Tom Griffiths, psychologist, cognitive scientist and Princeton professor, concludes his TED talk, 3 ways to make better decisions — by thinking like a computer, with the following lesson:

“You can’t control outcomes, just processes; and as long as you’ve used the best process, you’ve done the best that you can.”

Dr. Griffiths has researched the connections between natural and artificial intelligence to discover how people solve the challenging problems they encounter in everyday life. His 2016 book authored with Brian Christian, Algorithms to Live By, illustrates how the algorithms used by computers can inform human decision-making (and vice versa). The book was named one of the Amazon.com “Best Science Books of 2016” and appeared on Forbes’s “Must-read brain books of 2016” list as well as the MIT Technology Review’s “Best books of 2016” list.

In New York, most couples going through a divorce, although aware of litigation and mediation, do not know that they have a choice of a third structured process to unravel the marital relationship and transition the family through the divorce. Most divorcing couples don’t know that they have a chance to apply Griffiths’ lesson and select a process that can reduce the time, cost, anguish and damage that so often accompanies divorce litigation, yet address the shortcomings of mediation.

Continue Reading Divorcing Couples Can Learn a Lesson From Computer Algorithms

Jerilyn Klein Bier writes “How Advisors Help HNW [High Net Worth] Clients ‘Collaborate’ On Divorce” in the current issue of Financial Advisor, a monthly publication for financial planners, registered investment advisors and independent broker-dealers, She begins with a quote from Danny DeVito, portraying a divorce attorney in The War of the Roses, “When a couple starts keeping score, there is no winning, it’s only degrees of losing.”

Wealth managers “are having more success getting clients to settle their affairs amicably through collaborative divorces that enable splitting spouses to retain more of their wealth for themselves, their kids and their charities. Retaining wealth is particularly important for couples divorcing later in life with significant assets because there’s less time to rebuild wealth and finances before retirement.”

Ms. Bier reports that mediation and Collaborative Divorce are better divorce forums than the courts, providing the family the opportunity for holistic planning and a variety of flexible financial solutions to maintain family wealth.

She tells of Kim Kenawell-Hoffecker, a Pennsylvania Certified Divorce Financial Analyst (CDFA), who works several ways on collaborative divorces. She serves as a financial neutral on collaborative divorce teams for couples who are not clients. Ms. Kenawell-Hoffecker also takes on divorcing or divorced clients to manage their wealth.

But never both. The rules of the Collaborative Process assure the couple that financial and mental health experts will be neutral, in part, by prohibiting the expert from taking on a spouse as a client following the divorce. The Process demands there be no incentive for a neutral expert to favor one side.

Conversely, financial advisors and therapists who represent one or both spouses can be confident referring their clients to the Collaborative Process, because the experts retained to be neutral during the divorce will not “steal” their clients after the divorce.

Ms. Kenawell-Hoffecker also reminds dueling spouses that with the hourly rates being charged for legal fees, that it is easy to quickly blow past the cost of the actual assets the couple is fighting over. Additionally, “the divorce is a tough enough decision to come to,” she says, “without adding salt to the wound.”

A Collaborative Divorce can avoid that, while expanding available solutions to maximize the goals of the couple.

Lying childIn his February, 2016 TED talk, developmental researcher Kang Lee tells us that adults cannot tell whether children are lying.

As part of his research, Dr. Lee asked children to guess the numbers on two face-down cards. The children were told that if could do that, they would get a big prize. In the middle of the game with a child, the monitor leaves the room, telling the child not to peek at the cards. Hidden cameras record the actions.

More than 90 percent of children will peek as soon as the proctor leaves the room. The more important question for Dr. Lee was when the proctor returned, would the child confess or lie about cheating? By age 4 and up, at least 80% of the children lie.

However, Dr. Lee also wanted to know if we, adults, can tell when a child is lying or telling the truth. Dr. Lee played videos of these types of games for many, many adults from all walks of life. In half of the videos, the children lied. In the other half of the videos, the children told the truth. Recognizing that if the adults guessed randomly, there would be a 50% chance of them being right, an adult whose accuracy was around 50% was a terrible detector of children’s lies.

Spoiler Alert (although the title of this blog post gives it away): Please watch the video before proceeding.

Continue Reading If The Pros Can't Tell When Children Lie, How Can Courts Decide Custody?

Children in families without fathers in the home are not doomed to failure, or anything close to that. So concludes an article in Scientific American Mind, “Where’s Dad,” by Paul Raeburn of the Knight Science Journalism Tracker, and author of Do Fathers Matter?: What Science Is Telling Us About the Parent We’ve Overlooked.

However, as the article also noted, “The discovery of the father is one of the most important developments in the study of children and families. Our failure to address the question of fathers’ value is more than simply a matter of academic bickering.”

Fathers make unique contributions to their children. “Fatherhood is about helping children become happy and healthy adults, at ease in the world, and prepared to become fathers (or mothers) themselves.”

 

Fathers are disappearing: fewer dads are participating in the lives of their children now than at any time since the U.S. began keeping records. This shift matters because the effects of a missing father can be profound . . . .

Mothers today continue to perform the majority of primary caregiving tasks (feeding, bathing, comforting) notes science journalist Roni Jacobsonin her Scientific American Mind article, “Build Your Own Family.” Fathers tend to take part in supplementary activities, such as play, which matters less to survival than to cognitive development. For that, the quality of a father’s involvement appears to matter more than the quantity.

Continue Reading Keeping Dads Around After Divorce

In this week’s Ted Talk, Ruth Chang discusses hard choices. Soon after finishing Harvard Law School, Dr. Chang regretted her decision and switched paths. She received her doctorate in philosophy at Oxford University, and is now a professor at Rutgers focused on choice, freedom, value and action.

For Dr. Chang, “understanding hard choices uncovers a hidden power each of us possesses.” It would seem that the full use of that power is vital when dealing with divorce.

In any easy choice, one alternative is better than the other. In a hard choice, one alternative is better in some ways, the other alternative is better in other ways, and neither is better than the other overall.

“We also shouldn’t think that hard choices are hard because we are stupid.” Choosing after college between law school and philosophy, Dr. Chang remembers thinking:

If only I knew what my life in each career would be like. If only God or Netflix would send me a DVD of my two possible future careers, I’d be set. I’d compare them side by side, I’d see that one was better, and the choice would be easy.

At the time, Dr. Chang “did what many of us do in hard choices: I took the safest option.” But she learned being a lawyer was not who she was. It’s a mistake to think that in hard choices, one alternative really is better than the other, but we’re too stupid to know which, and since we don’t know which, we might as well take the least risky option.” Even with full information, a choice can still be hard.

For Dr. Chang, making hard choices may best be solved by our  “normative powers,” our “power to create reasons.” You create the reasons to pursue your choices.

We get to exercise our normative power, the power to create reasons for yourself, to make yourself into the kind of person for whom [your decision is the right choice].

Making the hard choice is not dictated by reasons given to us. “Rather, it’s supported by reasons created by us. . . . You might say that we become the authors of our own lives.”

In almost all instances, making the decision to end a marriage is a hard choice. But then making the decision what to do when your spouse tells you, “I want a divorce” is a hard choice as well. You are not handed the DVDs of your alternative lives if you stay married or get divorced; of the alternatives of seeking to win the spouse back, or get revenge, or move on.

Continue Reading Divorce: Hard Choices

Increasingly, courts have closely examined the specific decision-making roles of each parent, whether or not the parties share joint custody or one parent is awarded sole custody.

The general rule is that joint or shared custody, requiring both parents to agree on decisions, is inappropriate where parents have demonstrated an inability or unwillingness to cooperate in making decisions concerning their children.

In its April 23, 2014 decision in Thorpe v. Hamoet, the Second Department affirmed the determination of Kings County Family Court Judge Anthony Cannataro to award a mother sole medical and educational decision-making authority, and to otherwise award both parents joint decision-making authority with respect to all other custodial matters outside the spheres of medical and educational needs.

Although it was evident to the appellate court that there was some antagonism between the parties, it was also apparent that both parties generally behaved appropriately with their child and in a relatively civilized fashion toward each other. Furthermore, there was no evidence that the parents were so hostile or antagonistic toward each other that they would be unable to put aside their differences for the good of the child.

Sometimes defining sole or joint custody differently, courts have found ways to erode all-or-nothing awards even when parents are antagonistic towards each other. Judges seem comfortable splitting decision-making into distinct areas; giving parents separate “zones” or “spheres” of responsibility.

Thus, in addition to education and medical areas, Courts have granted one parent decision-making authority in the spheres of religion, hygiene, mental health, dentistry, summer activities, extra-curricular activities, weekend activities, social events and finances.

In this fashion, both parents may remain more actively involved in their children’s lives. Still further, if both parents must live within this balance of power, détente between the parents is encouraged. Indeed (continuing the political metaphor), each parent may develop a policy of openness (glasnost), promoting consultation, compromise, and more meaningful exchange of information.

In all events, it would seem that the parents, themselves, are in the best position to allocate the particular subjects as to which there will be required consultation, or required agreement, or specifically-allocated final authority.

Litigation would not seem the best-suited forum for reaching an agreement on these matters. Alternate Dispute Resolution (ADR), whether through mediation or the Collaborative Divorce Process, seems a far better choice.

In Thorpe, Meredith A. Lusthaus, Coffinas & Lusthaus, P.C., of Brooklyn, represented the mother. Francine Shraga, of Brooklyn, represented the father.

Collaborative Practice Logo.jpgMonica and Mitchell Mandell were married in 1998. They have three children. After Mr. Mandell moved out last year, his wife retained attorney Ellen Jancko-Baken to represent her. Ms. Mandell was interested in pursuing the “Collaborative Law” process.

After three perhaps “preliminary” meetings, the contemplated Collaborative Process fell apart. Ms. Mandell used her same attorney to commence a divorce action. Her husband, then, looked to disqualify his wife’s lawyer, claiming such representation was barred by the rules of Collaborative practice.

As noted by Westchester Supreme Court Justice Alan D. Scheinkman in his June 28, 2012 decision in Mandell v. Mandell, the Collaborative Process is a form of dispute resolution in which the parties retain counsel specially trained in collaborative law and enter into a contract to negotiate a settlement without involving the Court.

As Justice Scheinkman noted, one of the principal features of the Collaborative Process is that, if the matter is not resolved, the attorneys who represented the parties in the unsuccessful effort to reach a settlement may not thereafter represent the parties in contested litigation. Among other benefits, this hallmark of the process:

  • eliminates pre-litigation posturing;
  • provides clients with a greater degree of influence in candid negotiations in which the clients participate directly;
  • motivates the parties to continue working toward a mutually agreeable resolutiont due to the prospective expense of having to hire new lawyers if the matter has to go to court;
  • makes it clear that counsel are committing themselves to the process of dispute resolution by having counsel agree to absent themselves from any future litigation;
  • gives counsel an economic incentive to stick with the process;
  • discourages counsel from abandoning the process since their role, and their fees, would end; and
  • conversely, provides counsel with no personal monetary incentive to encourage litigation.

In light of his wife’s interest in using the Collaborative Process, the husband retained Neil Kozek. Both Ms. Jancko-Baken and Mr. Kozek are members of the International and New York Associations of Collaborative Professionals.

Continue Reading Counsel Not Disqualified From Litigation Where Collaborative Divorce Participation Agreement Not Signed

Connolly Francesca.jpgThere are may circumstances which courts recognize warrant revisiting a divorce resolution. On the other hand, ongoing litigation is often unfounded and a result of the anger, bitterness, sadness, desire for revenge, etc.

In her February 3, 2012 decision in D.W. v. R.W., Westchester County Supreme Court Justice Francesca E. Connolly imposed $17,500.00 in sanctions and another $42,707.29 in counsel fees against a pro se (self-represented) ex-wife who refused to abide by repeated rulings requiring the ex-wife to discontinue her attacks on a divorce settlement reached over seven years earlier.

Following that settlement, the ex-wife had engaged in extensive post-judgment litigation to vacate the underlying agreement on the grounds that she lacked the mental capacity to understand and agree, and that the agreement was unfair, unconscionable, the product of overreaching, fraud, or some variation thereof. Her numerous attempts to challenge the stipulation were considered and rejected by several lower and appellate courts.

Nevertheless, in October, 2010, the ex-wife commenced another action against 23 defendants, including her ex-husband, her children, her former in-laws, her ex-husband’s former attorneys, and other entities. In an 81-page complaint, she claimed breach of contract and fraud for the failure to disclose various assets during the divorce proceedings. She claimed to have discovered documents showing the fraud by going through her ex-husband’s garbage cans outside his residence.

Continue Reading Sanctions and Fees Totaling $60,000 Imposed Against Ex-Wife; Divorce Litigation Often Keeps Going, and Going, and Going . . .

We are not moving cropped.jpg

The May 5, 2011 decision of the Appellate Division Third Department in Munson v. Fanning, highlights the need for difficult discussions and prioritization before taking life-altering steps. It is also another call for the expanded use of the Collaborative Law Process.

In this case, the parties’ 12-year old daughter had been born after her parents had separated and divorced. The mother sought and permission to move with the child to California to join her new husband who had taken a new job. Saratoga Family Court Judge Courtenay W. Hall denied that relief, but revised the father’s visitation schedule to allow the mother to join her husband for extended periods during school recesses.

The appellate court reviewed whether the mother met her burden of proving by a preponderance of the credible evidence that the relocation was in the child’s best interests. Quoting the 1996 landmark decision of the Court of Appeals in Tropea v. Tropea, 87 N.Y.2d 727, 642 N.Y.S.2d 575, the court stated:

The factors to be considered in making such a determination include “each parent’s reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent, the degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements.”

The court recognized the healthy relationship the daughter developed the mother’s new husband, as well as her other children, all of whom were to reside in California. The step-father’s new job in California would allow her to stay at home and raise her children. The attorney for the daughter (formerly called the Law Guardian) supported the relocation.

Continue Reading Relocation to California Denied Mother with 12-year Old Daughter

mediation.jpgCommencing March 14, 2011, parties to a Nassau County divorce action may be required to participate in a mediation session under a program initiated by Justice Robert A. Ross, Supervising Judge of the Matrimonial Parts. After a preliminary conference, the judge assigned to the case will decide whether the case is suitable for mediation. The parties will be allowed to mediate some issues and litigate others.

The introductory session will be free, using one of the more than 40 mediators who have been enlisted to participate in the “Matrimonial Alternative Dispute Resolution Program.” If the parties decide to continue, they will pay for further sessions.

The NYS Unified Court System has been committed to promoting the appropriate use of mediation and other forms of alternative dispute resolution (ADR) as a means of resolving disputes and conflicts peacefully. However, one may question whether mandated matrimonial mediation will be effective.

In mediation, a neutral person helps the parties try to reach a mutually acceptable resolution of the dispute. The mediator does not decide the case, but helps the parties communicate so they can try to settle the dispute themselves.

Mediation may be inappropriate if a party has a significant advantage in power or control over the other. Moreover, it may be said that any one of at least five people may prevent a piece of divorce litigation from being settled early. Of course, the expectations, needs or emotions of either of the parties (or, indeed, the children) may interfere with a reasonable exchange of ideas. Early reasonable compromise may also be inconsistent with the goals or style of one of the litigating attorneys. The judge, him/herself (or the history or prior rulings in the case) may have placed obstacles to settlement which need to be overcome. Finally, the friends or family of the parties, based on their own need for vengeance or their “knowledge” of the law, may spur the parties toward battle.

Mediation lacks some of the substantive tools of other forms of ADR. For example, Nassau County has made use of Early Neutral Evaluation panels. ENE was designed to provide parties with an early and frank evaluation of the merits of a case by an objective observer. It can provide a “reality check” for clients and lawyers, identifying and clarifying the central issues in dispute, assisting with discovery and motion planning or with an informal exchange of key information, and, if possible, facilitating settlement discussions, when requested by the parties. In practice, however, the ENE process was used late in the litigation, often when the case had already been certified ready for trial.

With arbitration, the neutral person hears arguments and evidence from each side and then decides the outcome. Arbitration is less formal than a trial and the rules of evidence are often relaxed. In binding arbitration, parties agree to accept the arbitrator’s decision as final, and there is generally no right to appeal. In non-binding arbitration, the parties may request a trial if they do not accept the arbitrator’s decision.

Much newer to New York, Collaborative Law is a process practically, financially and emotionally committed to a negotiated settlement without litigation. In Collaborative Law, each party is represented by a specially-trained lawyer. The parties sit together with their lawyers in face-to-face meetings identifying and resolving the issues. With the “interdisciplinary model,” a mental health professional is used to identify emotional issues which may be blocking the process. A commitment to financial “transparency” and the use of neutral financial specialists can greatly accelerate the exchange of information and keep matters private. If either spouse decides to go to court to litigate, both parties must hire new lawyers and other retained professionals. This motivates everyone involved to continue working toward a mutually agreeable resolution.

It is regrettable that mediation is now being mandated in large measure because the resources of the judicial system cannot properly handle the case load (1100 to 1200 cases in Nassau County annually). Moreover, mediation remains the form of ADR with the least teeth. Thus, it will only become a powerful tool if a speedy judicial resolution is the alternative.

One program to recognize this is the Martin P. Violante Alternative Dispute Resolution (“ADR”) Program for the Eighth Judicial District (Western New York). Section 6.2 of their Protocols (pdf) provides that referrasl to ADR in contested matrimonial and Family Court cases will not stay the Court proceeding. OCA policy in family cases recognizes the special need for prompt action. As a general rule, full discovery, emergency and pendente lite relief, family dynamics, and the needs of children require ongoing access to the Court. However, if the parties agree that additional time is required to fully explore resolution through ADR, they may request an adjournment of a court date from the Assigned Judge, which may be granted sparingly.

The concept that ADR is needed because the judicial system doesn’t work is offensive. However, each of the ADR forums does have a lot to offer. I fear mandating a single mediation session, though, will be of questionable value.