^y\.\o^; Ac bk&. UMASS/AMHERST ?.,..,„ 315Dbb 0271 bMMD 7 ACHIEVING EQUITY Recommendations for Dispute Intervention Practice in the Probate & Family Court 1995 Prepared By: Issued By: Committee for Gender Equality Gender Equality Advisory Board Supreme Judicial Court The Trial Court of Massachusetts Achieving Equity Recommendations for Dispute Intervention Practice in the Probate & Family Court 1995 Prepared By: Issued By: Committee for Gender Equality Gender Equality Advisory Board Supreme Judicial Court The Trial Court of Massachusetts Honorable Ruth Abrams, Chair Honorable Linda Giles, Chair I. Task Force on Mediation in the Probate Courts, Committee for Gender Equality: Attorney Cynthia Bauman, Chair Senior Associate Gladys E. Maged, Staff Copyright 1995 bytheAdministrative Office oftheTrial Court Forcopies: Gender EqualityAdvisory Board, AOTC, Two Center Plaza, Boston, MA 02108 Digitized by the Internet Archive 2014 in https://archive.org/details/achievingequityrOOmass Membersofthe CommitteeforGender Equality Chair: The Honorable Ruth Abrams I. SupremeJudicial Court HonorableCharles M. Grabau Honorable Elizabeth A. Porada Attorney Brenda Kronberg SuperiorCourt Department Appeals Court Mass. BlackWomen Attorneys Honorable Katherine Liacos Izzo Honorable SantoJ. Ruma Attorney Margaret Marshall SuperiorCourt Department DistrictCourt Department Boston BarAssociation HonorableSally Kelly Honorable David Sacks Attorney Barbara Senecal Boston Municipal CourtDept Probate and FamilyCourtDept. MassachusettsAssociation of Women Lawyers Honorable Bonnie H. MacLeod- Attorney KayH. Hodge Griffin Massachusetts BarAssociation Maria Z. Mossaides, Ex Officio DistrictCourt Department SupremeJudicial Court Attorney Karen J. Kepler Honorable Mary McCauleyManzi Women's BarAssociation Lynne Gavin Reed, Ex Officio Probateand FamilyCourtDept Admin. Office ofthe Trial Court Members ofthe Gender EqualityAdvisory Board HonoraryChair: Chair: Vice-Chair: The Honorable Ruth I. Abrams Honorable Linda E. Giles Honorable Karyn F. Scheier SupremeJudicial Court Boston Municipal Court Land Court Department Honorable Margot Botsford Chris L. Butler, Esq. Professor Ruth A. Howe SuperiorCourt Department Butler& Monks, Cambridge Boston College Law School Honorable Lillian Miranda Rosemary Carr MarnieWarner JuvenileCourt Department FirstAssistantClerk Magistrate Admin. Office ofthe Trial Court Boston Municipal Court Honorable David G. Sacks AliceZaft, Esq. Probateand FamilyCourtDept. Henry Clay, Esq. Cooley Shrair, Springfield SupremeJudicial Court Honorable SarkisTeshoian LynneGavin Reed, ExOfficio DistrictCourtDepartment Anne I. Craig, Esq. Admin. Office ofthe Trial Court Immulogic, Waltham Eve Blakeslee Maria Z. Mossaides, Ex Officio FirstAssistantClerk Professor Kimberly Hawkins SupremeJuducial Court Franklin Superior Court Northeastern University Membersofthe Task Forceon Mediation in the Probate Court Chair: AttorneyCynthia Bauman Hale & Dorr Legal Services Center- Jamaica Plain ChiefJustice MaryC. Fitzpatnck AttorneyJacquelynneJ. Bowman Peggy L. Gassman, Asst ChiefP.O. Probate and FamilyCourtDept. Mass. Law Reform Institute- Boston Probate and FamilyCourt Dept- Dedham Honorable Nancy M. Gould AttorneyRuth R. Budd Probate and FamilyCourtDept. Hemenway and Barnes- Boston AttorneySusan M. Jeghelian Mass. Off. Dispute Resol. - Boston Honorable MaryM. Manzi AttorneyChris Butler Probate and FamilyCourtDept. Women's LawCollective-Cambridge Attorney Michael Leshin Hemenway and Barnes - Boston AttorneyPamela B. Bankert Albie M. Davis, Dir. ofMediation Lawson, Weitzen, Bankert- Wellfleet DistrictCourt Department- Salem John E. McNichols, ChiefP.O. Probate and Family Court Dept Attorney Sharon Blocker, DOR AttorneyAndree Gagnon Boston Child Support - Jamaica Plain Boston Attorney Diane Neumann AnthonySicuso, DeputyCommissr. AttorneyJeffreyL. Wolf Divorce Mediat. Servs. -Framingham Commissionerof Probation - Boston CambridgeportProblem Center Cambridge Sophia C. O'Brien, ChiefP.O. RuthWhitney, LICSW CommissionerofProbation - Boston Arlington AttorneyAmyYanni West Mass. Legal Services-Pittsfield Richard E. O'Neil, Asst ChiefP.O. Probate and FamilyCt. Dept-Boston Members ofthe Review Committee Honorable Sean M. Dunphy Dee Crawford, Probation Officer Attorney Paul M. Kane Probate and FamilyCourt Dept. Probateand FamilyCourtDept McGrath & Kane- Boston Salem HonorableChristina Harms Attorney HaskellA. Kassler Probate and FamilyCourt Dept. AttorneyCynthia S. Creem Kassler& Feuer- Boston Stone, Stone& Creem - Boston Honorable Sheila E. McGovern Dr. RobertKinscherff Probate and FamilyCourt Dept. CarlJ. Cruz, Asst. ChiefP.O. Massachusetts General Hospital Probateand FamilyCourt Dept. Children and The Law- Boston HonorableArline Rotman NewBedford Probate and FamilyCourt Dept. AttorneyDavid Matz AttorneyBarbara Diamond Grad. Prog, in Dispute Resolution HonorableCatherine Sabartis SupremeJudicial Court- Boston UniversityofMassachusetts- Boston Probate and FamilyCourt Dept. Marie Duffy, Asst. ChiefP.O. AttorneyJames V. Menno Honorable RobertTerry Probateand FamilyCourt Dept. Bryant& Menno -Walpole Probateand FamilyCourt Dept. Salem Attorney MaryA. Socha AttorneyRoberta Benjamin Attorney Linda S. Fidnick WestSpringfield Benjamin & Benson - Cambridge Burres, Fidnick & Booth -Amherst SuzanneStacy, Probation Officer Attorney Mary Rudolph Black AttorneyPatricia Findlen Probateand FamilyCourtDept Black & Pontisakos- Gloucester PioneerValleyLegalAssociates Salem Springfield Sheila Brown, Asst. ChiefP.O. AttorneyCynthia M. Sullivan Probateand FamilyCourt Dept. AttorneyJohn Fiske Ardiff& Morse- Danvers Cambridge Healy, Fiske &Woodbury Cambridge Joseph J. Toole, ChiefP.O. Thomas F. Carr, M.A., LMFT Probateand FamilyCourt Dept. Indep. CourtInvestigator- Natick Attorney E. Oliver Fowlkes Springfield Rollins, Fowlkes & Jacoby & Kaplan AttorneyJane E. Carvalho Boston Attorney Donald G. Tye New Bedford Peckham, Lobel, Casey, Prince AttorneyMaryEllen Howard & Tye- Boston Attorney Bruce D. Clarkin Florence LaCroix& Fuller- Springfield Attorney NancyWoolley AttorneyIsabellaJancourtz Dover Attorney BarryConnelly Weston Connelly& Norton - Boston PrincipleInvestigator: Susan Dickinson Advisor: LauraWalters, PH D CommitteeStaff: Lois Frankel, Patricia Teixeira Interns: Stephanie Castro, JoyGoldberg, Elizabeth Sabiiia Special Thanks: Boston BarAssociation Massachusetts BarAssociation Anthony R. Nesi, CourtAdministrator, Probateand FamilyCourtDept. Mary Ferriter, AdministrativeAttorney, Probateand FamilyCourt Dept TheChairthanksthe Task Forceand ReviewBoard memberswhoseactive involvementand participation producedthis Report alsoAndreeGagnon, BethanySpalding and Sung Sim for high qualitywriting and editing on innumerabledrafts; Dr. LauraWaltersforinvaluaWe guidanceinthe research; colleagues atthe Hale and Dorr Legal ServicesCenterforunstinting supportand encouragementfor my"communitywork"; thestaffatthe Trial Courtandthe CommitteeforGenderEquality; and most ofall Gladys Magedwhosevision, skill and grace arethe heartand soul ofalltheworkwedidtogether. Table of Contents INTRODUCTION EVOLVING USE OF PROBATION OFFICERS TO RESOLVE DISPUTES 1 I. History of the Use of Probation Officers in Probate and Family Court 1 Statutory Authority and Current Applicable Rules and Standards 2 II. III. Description of Current Family Service Office Practice 4 RECOMMENDATIONS TO IMPROVE COURT ORDERED DISPUTE INTERVENTION 8 Summary 8 I. Recommendations 10 II. A) Rename the Process B) Delineate and Clarify the Function of Family Service Officers C) Establish Procedures and Protocols to Prevent Potential Bias D) Provide Litigant Education and Ongoing Evaluation of Services E) Increase Training of Family Service Officers, Judges and Other Court Personnel CONSIDERATIONS FOR PRACTICE OF FAMILY LAW IN DISPUTE INTERVENTION 23 Summary 23 I. Considerations 23 II. A) Cases Involving Violence B) Cases Involving Care and Custody of Children C) Paternity Actions D) Financial Issues Including Financial Statements, Alimony and Division of Assets and Child Support THE FUTURE OF FAMILY SERVICE IN THE PROBATE AND FAMILY COURT 41 APPENDICES INTRODUCTION During the next decade, most litigants who file family-related cases in the Probate and Family Court will utilize the services of the family service office, particularly for those cases which involve children. Many of those who use or benefit from the services view the family service office as crucial to the court's functioning effectively. Though many used similar words, one Probate and Family Court judge interviewed by the Task Force summed up as follows: "If the court had to hear all pro se litigants or counsel on every issue, the court would be completely in a state of gridlock."1 Participants in the Massachusetts Gender Bias Study expressed concern about this form of alternative dispute resolution in family matters - women tend to be disad- vantaged by the institutionalization of a power imbalance between the parties when cases are mediated by the family service office.2 This report summarizes three years of research and discussion, and enlarges upon the original recommendations concerning mediation set forth in the 1989 Gender Bias Study.3 The first section of this report explains the history and authority for family service intervention, and provides the context for the recommendations contained in the second section.4 This first section also describes the current practice in family service offices. The Probate and Family Court Department refers some cases for mediation outside the family service office, such as to the Middlesex Multi-Door Probate and Family Court Mediation Project. However, at present, the great majority of cases are handled by family service. The second section contains recommendations for reforming intervention services. suggests ways the services can be renamed, divided, labeled, and defined It so that the purpose of each intervention is clear. It also proposes educating litigants so that they will know what to expect from family service intervention. Procedural mechanisms are proposed which are designed to ensure that dispute intervention is a fair and beneficial process for everyone who uses it and that it does not further disempower the most vulnerable litigants, who are usually women. The next section proposes considerations for reform in substantive areas of family law in which gender bias can be identified and addressed in family service practice. The report concludes with a look at long term goals, including suggestions for additional research and reform in areas less susceptible to immediate change. The report's appendices include a glossary, an explanation of methodology, proposed model practice tools and information about probation officers practicing in family service and about cases currently referred to family service. i Achieving Equity The Task Force on the Role of Mediation in the Probate Court studied dispute intervention services available in the Probate and Family Court and surveyed those engaged in the practice in and outside the court system. The Task Force was comprised ofjudges, attorneys, probation officers (family service officers), litigants, mediators and others with experience in the Probate and Family Court and with mediation as practiced in the courts and in private settings. The Task Force utilized both a working group and a larger review group to encourage serious consideration of these issues. Some areas provoked intense debate. Task Force members offer recommendations only in those areas in which they were able to reach consensus through a process of discussion and compromise. Particularly in substantive legal areas, the Task Force suggests considerations and encourages further discussion. The Task Force on the Role of Mediation in the Probate Court has no direct authority to implement recommendations and relies on those involved in developing this report, as well as others acting as individuals and members of groups, to build on these ideas. The family service office is an evolving adjunct to the litigation process and it deserves continued attention, evaluation and increased resources to continue improving the quality of service delivery and reduce the opportunity for gender bias. ii