Bar News - October 19, 2012
Alternative Dispute Resolution: Three Marital Masters’ Transition from Adjudication to Mediation
By: Diane M. Gaspar
With 73-plus years of combined experience on the bench, three of New Hampshire’s former marital masters have transitioned seamlessly from adjudication to mediation.
Harriet Fishman, Deborah Rein and Alice Love agree that their private practice endeavors as mediators have been gratifying, with each putting her own interpretation of the mediation process into practice.
For Alice Love, acting as mediator allows her to delve into what’s important to each party and why. Since she began her practice in June 2012, Love says she has discovered that the mediation process allows her greater flexibility to help the parties explore various scenarios for resolution. She enjoys the freedom to empathize with the parties so they can speak openly to her as the mediator and the luxury of time that the process allows.
Love feels the skills she developed on the bench – to listen, remain neutral, and fashion a decision based on a unique set of facts – has enabled her to go beyond traditional mediation and actually facilitate an agreement. Love was on the bench for more than 28 years, serving throughout the state. She notes that years ago, when the docket was less crowded, it was a common practice to have counsel in chambers at the pretrial and hold a "mini-mediation" or neutral evaluation session. Now with longer dockets, less time for each case and more self-represented litigants, that practice has vanished. However, those earlier experiences prepared her for her current role as an evaluator who can move a case toward settlement when there is gridlock in the mediation process.
Deborah Rein refers to her practice as "facilitated settlement negotiations." When she began to consider her post-court career, she realized she did not want to be a traditional mediator. Rein, who served as a master for nearly 24 years in every county, was one of the founding members of what is now the Family Mediation Certification Board. During her 18-year tenure on that board, her fellow board members were "the most accomplished professional mediators" in the state. She garnered her understanding of mediation from her colleagues, numerous trainings and readings. She concluded that as a judicial officer, she was more suited to conciliation. "My goal is to empower the couple to make their own decisions, based on their own needs and their family’s circumstances. But I do think that lawyers hire me to obtain some reality-based suggestions that might assist their clients in weighing the options available to them."
Harriet Fishman, who left the bench after 21 years, began her practice in 2007. She was told early on to "ditch the robe persona." "How accurate she was," notes Fishman of the attorney who offered the unsolicited advice. "I just jumped in" to mediation, says Fishman, "and was lucky enough to work with attorneys who helped me to succeed." She says she "loves helping people arrive at a final resolution through a non-adversarial process." Challenges arise, she notes, when one side does not have the real desire to compromise. "And if we do not resolve the case, the wait and the financial impact, for the family can be devastating."
The former masters offer a few practice pointers. Love comments that counsel should go to mediation with the same preparedness as a hearing. Attorneys should pay particular attention to the accuracy and completeness of the financial affidavit because it may have unforeseen consequences should the settlement be challenged. Fishman adds that if the case has been filed and orders issued, she likes to see the orders. She finds that proposed temporary or final orders are also helpful. Rein says that her most successful mediations occur when the parties are prepared to negotiate and compromise. "If the parties or lawyers need to adjourn to gather more information… momentum is lost." The case may still settle, she says, but it’s harder and more expensive for the client."
All three decline cases when both sides are self-represented. As she is the most recently retired, Love raises concerns that self-represented parties may not understand that the process might benefit from a combination of mediation, facilitation, and neutral evaluation. Rein notes that she has a "facilitative" practice geared toward settlement, not the type of practice where the parties are sent off to do paperwork and return for multiple sessions.
Rein and Love would consider cases where one side is pro se. Rein notes that she encourages the unrepresented party to seek professional advice to help prepare for the mediation as well as review the agreement.
Journeying from the bench to the conference table, Love, Fishman and Rein expressed appreciation for the family law practitioners with whom they have worked. They note that the attorneys they have worked with are generally well prepared, come to the sessions ready to negotiate and compromise, and are ready to reach a conclusion. Speaking generally of the marital bar in NH, Fishman observes: "You are patient, yet realistic. You care about your work and your clients. I am proud to be a member of this Bar."
Diane M. Gaspar is associated with Howie Law Office in Salem, where she continues her 24-year career dedicated to family law. She is a certified family law mediator working primarily with pro se couples and has served as a GAL for 24 years.