Mediation Food for Thought

INTRODUCTION

I am pleased that we have begun a dialogue within the WV State Bar regarding mediation and other innovations in family law justice and administration. Below are the four components of my thoughts, personal views only; 1. A memorandum espousing innovation in mediation and family law practice. 2. A “Mediation Basics” instructional handout to be read and signed by every family court litigant; 3. A “Mediation Intake” form; and, 4. A very rough draft for new family court mediation rules.

Memorandum In Support of a Change in the Family Court Mediation Rules

Before we try to rewrite the mediation rules, I would like to state the case in favor of a revision. Our system sets up Litigants in divorce, custody, contempt, and modification cases as “adversaries”.

These cases are often highly charged with emotion, are emotionally and financially draining, and they can drag on for over a year!

At the end, the parties often truly detest one another, and their children have suffered, only to have a court issue a ruling that isn’t tailored to the parties’ needs and may be something both sides dislike. It borders on “one size fits all” justice.

Something like 70% of family court litigants are not represented by a lawyer, and those who are must spend money which could be better used to benefit the family.

This is an “access to justice” issue and a pricing issue. There is a better way.

Mediation is a form of “alternate dispute resolution”. It can increase “access to judgment”, reduce acrimony, allow the parties to control the outcome, and set the stage for a successful “post litigation relationship”.

The current rules place artificial limits and restrictions upon innovation and access of justice. The separation of “children’s issue” from property, debt, fitness, and alimony issues places a huge barrier to global resolution of contested family court cases.

Current weaknesses are:

1. Many WV Family Court Judges do not appreciate or understand the benefits of mediation. In there defense, one must attend some mediation with a talented mediator and good counsel to appreciate the magic that routinely happens there.
2. In those jurisdictions, parties and lawyers are less likely to negotiate successfully.
3. Face to face meetings often deteriorate into failure. Some are downright ugly.
4. Not all lawyers make the effort; And, if parties were good at working out their differences, they probably would not be adversaries.

So, here are some suggestions:

1. Educate people on the benefits of mediation.

2. Require family law lawyers to get training in negotiation and mediation. Some may become mediators, but all family lawyers need to know how to be a constructive force in mediation.

3. Require litigants in the vast majority of family cases to participate in good faith mediation.

4. Establish a fund for low income litigants to have mediation, and place a realistic sliding scale, one that allows competent attorneys to be mediators, for litigants who are above the poverty line.

5. Set a standard that requires lawyers to accompany their clients this most critical stage of representation.

6. A “contested issue” is a contested issue and should not be differentiated between children’s and other issues.

7. Mediators should be expected to draft agreements or memorandums of understanding, signed by both parties, and should file these agreements in the court file with copies to the Court.

8. Barring fraud or coercion, or “good cause”, litigants should be held to these agreements as to other contracts.

9. Mediation should go hand in hand with “unbundled services” so that other lawyers can work with parties to prepare them for mediation or hearings without becoming “record counsel”. Key to this are clear, understandable, atty/client contracts which establish the limits of these unbundled services in plain language.

10. Guidelines should be established for mediators who mediate for unrepresented parties, not to restrict them, but to help assure there won’t be a power imbalance, coerced agreements, or agreements favoring the more assertive or articulate party.

11. Other ideas such as family court arbitration and collaborative divorce should be researched and considered.

12. I question and can’t yet recommend “limited law licenses”, but I strongly believe the range of services paralegals can supply under the supervision of a lawyer needs to be expanded.

13. Family Court Judges should observe mediations in jurisdictions outside of their own. Until a person has participated in mediation, he or she just cannot understand the dynamic and the potential of such a non-confrontational tool.

14. In jurisdictions where mediation is the norm, cases move quicker and dockets stay clearer. And, even though mediators and lawyers don’t work for free, there are drastic costs savings when cases do not have to go to a contested trial, and appeals are reduced.

Family Court Mediation Basics

1. The process of family court litigation is usually stressful and can involve considerable expense and delay. It is a fact that a litigant should have legal representation, and you are encouraged to do so.
2. Many people do not. Mediation may be even more important for the self-represented party than one with a lawyer. If you have a lawyer, she or he should be experienced in mediation negotiation.
   Many family courts refer litigants to a family court mediator. Mediation is a process which permits the parties, with the help of a facilitator or “mediator”, to address the issues which separate them, and to resolve the issues by themselves.
3. Mediators are often, but not always, an experienced family law attorney. You should specify whether you prefer that your mediator be a lawyer.
4. Mediation permits parties to find solutions that the Court cannot provide, and avoid a decision imposed on them from above by someone who doesn’t really know your or your children, and who will have a relatively short time to evaluate your evidence and render a decision.
5. Unless you have a serious reason (and skepticism or pessimism doesn’t count), the Court is going to refer you to a mediator. The Court can only refer you to a mediator who is on the Court approved list.
6. These are lawyers, and occasionally non-lawyers such as a child psychologist or counselor, who have taken mandatory training and have agreed to accept payment under a sliding scale, based on the parties’ abilities to pay.
7. The Court will apply that scale to your case and apportion the costs between you, usually based on your respective incomes. Mediators may require an advance deposit, so be sure to call her or him. Missing your mediation session may have dire consequences.
8. There are attorneys who offer mediation services who are not on the court approved list. These attorneys set their own fees. You and the other party can agree to use one of these lawyers, if you feel he or she will be particularly suited to your case. The Court can only refer you to mediators on the Court’s list.
9. You should prepare for mediation much as you do for your final hearing (trial). You should document your debts, as of your date of separation and as of the date of mediation, and know and document your assets (personal property such as cars and furniture; real property such as house or farm, and retirement benefits such as a 401K plan or pension).
10. If alimony (spousal support) is an issue, read the alimony statute, West Virginia Code – Sections: 48-6-301, 48-8-104, and make a list of relevant facts (Length of marriage, relative incomes, age and health of parties, fault, etc.) Family cases other than divorces have other evidentiary requirements.
11. You should have completed and filed a proposed parenting plan, setting out your proposed allocation of time with your child/ren, including school time, overnight time, holidays, and summers, and the sharing of decision making and full access to your child/rens’ records of all kinds. BRING EVERYTHING WITH YOU TO MEDIATION!
12. If there is a serious history of violence or health risk, you will be permitted to explain that on the mediation intake form. No one is expected to put health or safety at risk, but please consider the benefits of being the architect of your own agreed parenting plan or property (and debt) settlement agreement.
13. Courts are often happy to expedite a final hearing if all issues have been resolved. That frees the litigant to begin the next phase of her or his life. And it spares expense and delay, and promotes the welfare of children. Think about it, and good luck!

I certify that I have read, or had read to me, this statement of the basics of family court mediation, and I believe I understand it.

Signature: _______________________________________ Date: ___________________________

Mediation Intake Form

What is your name? ____________________________. Case Number? __________ Date? _________

Do you have an attorney? _____? If so, name? _____________________________________________

Please confirm you have read and understand the attached mediation information sheet:____________

Please provide a concise list of any unresolved issues between your and the other party: (Examples are, Primary child care, decision making, division of your personal property, of your real estate, or retirement benefits, and of your debts, alimony (spousal support), or other:

1. ______________________________________________________________________________

2. ______________________________________________________________________________

3. ______________________________________________________________________________

4. ______________________________________________________________________________

5. ______________________________________________________________________________

6. ______________________________________________________________________________

Assuming you will be permitted to meet in separate rooms by your mediator, and even if you have doubts that you and the other party can resolve your differences by agreement, is there any serious reason such as potential violence or health issues that you believe should excuse you from participating in mediation?

(Circle One) No. Yes.

Other, specify:______________________________________________________________________________

_____________________________________________________________________________________________

Thank you for your information; please add any comments or questions:

___________________________________________________________________________________________

____________________________________________________________________________________________

Signature: ___________________________________________________________ Date: _______________

Revised Rules of Family Court Mediation

These rules supersede former Family Court Rules 38 through 46.
Whereas, family courts are becoming clogged, and our juvenile abuse and neglect system is becoming overburdened.
Whereas family court litigants are suffering problems with access to justice and speedy trial.
Whereas, the former mediation rules were restrictive, unduly pessimistic, and costly to administrate.
Whereas, “the adversary system” often does not work efficiently for families and parents and their children.
Whereas, the benefit of innovation, speed, cost savings, and dispute resolution outweigh the lawyerly compulsion to establish “rules” and “procedures”.
So, therefore:
1. Litigants and their lawyers are strongly encouraged to learn about mediation and participate.
2. Mandatory Parenting Training will add a mediation module.
3. Just as lawyers have many requirements, including the recent requirement for competency in the use of technology, they also will be expected to obtain training in the mediation process, at least as advocates and to educate their clients.
4. Lawyers will be expected to be present with their clients at mediation, which is a critical stage in their representation of their clients.
5. Keeping in mind safety (serious history of domestic violence, drug or alcohol or abuse, sexual abuse), the needs of the parties (young children, large assets or debts, disparity of income of the parties), family courts will have broad discretion in selecting mediators, making referrals, and setting the time limitations, place, and other factors.
6. Family courts may only refer to mediators on the Court Approved list, but must keep a list of all qualified mediators and give litigants to select their own mediator and to make private payment for ones not on the Court Approved list.
7. Barring a motion for good cause, or a stipulation, which should be viewed skeptically by the court, by counsel that mediation will be unhelpful, the family court will be expected to refer litigants to mediation, or in rare instances alternatives such as conflict counseling, or a family or pastor volunteer, as an “alternate dispute resolution mechanism”.
8. Parenting plans will be expected to have an alternate dispute resolution mechanism, usually mediation.
9. There will be no pre-mediation screening, except litigants will be required to fill out a “mediation intake form” for the courts to review prior to the hearing.
10. The Supreme Court of Appeals expects mediation to occur in most, at least 90% of cases, and to be successful more than half the time. (Good mediators already achieve 80% and better.)
11. Mediators will follow all previously established confidentiality standards, but they will send a copy of any signed mediated agreement, property settlement agreement, or parenting plan to the court within 48 hours after the mediation, and a report whether mediation was successful, whether each party appeared, and on time, and whether either party or both were obstructive or refused to negotiate in good faith. This requirement will NEVER be used to put undue pressure on a party who simply does not want to agree, or give up a legal right.
12. Mediators will take every reasonable step to assure that agreements are entered into free of threats, coercion, or undue pressure and will ALWAYS caucus with the parties long enough to make reasonable inquiry, and will be expected to make sure the parties have no side deals or “understandings” that are not reduced to writing.
13. Related to these rules are concepts such as “unbundling” of legal service, limited contracts, collaborative divorce and family dispute resolution, and arbitration. These rules to not address such concepts but anticipate that innovative lawyers, judges, and mediators will explore these concepts within existing rules.
14. When the large majority of lawyers and judges and participants find a “rule” unhelpful, that rule should be reevaluated.

This post was written by Burton Hunter