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

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.

The alleged failure of the mediator and the husband’s counsel to advise the husband that a court need not apply the C.S.S.A. formula to the husband’s entire agreed-upon income of $1,200,000.00 per year income is not a basis to set aside a divorce settlement agreement, or its $29,500.00 per month child support obligation. So held Westchester County Supreme Court Justice Lawrence H. Ecker in his January 16, 2014 opinion in A.B. v. Y.B.

The couple involved separated after 12 years of marriage. Following three years of mediation, the parties entered into an agreement that resolved issues of custody and access to the parties’ three children, maintenance, child support, and equitable distribution. The husband is a 50% equity partner in a brokerage firm. The wife is owner and operator of her own business.

Upholding the agreement, Justice Ecker took pains to quote several of its provisions. One acknowledged that the parties had waived the “compulsory financial disclosure” requirements of the Domestic Relations Law and court rules, and agreed not to exchange Net Worth Statements. Nonetheless, the parties represented to each other that each made a full and complete disclosure of assets, liabilities, income and expenses, and that they relied on the information provided.

The agreement recited the husband’s disclosure, to the best of his knowledge, of his gross personal 2010 income as approximately $156,427.00. The parties agreed to use the 2010 income because their 2011 income was not yet available. The Husband disclosed that in no event was his income from any and all sources more than $156,427.00 in said year.

Nonetheless, for purposes of the agreement, the parties agreed to use an imputed income of$1,200,000 in computing the child support calculation under the Child Support Standards Act.

The parties acknowledged that they reached their agreement with the aid of the mediator, but that the mediator provided no legal representation to either of the parties. Further, although “the mediator may have provided information or opinions concerning the state of the law generally, neither party has relied upon such information or opinions in executing this Agreement.”

The parties further represented that each had ample opportunity to obtain independent legal counsel, and counsel [apparently recommended by the mediator] for each spouse was named.

As to the basic child support obligation, the agreement provided it was agreed that the the husband’s would pay $29,500 per month [$354,000 per year] for 12 years, 5 months, subject to a cost of living increase biennially. The husband was further responsible for 100% of discretionary expenses and add-on expenses, including private school tuition for all three children, private college expenses, camp and summer programs, religion education expenses, Bar and Bat Mitzvah expenses, health insurance and unreimbursed medical expenses.

Continue Reading Claimed Ignorance of C.S.S.A. Treatment of Income Over Cap Not Basis to Set Aside Divorce Settlement Agreement

As noted in the previous blog, Gazzillo Ralph.jpgagreements which resolve marital rights and obligations are encouraged. They will be enforced absent demonstrable improprieties.

In his January 23, 2011 decision in Capone v. Capone (pdf), Suffolk County Supreme Court Justice Ralph T. Gazzillo granted summary judgment dismissing a wife’s action to rescind and declare null and void a November, 2008 Separation Agreement.

In January, 2010 the husband commenced an action for divorce based on the parties living separate and apart pursuant to that agreement for a period in excess of one year (“grounds” for divorce under Domestic Relations Law §170[6]). The wife responded by bringing her own action in February, 2011 attacking the agreement on the grounds that it was the result of overreaching, coercion, and undue influence. She also alleged that it was manifestly unfair, unjust, inequitable and unconscionable.

The husband moved for summary judgment dismissing the wife’s action. Justice Gazzillo noted that summary judgment is a drastic remedy, only to be granted in the absence of any triable issues of fact. Justice Gazzillo held that the wife failed to demonstrate that the agreement was unfair when made or that there was overreaching in its execution. Quoting the 1977 decision of the Court of Appeals in Christian v.Christian, 42 NY2d 63, 396 NYS2d 817, Justice Gazzillo stated:

Judicial review of separation agreements is to be exercised circumspectly, sparingly and with a persisting view to the encouragement of parties settling their own differences in connection with the negotiation of property settlement provisions.

Here, the parties’ Separation Agreement had been entered with the assistance of Divorce Mediation Professionals (Lenard Marlow, J.D.). The parties only entered their agreement following at least 10 conferences, letters between the parties and the mediator, revisions, a written suggestion by the mediator to the wife that she consult with her own attorney to discuss changes to the agreement, and the valuation of the husband’s pension.

Continue Reading Wife's Attack on 2-Year-Old Mediated Separation Agreement Summarily Dismissed

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.