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Emerging Family Law Issues 2020 & Beyond: ART Technology & ODR

Emerging Family Law Issues 2020 & Beyond: ART Technology & ODR. Lydia Liberio , Esq., LLM, MCIArb SCMA Family Mediation Institute June 7, 2019. Inspiration – 2018 Panel.

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Emerging Family Law Issues 2020 & Beyond: ART Technology & ODR

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  1. Emerging Family Law Issues 2020 & Beyond: ART Technology & ODR Lydia Liberio, Esq., LLM, MCIArb SCMA Family Mediation Institute June 7, 2019

  2. Inspiration – 2018 Panel Last November I attended a great panel put on by mediator Susan Guthrie, members of the L.A. County Dept. of Consumer & Business Affairs, and Co-Parenter software about online mediation (ODR), and considered where the field has come over just 1 year. At the time, there were just a few ODR apps, including Co-Parenter (offering blocks of ODR on top of scheduling, expense tracking, etc.), in a field now occupied by 10 apps (Covey, 2019): Family Wizard, CoParenter, Co Parently, Truece, App Close, 2Houses, Fayr, Talking Parents, Custody Junction and Custody Exchange with varying features and costs.

  3. Trend 1: Why Family Law ODR? • In 2018, Susan Guthrie highlighted great benefits to ODR, including: • Convenience • Cost savings • No commuting • Less stress and more level playing field some call “netocracy” • In practice, I have also seen that some personality types that Ken Cloke identified in Mediating Dangerously can also be more easily handled online than live (for example, the self-centered narcissist and accommodating empath).

  4. More Benefits of Family ODR • “ODR can have many therapeutic benefits. As Becca Brennan notes in the companion article, in a range of situations ODR may be the only way that the parties can participate in mediation. The reasons may be related to geography or safety, especially in the case of individuals with a history of domestic violence, or some other factor based on the parties’ needs and interests. If the choice is between ODR and a traditional adversarial legal process, ODR is well worth a try.” (Brooks, 2017) • “In one study, mediators reported using a more directive, problem-solving approach in e-mediations than in face-to-face talks as a result of their attempts to maintain the momentum of long-distance talks. Early studies of online mediation have found it to be an effective means of resolving disputes, Ebner writes. It offers convenience, allowing parties to participate when they have the time. The slower pace of e-mail talks (relative to real-time conversations) allows mediators to carefully craft their responses and strategy rather than needing to react in the moment to disputants’ statements. In addition, e-mail talks can level the playing field between disputants who tend to naturally dominate discussions and those who are more reserved.” – Program on Negotiations, Harvard Law School (2019).

  5. More benefits of Family ODR – New Way to Meet Old Obligation • California requires mediation when custody disputes are involved. (Ann. Cal. Fam. Code s.3170a, West 2010) • New York adopted mediation for custody and visitation disputes, citing research that “parties who can reach voluntary arrangements in custody disputes do better emotionally and financially for themselves and for their children.” • (Silberman & Shepard, 1986)

  6. An Extension of Cyber-Mediation for Non-Family Disputes • Parties have also come to expect ODR options, given CyberSettle, Settlement Online, ClickNSettle, WebMediate, etc. for more flexibility, creative solutions and faster decisions, with less attorney involvement. According to Goodman (2003), asynchronous responses are better than impulsive face-to-face mediations.

  7. Some Drawbacks to Family ODR – Compensate with Ground Rules • “Studies have shown that remarks containing swearing, insults, name-calling, and hostile comments are 8 times more frequent in online communication than in face-to-face interactions.” (Guilleron, 2007) • “We found that the face-to-face negotiators exchanged more than 3 times the amount of information, on average, than the e-negotiators. Thus interactions that are removed physically are lacking in temporal contiguity can result in less overall information exchange and less than optimal social outcomes.” (Thomas & Nadler, 2002)

  8. Trend 2: Advanced Reproductive Technology and Non-Traditional Family Additions • Although the idea of creating life from test tubes and surrogates may seem complex and futuristic, 1 in 6 couples undergoes fertility testing to address family planning goals, and high costs ($30,000 surrogates), high risks (to egg donor and to surrogate), and high stress in the event of surrogate changes of heart have created more interest in embryo donation and adoption.

  9. IVF - A High Profile Industry • According to (Fischer, 1999), the early days of ART had some negative publicity, as Dr. Cecil Jacobsn, who performed the 1st U.S. amniocentesis, was convicted of fraud for fathering 70 children by replacing his own sperm for that of prospective fathers from 1976-1988. Three doctors behind the UCI fertility clinic scandal from the early 1990’s triggered 105 lawsuits with up to $650,000 in damages for implanting stolen banked cryogenic eggs from some female clients and implanting them in different clients without donor consent – leading to California’s Cal. Penal Code s.367(g) criminalizing misappropriation of eggs or embryos.

  10. Shift from Clinic Liability to ART in Divorce • The cost, emotional strain and medical risks of IVF cause doctors to encourage creation of multiple embryos, some of which are cryogenically banked for future use, and some of which are not needed, creating issues surrounding discarding, donating and putting up for adoption. Donation can either be for stem cell research that will render the matter no longer an embryo, or for use as an procreative embryo. In 1997, John and Marlene Strege did the first embryo adoption, Hannah (Geldberg, 2016). Unlike highly regulated traditional adoptions, Nightlight is one of few “embryo adoption” entities that conducts health checks, home studies, applications and training with a fee that echoes traditional adoption.

  11. ART – 3-Way Split of States – Option 1 – Embryo as Person? • Louisiana treats an embryo as a person – LA Rev. Stat. Ann. S.9:125 (1986) (per Geldberg, 2016) • Vergara also disproved Loeb’s claim he desperately wanted children with proof of forcing past girlfriends to abort pregnancies. • Actress Sofia Vergara and former fiancé Loeb made embryos when together, but split up with Vergara marrying someone else and relying on pre-creation agreement to discard if separating; Loeb lost a bid to implant 2 embryos in his new girlfriend first in CA courts, and then later in LA courts, as the embryo could not yet form a legal trust to sue for Loeb getting custody and court lacked personal jurisdiction over Vergara (Wald & Vaughn, 2017).

  12. Option 2 – Embryo as Property? • New York and Texas applied contract law instead of family law, and embryos as property per contract (Marietta, 2010); Oregon has also applied contract rights and personal property status (Goldberg, 2016) Hecht vs. Superior Court, 16 Cal. App. 4th 836 (1993) resulted with California finding a property right to sperm banked by a deceased partner in a same-gender marriage – court found survivor could inherit genetic matter. (Fischer, 1999)

  13. Option 3 – Embryo as Interim Special Status not fully Person or Property? • Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992) – At divorce, wife wanted to use embryo to have child, but husband did not approve wife’s use of embryo – Court sided with husband that a party could not be forced to procreate. (Fischer, 1999) • After Davis, clinics now require consent forms to identify what the parties want to do with embryos at death, divorce, separation (Wald & Vaughn, 2017)

  14. Mediating ART Better than Litigation – Less Contentious than Court? • Roman v. Roman (2006 Texas case)– divorcing couple, even if husband disconnected from rights and responsibilities, could not be forced to allow wife to gain custody and use stored embryos because the parties signed an embryo agreement to discard used embryos. • Kass v. Kass(1998 Texas case) – divorcing couple after 8 IVF rounds – ex-wife could not get custody of last few embryos when husband objected because parties pre-agreed to donate unused embryos. • West Virginia as IVF and embryo adoption but has no laws addressing legal status of embryos. (Lechmanik, 2013)

  15. Mediating ART – More Control than Court? • Findley v. Lee (2015, CA) – Ex-wife could not use frozen embryos after divorcing husband due to embryo agreement to dispose of embryos (Wills, 2015) • Dunston v. Szafranski(2014) – Illinois ex-girlfriend with lymphoma and infertility gains embryos stored by boyfriend (Jiggetts, 2014) • Litowitz v. Litowitz(2002, WA) – Ex-wife gains embryos made from husband’s sperm and donated eggs – but loses same as contracts said thaw and disuse after 5 years.

  16. About Lydia • Lydia Liberio is a family law attorney and mediator who prefers integrating collaborative facilitative and evaluative mediation and arbitration over traditional adversarial solutions to improve parenting plan dynamics, resolve divorce disputes and preserve family sanity and assets. She teaches family law and alternative dispute resolution at several area colleges and law schools, introducing the next generation of family law professionals and first responders to more empowering and efficient alternatives. After completing an LLM in ADR at USC years after her law degree at Loyola Law School, she incorporates best practices learned from adapting ADR early in litigation, techniques derived from a semester clinic at Edelman’s Children’s Court, and giving back to the community volunteering both as a LACBA Family Law Daily Settlement Officer and LASC Judge Pro Tem handling Family Law Tier 2 matters.

  17. Questions? • Email: lydialiberioesq2@verizon.net • Phone: 714-944-2445

  18. References – ART Disputes • Cha, Ariana. (2018, January 8). Colorado Supreme Court to Weigh if One Parent Has the Right to Use Frozen Embryos If the Other Objects. The Washington Post. Retrieved from: http://www.jewishworldreview.com/0118/embryo_dispute.php3 • Cha, Ariana. (2018, August 27). Lost Embryos Leave Families Grieving – and Going to Court. Jewish World Review. Retrieved from: http://www.jewishworldreview.com/0818/embryo_suit.php3 • Fischer, Judith. (1999). Misappropriation of Human Eggs and Embryos and the Tort of Conversion: A Relational View, Loyola of Los Angeles Law Review, 38, 381. Retrieved from: https://digitalcommons.lmu.edu/llr/vol32/iss2/2 • Guthrie, Susan (2018, November). No Limits: Expand Your Practice by Adding Online Mediation. Paper Presented at the Annual Conference of the Southern California Mediation Association, Los Angeles, CA. • Heptig, Katherine & Rivals, Cassandra. (2019, February 19). Embryo Destruction Lawsuits Open New Legal Frontier. Retrieved from: https://www.rivkinradler.com/publications/embryo-destruction-lawsuits-open-new-legal-frontier/ • Jiggets, Lauren (2014, May 16). Judge Rules Against Man in Embryo Lawsuit. NBC Chicago website. Retrieved from: https://www.nbcchicago.com/news/local/Judge-Rules-Against-Man-in-Embryo-Lawsuit-259626881.html

  19. References – ART Disputes (Cont’d.) • Lechmanik, Alyssa. (2013, November 18). The Battle over the Embryo: How West Virginia Should Legally Define the Embryo and Regulate Adoption, West Virginia Law Review, 116: 701-734. Retrieved from: https://wvlawreview.wvu.edu/files/d/aea925e9-6e49-4de2-883a-e94d80b4293e/lechmanik_ready-for-printer.pdf • Marietta, Cynthia S. (2010, April). Frozen Embryo Litigation Spotlights Pressing Questions: What is the Legal Status of an Embryo and Can It Be Adopted? University of Houston Law Center Health Law Perspectives Journal. Retrieved from: https://www.law.uh.edu/healthlaw/perspectives/2010/marietta-embryolegal.pdf • National Legal Research Group, Inc. (2003). Recent Case Law on Division of Frozen Embryos in Divorce Proceedings. Divorce Source, Inc. website. Retrieved from: https://www.divorcesource.com/research/dl/children/03mar54.shtml • Wald, Deborah & Vaughn, Richard. (2017, April 16). The Family Lawyer’s Guide to Embryo Litigation, The Wald Group website. Retrieved from: http://www.waldlaw.net/news-articles/ • Wills, Leonard. (2015, December 9). Practice Points: In Case of Divorce, Destroy the Eggs. American Bar Association website. Retrieved from: https://www.americanbar.org/groups/litigation/committees/minority-trial-lawyer/practice/2015/in-case-of-divorce-destroy-the-eggs/

  20. References – Family ODR • Brooks, Susan. (2017, June 29). Online Dispute Resolution and Divorce: A Commentary, American Bar Association website. Retrieved from: https://www.americanbar.org/groups/dispute_resolution/publications/dispute_resolution_magazine/2015/winter/online-dispute-resolution-and-divorce-a-commentary/ • Covy, Karen. (2019, April 17). The Ultimate Guide to Co-Parenting Apps. Divorce Blog. Retrieved from: https://karencovy.com/the-ultimate-guide-to-co-parenting-apps/ • Goodman, J.W. (2003). The Pros and Cons of Online Dispute Resolution, Duke Law Review, 1078. Retrieved from: https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1073&context=dltr • Gillieron, Phillipe. (2007) From Face-to-Face to Screen-to-Screen: Real Hope of True Fallacy? Ohio State Law Journal, 23: 301, 306. Retrieved from: https://works.bepress.com/philippe_gillieron/1/ • Program on Negotiation Staff (2019, April 18). Using E-Mediation and Online Mediation Techniques for Conflict Resolution: Technology Makes Online Mediation and Professional Dispute Resolution More Accessible. Harvard Law School website. Retrieved from: https://www.pon.harvard.edu/uncategorized/dispute-resolution-using-online-mediation/ • Shepard, Andrew & Silberman, Linda. (1986). Court-Ordered Mediation in Family Disputes: The New York Proposal. New York University Review of Law & Social Change, 14:741. Retrieved from: http://scholarlycommons.law.hofstra.edu/faculty_scholarship/32 • Thompson, Leigh & Nadler, Janice (2002). Negotiating via Information Technology: Theory and Application, Journal of Social Issues 58: 109, 118. Retrieved from: http://www.law.northwestern.edu/faculty/fulltime/nadler/Thompson_Nadler_InfoTechnology.pdf

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