Mediation: Slipping Away?

Here is a link to the 115 of my blog articles where I mention the word “mediation”. You will notice several of them are linked to the terms “revise” or “revision”. That’s no coincidence.

The following observations are mine alone. They are based on 25 years or so, of 47, of my  experiences with the remarkable tool known as “mediation”. Much of it is intuitive and what I “suspect” is happening, but I have a strong sense that I am right.

Civil mediation and family law mediation are quite different. There is more money on the civil side as there is often funding from insurance companies and from a well-funded personal injury or civil law firm. And, there may be only two issues: a. Liability? and b. Monetary Damages.

A typical family law mediation can have 10, 20, or more issues! Most counties where I practice send parties to mediate what they call  “children’s issue”. But, sadly, most do not see  the distribution of assets and debts, or the issue of alimony, as “children’s issues” so they don’t think they can order it. You tell me why the question of who gets the house or the safer car are not “children’s issues.”? I say if you are going to mediation, mediate and settle it all.

My book (paperback and Kindle on “Perspectives of a Small Town Lawyer” has a large section on mediation and alternate dispute resolution. As I wrote those articles, I was optimistic that mediation was spreading around the state, and would be adopted as a nearly mandatory practice. I no longer see it that way.

I requested a family law committed be formed,, and the Chair of the “WV State Bar Alternate Dispute Resolution Committee” established, a committee (actually a subcommittee of her committee) focused on family law mediation. I attended  subcommittee meetings and eagerly wrote articles on my ideas for revising mediation for family law mediation in WV. The new Chair of the sub-committee was “not impressed” and called me a “bomb thrower” for wanting to spread this useful tool throughout the State for most unresolved cases.

Likewise, I was “not impressed” with his leadership, and moved on to other things. My experience is that “State Bar Committees” are not the place to find innovation or solutions, but at least they meet in neat places like The Greenbrier, Oglebay Park, The New River Gorge, and Snowshoe.

Since then:

  1. I encountered “Legal Aid” lawyers who (because it is not within thier funding?), “Will not agree to add mediation as an alternative dispute resolution method on a parenting plan agreement.”, even though I believe it is required by our Family Court Rules.
  2.  An experienced colleague told me, “I never put mediation into my parent plan agreements. That should be up to the parties.”
  3. And a family court judge who I respect, former excellent mediator, ruled that “the mediation provision of a court-ordered parenting plan” is a “suggestion only”. What?! A “shall” order is only “a suggestion”??
  4. A “stealth” custody law was passed by our legislature which essentially moves “shared parenting”, or what people used to call “custody” to a default 50%/50% for even marginally fit parents.
  5. This is good news for most fathers  and sad news for many mothers.  and it arrived without our WV State Bar Family Law Committed having a clue it was coming. I say, “Be careful what you wish for.” This law does not seemed aimed at the best interests of children.
  6. I had tracked two previous versions of new custody bills, but I confess that the one that was passed took me by surprise. It was simply announced at the end of a “Family Court Committee Meeting” as a “done deal”; something that important, sneaking under the radar with no input from “stake-holders”.

I represent Fathers and Mothers in nearly equal numbers. I play the cards I am handed, but, in the pit of my stomach, I think this law was passed as a “men’s right” political ploy, and I fear the children will suffer from “one size fits all”. Lots of girlfriends and Grandmas will be taking on more parenting duties.

I am told that there is a large faction of family court judges, probably from ignorance, or because they want to “maintain control”, who don’t believe much in mediation. They may not have mediation as a tradition in their jurisdiction or not enough good mediators. I have written on the history of the development of family court mediation.

Mediation in WV  is far from perfect, as some of the best mediators simply can’t operate their offices on “the Supreme Court sliding scale”, and there is a chance that low-income people, who can have a free lawyer for their trial but not for pre-litigation mediation, will be prejudiced by such a rule. I have ideas how to fix this, but “the powers that be” do not seem to be much impressed by my ideas.

I will continue to mediate whenever I can. I will serve as mediator here and there for someone who sees my experience and skill worth a small premium. I will continue to urge my clients and my opponents and colleagues to be less adversarial and more collaborative. What could be a better excuse for working together than your precious children and the family you had hoped to create?

I am doing what I can, but our courts, for hundreds of years, are set up to be “adversarial”, and the people drawn to the legal profession are often not the people you would like to be solving your problems, especially family disputes. I treasure those lawyers who treat me with respect, and give me the benefit of doubt, but many have a “knee-jerk” reaction in the other direction.

The late  journalist Jim Lehrer reminded us to “assume the best” in others and “remember there almost always is another side to the story.” We lawyers often forget that as do the frightened and angry litigants.

My ideas are “out there” for anyone to read and consider. I hope the tide turns in the direction of negotiation, collaboration, collegiality, mediation, and transparency, but I am not making any bets. It may be our culture is turning back to darkness.



This post was written by Burton Hunter

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