions had merged into the judgment of the court.  The SJC declined to allow the payor-ex husband to terminate his support payments in that case, as well.  In doing so, the SJC ruled:  General Laws c. 208 sec. 49(f) does not apply retroactively to alimony orders in divorce judgments entered before March 1, 2012.

Lastly, in the case of Doktor v. Doktor, the SJC reviewed another modification of alimony issue.  Similar to both Chin and Rodman, this case involved a long term marriage, a general alimony payment, and a provision in the agreement that the alimony would end upon the death or the remarriage of the wife without any mention of retirement age.  The SJC reiterated its rationale in Rodman, stating that “modification based on the newly-enacted durational limits in G.L. c. .208 sec. 49 affords the sole exception to prospective application.”  In other words, you can only seek a modification of an old alimony order based on the new alimony law if the duration of your alimony payments was affected and your marriage was under 20 years long.  “[W]here a payor who had been married to a recipient for fewer than twenty years seeks to modify an alimony obligation based on the durational limits of G.L. c. 208 sec. 49, and the payor also ‘will reach full retirement age on or before march 1, 2015,'” then the payor can file a modification. (emphasis added)

As the courts and the lawyers tease out the application of the new alimony law, these cases should be very helpful.  As a practice note, especially when there is a long term marriage, it appears that listing the new law and also other grounds (if they are available) for the modification and change of circumstances would be best practice.

Alimony Modification under the new alimony law: new case Lalchandani v. Roddy

Today the Massachusetts Appeals Court issued its decision in Lalchandani v. Roddy, which dealt with a motion to dismiss a Complaint for Modification. At issue before the Appeals Court was whether the lower court properly dismissed the husband’s Complaint for Modification where he sought to terminate his alimony obligation. The Appeals Court decided this as a case of first impression, interpreting the new “Alimony Reform Act of 2011.” The Appeals Court affirmed the dismissal of the modification action, relying on the parties’ 1992 agreement to have alimony provisions survive as an independent contract and finding that the new law did not supersede that agreement to leave alimony unmodifiable.

The parties had been divorced since 1992 and had been married for almost 21 years before that. Husband had agreed to pay wife $4,333.33 a month in alimony, along with other provisions. This alimony term survived–or did not merge–into the judgment of divorce. This survival clause has very specific legal meaning. It basically takes the issue of spousal support outside of the court’s prevue for later modification and instead treats those “surviving” provisions as a contract. The agreement even contained language that this provision of support would be “forever binding upon the parties.” The parties later modified the amount by agreement and some other agreements were made about the husband’s ability to seek modification down the road. This, too, survived.

Then, in March of 2013, the Husband filed a complaint for modification seeking to decrease or terminate his support obligations because he had reached “full retirement age” under the new alimony statute. The new alimony statute (G.L. c. 208 sec. 48) says that general term alimony will end upon the payor reaching “full retirement age.” The lower court agreed with wife, however, that the modification was not available to the husband here because the surviving 1992 agreement precluded relief under the new statute.

The appeals court made a specific rule here that may apply to many people who hope to modify their orders in light of the new law. The Appeals Court found that if the terms of the support order are not modifyable by their terms, in other words–if the alimony agreement survived–parties cannot seek modification by virtue of this new law. (citing sec. 4(c))

As a practice note, the first thing to do will be to review the underlying agreement’s merger language before reviewing the orders under the existing law. There are many reasons why people agree to alimony being a provision that survives, oftentimes even waiving other interests in order to protect their future rights to support. The new alimony law does not permit undoing those terms. In essence, if alimony survived in the original agreement, the finality had been negotiated and is binding.

buyer’s remorse and divorce settlement

In Oklahoma, an oil tycoon and his wife are appealing a divorce settlement that awarded the wife a billion dollars (Gramm v. Gramm). While both parties agreed the settlement was fair and reasonable at the time of the agreement, just weeks prior, the husband argues now that because of falling oil prices, the settlement is no longer fair.  Interestingly, according to the Washington Post online story released yesterday, the date of separation was a hotly contested issue throughout the litigation because that date greatly influenced the value of the marital assets for purposes of their division. While the state supreme court will be deciding the issues in that case, this was an interesting story about how to divide assets when the future financial landscape of the assets is speculative or subject to change.  But, typically, even if property values change after a judgment of divorce, judges are reluctant to overturn an order approving an agreement.  This is so on grounds that finality in litigation is a noble goal.

Buyers remorse of a divorce settlement can be abated by testing the agreement, holding it up to various scenarios in mediation or when negotiating division of property.  Also, both the date of valuation and the method of division (a value certain or a percentage of ownership, etc) can be discussed. When faced with concerns over changing property values, parties can build in contingencies on when or how property will be distributed when deciding how to divide assets –specifically addressing what to do in the event that circumstances change. While I personally believe there are benefits in coming to an accord with concrete figures and clean divisions, complicated cases can call for more complex planning.  It looks like the estate in this Oklahoma case was once valued at over 19 billion dollars and is now worth 10 billion.  The parties exchanged over 600,000 pages of discovery.  This case certainly seems like one where the litigation will likely continue for some time. To read the full story, check out http://wapo.st/1l5KmXc

Copyrights & Intellectual Property in Divorce

Massachusetts is the home to many talented authors, artists and inventors. Intellectual property rights exist with trademark and copyright protections for many creative works being made by people throughout the Commonwealth.  The question becomes what to do with these intellectual property rights when two spouses are going through a divorce?

Recently, I have been researching this issue and have discovered some very interesting information that may pertain to many people in their divorce and require special consideration from divorce professionals.  In your cases, are there teachers who have written text books?  Are there artists who have created pieces of art?  Are there singers or songwriters who have created songs or playwrights or composers? Are there scientists who are developing patents?

Specifically, as it pertains to authors, there are different rights that may exist. This blog post contemplates authors & books but may apply to many other creative works. Ultimately, an intellectual property attorney may be required to guide parties and attorneys on how to properly treat this particular type of property.

The first thing you want to do is identify the names of and date of creation for the various works that were created during the marriage.  Each book needs to be named in the separation agreement so there is no dispute over which specific copyrights are at issue.  The other spouse can waive any interest in or rights to works created before or after the marriage–or any works not specifically named in the agreement.

Then you want to determine what rights the artist maintains.  Are there any limitations to the author’s interest by virtue of any contracts or agreements?  For example, an author oftentimes gets an advance for those books if there is a publishing agreement.  The books will not start earning income until that advance money is paid.  From there, a royalties contract may entitled the author to a portion of future proceeds or revenues from the books’ sale.  This can be a speculative amount so it is difficult to value a copyright as a piece of property.  To address this, parties can agree to share the future proceeds in an amount that seems fair (50% each, 60/40, etc.), share the proceeds after a certain amount has been accrued from the proceeds (artist takes the first $100,000 and the parties then share all future proceeds equally), or the non-artist spouse can waive any property interest.  This can, but does not have to, be in consideration of a disparate division of another asset.

Beyond royalty revenue, there are other rights inherent in intellectual property and books.  For example, who will maintain the right to control the copyright or make decisions about what to do with the work of art? Typically, that right is maintained by the artist.  These rights can include whether to create derivative work, license the copyright, or create a sequel.  Who maintains the right to control the decision making of the copyright can be designated in the separation agreement.

Finally, there may be future property rights that stem from the copyright.  For example, the copyright may be licensed or movie rights may be licensed.  This can create all sorts of revenue.  Parties can consider whether they might want to share in the proceeds from any future licensing agreements that may be derived from that intellectual property, as well.

Ultimately, parties can decide what makes sense to do with these works in their divorce.  Spouses can discuss their support of the parties or contributions that were made towards the creations of the book or whether it makes more sense to allow the artist to take the copyrights in their entirety.  The important thing is to not overlook this potentially very valuable piece of property when dividing a martial estate.

SJC Case of Bower v. Bournay-Bower: parenting coordinators in Massachusetts

Today the SJC published the matter of Bower v. Bournay-Bower. At issue before the Court on first impression was whether a judge in a divorce proceeding can order a parenting coordinator over objection of the parties. The SJC also reviewed whether this parenting coordinator could have “binding decisions-making authority” if a dispute between the parents arises.

The SJC held that the trial judge in this case went beyond her authority by appointing the parenting coordinator with the decision-making authority when both parties did not approve of the appointment. This was, in the words of the SJC, an “unlawful delegation of judicial authority.”

The parties in the Bower case filed for divorce in 2009 and experienced over 2 years of litigation. A very detailed 6 page parenting plan came out of the divorce negotiations. The parties agreed to share joint legal custody and a visitation schedule was decided upon. Subsequently, both parties filed a contempt action seeking compliance with the agreed-upon parenting schedule. The judge appointed the parenting coordinator in an attempt to prevent disputes in the future and “implement a process” for the parties to work out these issues short of court. However, Mother objected to the parenting coordinator. The order issued by the judge required the parties to take their disputes to the parenting coordinator, who had binding authority over the parties to decide on issues in dispute, before being able to file a contempt with the court.

The SJC, in its decision, wrote in detail about the potential value of a parenting coordinator. But, in the end, decided that the judge’s appointment went beyond the scope of what was a permissible appointment. The SJC recognized that generally, a parenting coordinator is oftentimes analogous to a mediator. In some cases, providing a hybrid of mediation and arbitration services to parents. The use of parenting coordinators has become increasingly common in Massachusetts and their value is seen in various cases. But, there is no specific statute governing their appointment. There are laws for housing courts, civil cases, and the like that set up a mandatory alternative dispute resolution process. However, this is not so for family law and divorce cases.

This case is interesting for mediators in Massachusetts because the case seems to suggest that the judge was well within her right to order the parties to the parenting coordinator in general. For example, the judge has discretion to appoint GAL’s and the parenting coordinator can help the parties with disputes as they arise on a day to day basis. “Therefore, probate court judges possess the inherent authority to refer parties to a parent coordinator in circumstances in order to conserve limited judicial resources and aid in the probate court’s functioning and capacity to decide cases, or if in the judge’s discretion such referral is necessary to ensure the best interest of the children in a divorce–or custody related proceeding.” However, when the role of the coordinator ventured into that of a binding arbitrator and limited the ability of the parents to access the courts, the appointment went too far. The mother in this case should not have been bound to binding resolutions without her consent. The mother also was entitled to court action on her complaint for contempt.

Because the judge’s decision on mother’s contempt was deferred by this unagreed upon parenting coordinator process, the mother’s due process rights were affected. She had a right to seek recourse in the courts. Her future ability to seek court action was also affected by the order. In this case, the judge was not able to oversee the decision making of the parenting coordinator. This, too, was problematic because it limited mother’s access to the courts.

It appears from this case that the judges in divorce cases also have authority to refer people to mediation. This is especially so if there is an agreement by the parties for such a referral. But, according to this case, the judges should be careful to ensure that the parties still have access to the courts. The SJC goes so far as to suggest that had the referral for parenting coordinators, and therefore arguably mediators, made while the complaint for contempt was pending and not in lieu of the hearing, may have been proper. Dispute resolution referrals may be appropriate pending the hearing in order to facilitate possible settlement agreements or parenting plans.

Accordingly, the SJC referred the case to the probate and family court to consider whether to promulgate a rule giving the proper guidance on a parenting coordinator appointment. Such a rule will help judges in the future make these appointments in a way that will continue to be beneficial to parents but also be compliant with the parties’ due process rights. This suggestion by the SJC looks a lot like the GAL appointment process with standards, licensing, training and a list of approved providers.