Mediation Meets the Law

What is "Elder Mediation" (a.k.a. "adult family mediation")?

2010-05-12T11:38:00-07:00

By: J. Bernstein What is Elder Mediation you ask? I know, I know, it sounds like someone is brought in to act as a fight referee in a nursing home. Can't you just see me now...running into the middle of two or three senior citizens who are wielding canes as swords? The truth is that "elder mediation" is used because nobody is able to come up with a better term. The goal of elder mediation is to allow families to come together with a third party neutral and attempt to come to an agreement as to how to care for an elderly relative. Hopefully, through mediation family members and other interested parties can come to an agreement without having to go through the painful process of going to court.

Unfortunately the need for families to come together and make decisions about the care of an older relative often comes when the elder is physically and/or mentally ill. If previous plans are not in place (ex: power of attorney or a living will) relatives are faced with many tough decisions. The issues that families often confront are: whether to care for a relative at home or place them in an assisted living situation; who will manage the elder's finances; who will pay for the elder's care; whether property owned by the elder should be sold or passed to another family member; and what type of care and life saving measures are desired for the elder?

All of the issues confronting family and friends are subjects replete with emotion and history. They gnaw at people and lead them to act in ways even they do not expect. Unfortunately, years of these emotions build up and seem to come to a head when decisions need to be made. These emotions often lead to anger and resentment between family members and arguments over the care of their relative. Bringing a mediator into the process as early as possible may assist to quell some of the emotions and arguments or allow you to feel the freedom to express emotions and desires not yet revealed. The mediation process allows family members to make agreements regarding their relative without court intervention and can lead to settling court disputes without the interference of a judge. Mediation also affords people the opportunity to preserve relationships with each other because it is not adversarial like going to court.

Making life decisions about an aging relative is often heartbreaking. If you are confronted with these issues, just remember that the mediation process can assist family and friends in coming to an agreement about the care of their loved one.

Your Tax Refund and Personal Bankruptcy

2010-02-25T07:57:00-08:00

It's tax season and a question asked by many people is: "Do I need to report my tax refund?" The short answer is yes, your tax refund is part of the bankruptcy estate. However, you and/or your attorney may be able to use an exemption to allow you to keep all (or at least a potion) of your refund. Here's my little disclaimer before you read the rest of this blog...every case is different and every state is different. What's in this article is a general analysis under the federal code.

I guess it makes sense to explain and define the term "bankruptcy estate." I'll use Chapter 7 personal bankruptcy as an example. Under Chapter 7 all property and assets owned by the person filing bankruptcy (the debtor) are put into a big 'ole pot. This pot is called the bankruptcy estate. The technical definitions and requirements are found in the United States Code at 11 U.S.C. 541. This estate is then administered by a bankruptcy trustee whose job it is to liquidate any assets and administer payments to creditors. The point here is that your tax refunds are considered an asset and must be reported as part of your bankruptcy petition. But, as always, depending on the circumstances of each case you may have the ability to retain part of your refund.

After reporting the tax refund as an asset (along with all other assets) the bankruptcy code allows for certain exemptions (meaning you may keep some equity). When filing for bankruptcy you may choose either the federal exemptions (found at 11 U.S.C. 522(d)) or the state exemption/other federal exemption scheme. Here, I am going to explain how it is possible to use the exemptions found at 11 U.S.C. 522(d) in order to retain all or part of a tax refund. The code enumerates twelve categories of exemptions, unfortunately none of them say "tax refund." However, you may be able to exempt your tax refund under 11 U.S.C 522 (d)(5) which is also known in the biz as the "wild card" exemption.

The wild card exemption allows a debtor to exempt up to $1,075 an any property (the amount of this and all other exemptions changes every three years and is scheduled to change again this coming April). So, you can choose to exempt up to $1,075 of your tax refund under this subsection. Additionally, 11 U.S.C. 522(d)(5) allows the debtor to use up to $10,125 of the unused portion of their homestead exemption (11 U.S.C. (d)(1)). The homestead exemption is just what it sounds like. It lets the debtor exempt up to ($20,200) of equity in the property that the debtor uses as a residence. So, if you have money left over from subsection (d)(1) you can also use that to exempt the tax refund.

Like I've said, exempting a tax refund may not work in every case, but it's something to keep in mind. I guess the moral of the story is this...don't forget to report your tax refund to your attorney (and to the court). Also, remember to plan your exemptions accordingly.

Rock Poster Art, Artists and the Law: One Lawyer's Journey into her Brother's Comic Book Life

2009-11-12T10:40:00-08:00

By: J. Bernstein

Being the little sister of a comic book geek (I mean artist) constantly brings me to the most interesting places to meet people that I would never normally have the chance to know. Most recently, I had the pleasure of attending the Royal Flush art, film and rock & roll festival in NYC where my brother launched the newest installment of Royal Flush Magazine. At the festival I had the pleasure of viewing a fascinating screening of American Artifact, a documentary about rock poster artists, directed by Merle Becker. During this documentary I learned about the history and emergence of rock poster art the influence of this art on American society (and society's influence on the art) and the contemporary metamorphosis of the art. Rock poster art is becoming somewhat of a viable business now and older creations have become collectors pieces. So what does that bring with it? You guessed it, a host of legal issues. Shockingly, these legal issues are where I automatically focused my attention.

That's right, law school and layering have brainwashed me to see the legal issues surrounding every situation. So, I guess this post is more of a caution to my beloved illustrators and artists of all types...watch your butts (and CYA). Your talents have brought you to a place where you are now on the radar of main stream media, mainstream bands and more notably mainstream record labels. AND YOU ARE ON THE RADAR OF THEIR ATTORNEYS.

Your artwork began in its purest form. You took the music you loved and created visual masterpieces out of the songs you heard. You made these posters to promote the bands you admired and to encourage others to appreciate the music you adored. You created them by hand, in your bedroom, in your garage, in a library, or apparently, even at kinkos. At first you had no monetary interest in creating this artwork, but admit it, somewhere down the line that little thought popped into your head...maybe I can make a little bit of money doing this? Hey, it's a win win situation right? I get to keep creating AND I get to eat. It's the American dream right? Well...we all wish that were the case don't we?

Unfortunately, with mainstream recognition the bands, their managers, their labels and their big bad lawyers are going to want a piece. I know a select few poster artists have already received cease and desist orders from record labels and as the popularity of the art form grows, so will the legal backlash. Why else may you need a lawyer? CONTRACTS!!!!! Yes people, you may be able to keep these bands and their labels as PAYING CLIENTS and a properly drafted contract is the key to saving you time and headaches in the future.

So artists, don't forget that there may be consequences to your actions but more importantly BE PROACTIVE AND DON'T SELL YOURSELF SHORT!

Foreclosure Mediation – a good idea?

2009-10-21T15:37:00-07:00

By: M. Yang Massachusetts is one of many States contemplating, if not already passed, a law on mandatory mediation prior to lenders foreclosing on residential mortgages. There is no doubt that MA residents are faced with financial struggles that impact not only their jobs but the domino effect of losing their homes to foreclosure when they lose their jobs or hours. So is this a good idea for MA residents? To answer, let’s take a look at the proposed legislation.

Representative Vincent A. Pedone of Worcester, 15th district, proposed House Bill 1649 (and Bill 4003) earlier this year. There are also Senate Bills 1805 and 1725 by Senator Spilka of Middlesex and Norfolk proposing a program for mediation in foreclosure proceedings. Specifically, the House Bill states, “in that program the mortgagor will have the opportunity to negotiate an agreement with the mortgagee. The mortgagor is encouraged to meet with a housing counselor or attorney prior to mediation.” All of these bills propose that the homeowner be given the right to participate in mediation (if exercised, the lenders must also participate) before a Court grants a lender a judgment for foreclosure sale.

So yes, this is a good idea, mostly because it gives the individuals an opportunity to sit down with a live person representing the big lenders, presumably, with authority to make a deal. That seems to eliminate one of the biggest hurdles in dealing with a foreclosure machine, that is the bank. The biggest benefit if these bills pass goes to those who have an income but not enough to make their mortgage payments. It will not help those who lost their income all together. This makes sense because the lenders probably will not “negotiate” a lower payment, higher interest, give the borrowers more time to make payment or any other options if there’s no income at all. So what’s the incentive for lenders to negotiate? It’s more cost effective to get something (if not the full payment) than to spend the tens of thousands of dollars it takes to foreclose on a property. Therefore, if you have SOMETHING to offer, the lenders (should) listen.

So who are you going to get as a mediator? The big difference between the House and Senate bills are that the House bill calls for court employees as the mediators. This is a huge burden on the Courts and its budget since mediators need a 33-40 hour training for confidentiality to be upheld. The Senate bill, on the other hand, allows mediators who “provide mediation services for the attorney general or are mediators for current approved community mediation”. This broader definition of those who can mediate seems to be a better option since the Court employees are already stretched thin.

It’s a good idea but is this going to happen? Well, simply put, SHOW ME THE MONEY! The House bill doesn’t specifically seek a dollar amount but only states, “the money necessary to establish and operate the foreclosure mediation program shall be appropriated to the judicial department.” The Senate bill gives power to the Attorney General to implement the program and train the mediators but “subject to appropriation.” So at the end, these legislators have good intentions and have made the first step in the right direction but without clear cut and ample appropriation towards implementing these mediation programs, the light seems dim.

No Contact Orders Must Include Social Media (Facebook, Twitter...)

2009-10-14T14:26:00-07:00

By: J. Bernstein That's right folks the internet has changed the world. With the advent of Facebook and instant messaging nobody can hide from their internet viewers. Hell, I just Googled myself and found a site that tracks my entire family history. So, what happens when a person seeks the protection of the court system and receives a no contact order? Does that order include contact through social networking sites? In my humble opinion, it must or there is no real protection.

No contact orders are an unfortunate necessity for those seeking protection from threats, intimidation and bodily harm. If an offender is ordered not to contact a victim they are prohibited from being in the physical presence of, speaking to or calling the victim. As it stands now there is a gray area when considering contact through social media such as Facebook, Linkedin, Myspace, Twitter and whatever the next web-craze ends up being.

Therefore, the formation and drafting of a the no contact order becomes even more important. All parties should be informed at the outset the parameters of the non contact. In drafting the Complaint (the way the case is brought to court--for our non lawyer friends) the plaintiff should make a conscious effort to include language such as "defendant is ordered NOT to contact plaintiff by any internet, email and/or social media, including but not limited to: America Online, Gmail, Yahoo, Hotmail, Facebook, Myspace, Linkedin and Twitter."

The moral of the story...a no contact order should include no poking, no picking, no tweeting, no twiting, no winking, no linking, no smooching, no smiling and most important NO CONTACTING.

Consumer Bankruptcy 101: The Pros & Cons of Chapter 7 (educational lecture)

2009-10-07T09:07:00-07:00

Please join Bernstein & Yang, LLP for this informative lecture on Monday, November 9th from 7:15 PM to 8:00 PM at the Cambridge Community Center (http://www.cambridgecommunitycenter.org/). The Center is located at 5 Callender St., Cambridge, MA 02139.

Founding partners of Bernstein & Yang, LLP, Jennifer S. Bernstein and Marianna J. Yang are offering a lecture about consumer bankruptcy. This lecture explains the basics of filing a consumer bankruptcy and informs participants of the effects bankruptcy may have on people’s lives. This event is free and open to all members of the general public.

An RSVP is appreciated but not required. Please RSVP to Jennifer Bernstein by email at jbernstein@bernsteinyang.com or by phone at (617) 973-5029.

What Can Consumer Bankruptcy (Chapter 7) Do For You (your five minute primer)?

2009-09-17T11:56:00-07:00

By: J. Bernstein. I’ve often been asked the simple question…”what can consumer bankruptcy do for me?” To which my response is usually…”it depends on your specific situation and you also need to know what it can’t do for you.” So, here is a quick hit list for those of you with this question. Of course this list is not exhaustive, but solely intended to give you a short overview of the possible benefits to filing a consumer bankruptcy.

What CAN a consumer bankruptcy do? Some benefits may include:

“discharge” (elimination of your obligations) of most of your consumer debts

lower your periodic payments on some of your debts

stop the garnishment of your wages

stop harassment from debt collectors and stop other debt collection activities

prevent termination of necessary utility services

stop home foreclosure/allow you to cure a default

stop automobile and some personal property repossession

What consumer bankruptcy CAN NOT do? When filing for consumer bankruptcy usually you can not:

discharge debts that you incurred after filing for bankruptcy

discharge most student loans

discharge child support/alimony payments

discharge criminal fines

discharge taxes

discharge the duties of those who have cosigned on your loans

discharge the debt from certain secured creditors.

So, there is your five minute primmer. As I said, your individual circumstances will always determine whether consumer bankruptcy is the best course of action.

Bankruptcy "The 'B' word" or "Second Chances"

2009-08-31T10:58:00-07:00

By: M. Yang. Bankruptcy has taken its place as one of several financial possibilities these days along with foreclosure and unemployment. This wasn't the case for most of us before the economic downturn because we were raised with the notion that bankruptcy meant financial failure. But in these days where job security is a thing of the past and more and more of us are losing sleep over how to pay the bills, is BANKRUPTCY still a bad word?

It shouldn't be, not in these financial times nor in any financial climate for that matter. Let's rethink bankruptcy because it's about time we challenge the notion that bankruptcy means financial irresponsibility or personal failure. Take consumer debt for example. Sure, there are some people who relied on bankruptcy to free themselves of debt piled on by gluttonous purchases or impulsive retail therapy; there are those folks who never intended to pay back the credit card debts. But most of us are not in that category. Most of us are financially responsible, buy what we believe we can manage and provide ourselves and our family with the highest standard of living we can afford - all to put food on the table, a roof over our heads. We relied on our hard work, a paying job and a little something in the market for a rainy day.

So, when things unravel out of control in the form of lay-offs, months of unemployment, unforeseen medical bills, or Bernard Madoff for that matter, and our financial safety net whittles down to zero, then into the negative, bankruptcy cannot be overlooked. In fact, it's why it's there - to help in these tough economic times. Why not view bankruptcy in the light it was first intended, that is, to embody hope, second chances, and a realistic recognition that bad financial times will descend on this economy from time to time. Bankruptcy so strongly embodies these notions that our forefathers when drafting the legal lay of the land, authorized Congress to enact laws specifically regarding bankruptcy in the body of the U.S. Constitution (Article I, Sec. 8, Clause 4). This then, was interpreted to apply to a broad class of people, individuals of all classes, wage earners and corporations alike and on a voluntary petition rather than just for "traders" as they did in England. Hanover National Bank v. Moyses 186 U.S. 181 (1902). It's how one spoke in the wheel of economy works. Basically, it allows bad debts to be discharged and for both debtors and creditors to move forward. In fact, once you file, there's an automatic stay on the creditors' efforts in collecting so you can stop those annoying calls.

This is not to say that bankruptcy is easy or that it's for everyone. In a chapter 7, for example, the laws prohibit a debtor from charging up a storm in a shopping spree, then turn around to file for bankruptcy. Also, you don't get to keep a life of luxury but only the limited amount of assets that are "exempt". In Massachusetts, the homestead exemption can be up to $500,000 (which is higher than the median home prices in MA since 2006). If you don't have considerable equity in your home, you can choose to take the Federal exemptions which allow only $20,200 in homestead but allows a wild card exemption of up to $10,125 of unused homestead exemptions. Of course, the creditors also have the right to challenge your bankruptcy if they think you're hiding assets or if you're favoring one creditor over another in repaying your debt before bankruptcy, for example. And, it will stay on your credit record for longer than you want it to.

We all are in different financial circumstances so it's imperative to consult a bankruptcy attorney in deciding whether to seek bankruptcy relief, and if so, under what chapter. Don't rule it out just because it sounds bad. Figure out whether it's right for you to get you back on the track, regain hope and financial composure.

Bottom line - think about it.

When Your Neutrality is Challenged by ... [anti-semitism]

2009-06-24T15:23:00-07:00

By: M. Yang

It's been talked about often that a mediator comes across a situation where their neutrality is challenged to the core. It's inevitable because we [the mediators] don't check our value system at the door when we sit down at the mediation table and sometimes, the parties express their value system that's squarely contradictory to our own.

Here's an example. I'm mediating a case where a party is debating whether he'll get a better result in court or in mediation during a private session. He weighs the pros and cons of the evidence and he balances validating the virtues of his own claims with those of the other party. Then all of a sudden, he asks, "Is the judge a Jew?" Usually, when a question or focus of a client seems out of place, I would ask a question to probe a bit more about it, like "why do you ask?" or "where are you going with this?" or "why is this important to you?" But I didn't. Taken aback, I manage to eke out "I don't know, I have no idea which judge you'll be assigned to." Then kept silent hoping he'll move on. I really had no interest in knowing where this was going or why he's asking this. To my dismay, he didn't move on and I didn't have to ask - he decided to tell me anyway. Something about how "they" are out to get him and he'll just get the raw deal if the judge is Jewish and he might as well give up his case all together if that's his fate in court. And, he asked the observer if she's "a jew"! (She handled it nicely by saying she's only there to observe).

At this point, the non-mediator me probably would have made a judgmental, equally opinionated comment about how he is wrong and the inappropriateness of what he's saying. Unfortunately, a few weeks before this mediation, I was at a "roundtable" at MWI where Moshe Cohen led a discussion about following the parties and abandoning (or at least checking) our own agenda. With this fresh on my mind, I couldn't decide what to do as I'm biting my tongue to keep from taking my "mediator" hat off. Then I thought about the bigger lesson that I took away from that roundtable: however you decide to handle a situation, do it with awareness. So, I made a conscious decision to do the opposite fully aware that I'm doing it: follow my agenda and abandon the party's. I changed the subject not summarizing or letting him know that I heard his anti-semitic commentary, partly to make me less uncomfortable but more to avoid validating his opinion. He quipped about it one other time but generally strayed away from these comments after we moved on to other matters.

Was my neutrality challenged? YES, I liked the guy less and it diminished what I thought of his claims but I does this make me ineffective as a mediator? I didn't think so at the time and looking back, I still don't think that was the case. Perhaps it's because I am not Jewish myself but where does that line to withdraw get drawn? I'm not sure but somehow, I knew it wasn't crossed. Could I have handled this differently? Sure, but I have a feeling I would not do anything differently if it came up again, at least until I come to some other revelation.

The BATMA of Going to the Judge in Small Claims Court

2009-06-12T20:53:00-07:00

By: J. Bernstein

What do you do when someone’s “Best Alternative to a Mediated Agreement” (“BATMA”) is to let the judge decide? This question came up for me a few weeks ago while mediating a case at Boston Municipal Court. My answer at the time…it was a pleasure working with you and I hope you are comfortable with the judge’s decision. You see, in mediation, success isn’t measured by whether or not the parties actually come to an agreement at the conclusion of the mediation. That was a hard pill for me to swallow until I mediated that particular case.

Here’s a quick summary of the case: the plaintiff’s representative was a new accountant hired by an employment agency. While going through old invoices, he discovered that there were unpaid invoices from the defendant which dated back about five years. The defendant’s representative, their in-house counsel, said that the temporary employee sent by the plaintiff was on drugs and stole from the company. He also said that this was brought up years ago and that he understood that the company did not have to pay the invoices due to the poor employee placement.

Not to talk numbers, but during the mediation the parties were about $200 apart, and neither would budge. Why you ask? Well, the plaintiff’s representative explained that he could not show his face to his boss if he went below the current number. The defendant’s representative said he would in no way go above his current monetary position because he felt cheated by the plaintiff and any more than a nuisance payment was too much (even though he knew he had a good chance of losing in court).

Hmm, so what do I do now…oh, I know…ask them “what could happen if you don’t agree in mediation” (BATMA). And what did they both say? I would let the judge decide. The plaintiff’s rep. (even if he lost) could say he fought the good fight, that they had their day in court. The defendant, knowing there was a good chance that he would have to pay, could tell the judge his story and feel like his voice was heard.

While part of me wanted to shake the parties and tell them to just split the baby (the lawyer part of me), the mediator in me realized that neither party would be satisfied with that result. In this instance the mediation was successful because each party came to the individual conclusion that for this particular matter, going to the judge was their true desire. Hey, at least I got to help them along the way.