Mediation and Expectations of Privacy

Mediation is a popular dispute resolution tool.  During a typical mediation, the parties sit down with an impartial mediator who facilitates discussions between the parties with the goal of having them reach a mutually acceptable agreement.  A mediator may help identify issues and options, assist the parties and their attorneys in exploring the needs underlying their respective positions, and upon request, record points of agreement expressed and adopted by the parties.  The mediator does not recommend terms of an agreement. Parties in a dispute can always engage the services of a mediator before filing a claim in court.   Over the past twenty years, courts have also recognized the utility of mediation and have routinely made referrals to court-appointed mediators in civil cases, notably family matters, but also in relation to business disputes and probate actions.  By using mediation to facilitate settlements, courts can clear their dockets and operate in an efficient manner. While disputes may be resolved by courts, most people prefer to avoid the expense and lengthy time commitment associated with a trial.   Court records are also generally open to the public, while mediation places a premium on privacy.   Standards of conduct for a mediator, including procedures related to confidentiality, have been incorporated in Maryland law and continue to evolve. The recently reported Maryland case, Sang Ho Na v. Malinda Gillespie, gives us insight into the matter of confidentiality during a mediation procedure.  The mediation in the case involved a custody dispute between two parents.  Prior to a hearing before a court on custody, the parents attended a private and voluntary mediation.  As a part of this procedure, the...

Child Custody – The Courts Can Do [Nearly] Anything

In evaluating child custody cases, the Maryland appellate courts give wide berth to the decisions of the trial courts.  A judicial determination associated with child custody will not be disturbed unless the trial court abuses its discretion.  This standard of review accounts for a trial court’s unique opportunity to observe the demeanor and credibility of the parties and the witnesses. What happens in situations in which parents cannot communicate with one another?  Can a trial court require parents to participate in a joint legal custodial arrangement when parents do not have the ability to come to the simplest of agreements about the issues having a long term impact on the health, education, and religious practices of their children? According to the holding in the recently decided case, Santo v. Santo, filed on July 11, 2016, the answer to this question is ‘yes’.  The Maryland Court of Appeals did not abuse its discretion when it awarded the parties joint legal custody with tie-breaking provisions over several major matters affecting the lives of their children.  Trial courts have broad discretion in how they fashion joint custody awards.  The Court further held that although the parents clearly lacked the capacity to communicate or cooperate well, this inability to communicate does not preclude the court from making an award of joint legal custody.  To elevate effective parental communication so that it becomes a prerequisite to a joint custody award would undermine the trial court’s complex task of evaluating the facts and circumstances of each case; a task that is necessary to determine the best interest of the children. The Court of Appeals further...
Lawyer Cynthia Lifson Featured in the Daily Record

Lawyer Cynthia Lifson Featured in the Daily Record

And not just featured- on the front cover. Cynthia Lifson is featured on and in The Daily Record under the powerful words “Halting Harassment.”  A long-time advocate against domestic violence, Lifson recently testified in support of legislation that significantly broadened the definition of stalking.  This legislation received the overwhelming support of the General Assembly and was officially signed by the Governor on May 19.  The new law will go into effect on October 1. While stalking has been a crime in Maryland for a number of years, the new law will prohibit a person from engaging in a malicious course of conduct in which the person intends to cause or knows or reasonably should have known, that the conduct would cause serious emotional distress in another.  Until the passage of this new law, stalking was limited to a showing that the malicious course of conduct would place another in reasonable fear of: serious bodily injury; an assault in any degree; rape or sexual offense or attempted rape or sexual offense; false imprisonment; or death. The Bureau of Justice Statistics, an agency of the U.S. Department of Justice, identified and measured seven stalking behaviors that that would cause a reasonable person to feel serious emotional distress. These behaviors include: Making unwanted phone calls; Sending unsolicited or unwanted letters, e-mails, messages or texts; Following or spying on the victim; Showing up at places without a legitimate reason; Waiting at places for the victim; Leaving unwanted items, presents, or flowers; Posting information or spreading rumors about the victim on the internet, in a public place, or by word of mouth. While these...

E-Discovery: What is it?

In any lawsuit, including family law cases, it is common to engage in the process of discovery.  In essence, discovery is intended to allow each party in the litigation process to collect information which is reasonably calculated to produce admissible evidence in advance of a court hearing or trial.  Failure by a party to respond to discovery requests may result in serious sanctions by the court and may also result in an overall negative outcome for the party who does not comply with the rules of discovery. Discovery takes on a variety of forms and can be an exhausting and time consuming undertaking.  Traditionally, the discovery process is “paper-rich” and may include the preparation of and answers to questions (referred to as interrogatories), the preparation of and response to requests for the production of documents, and depositions or the taking of testimony under oath of the parties or other witnesses. As our more and more of our means of communication take place electronically, discovery also encompasses the recovery of electronically stored information (ESI).  Retrieving ESI can be a much more complicated procedure than merely copying documents and courts have been developing rules to govern this process.  Certain difficulties emerge when collecting ESI.  For example, electronic records have multiple facets, including metadata, which may be considered privileged information. Metadata, at its simplest definition, is electronically embedded details about a data file, such as the date it was created, its author, or its connection to other files or information. Connections to otherwise confidential documents could potentially make that metadata privileged and not subject to discovery.  It can be a complicated process...

Notes From the Courts: A Rose By Any Other Name

Marital Share of Spouse’s Pension Includes All Elements of the Pension Benefit In a new application of an old theme, the Maryland Court of Special Appeals reiterated the basic concept of interpreting an agreement of the parties with regard to a spouse’s pension benefit.  In Pulliam v. Pulliam, filed on April 29, 2015, the Court held that a consent judgment was unambiguous and that all elements of the Husband’s pension benefit are to be included in the transfer to Wife of her marital share of Husband’s pension. The facts of this case are straightforward.  At the time of the entry of a judgment of absolute divorce, the parties reached a settlement of their differences and subsequently created a consent order for review and signature by the judge.  The consent order contained all of the elements in the agreement of the parties. The term of the consent order that the court was interpreting was written as follows: “ORDERED, that the Defendant shall assign to the Plaintiff an interest in the Pension System for Law Enforcement officers of the State of Maryland as follows: One half of the Marital Share of his entire pension benefit.” When the time came for Husband to sign the particular order needed to transfer Wife’s marital share to her, he refused to do so. He asserted that one particular piece of the Husband’s benefit (referred to as the Deferred Retirement Option Program or “DROP”) should not be included in the calculation of the transfer to Wife.  Husband argued that at the time of the divorce, Husband was not eligible to receive DROP as a part of...

Notes from the Courts: Know Your Marital Assets & Say it Clearly in Writing

The recent decision by the Maryland Court of Special Appeals in Baker v. Baker reminds us that in order to avoid differences in the interpretation of an agreement, it is crucial for an agreement to expressly contain the complete articulation of each and every element of the agreement.  If a clear and complete articulation of the terms of an agreement is absent, the court will look to principles of law and regulation to resolve an issue. The Baker case involved the allocation of a marital asset that was not specifically addressed in the marital settlement agreement signed by the parties.  The language of the agreement of the parties required Wife to relinquish to Husband any interest she might have in any jointly titled investment or bank accounts.  At the time of the divorce, the parties had a capital-loss carry-forward that resulted from losses in their investment accounts, but this specific asset was not discussed in their agreement.  The carry-forward came about because the Internal Revenue Code limits the amount of a capital loss that taxpayers may use to reduce their tax liability in any given year, but allows taxpayers to defer (or carry-forward) the excess loss to reduce tax liabilities in future years.  After the divorce, Ms. Baker used about 50% of the capital-loss carry-forward to offset the gains she had realized from the sale of a parcel of real property. Mr. Baker argued that because their agreement stated that Wife was required to relinquish any interest she may have had in any jointly titled investment account, Husband was entitled all of the capital-loss carry-forward asset.  While the trial...