Who should be allowed into a caucus or mediation joint sessions?

This is not an easy decision to make in many cases.

When one side is pro se, it is often considered an automatic thing that the unrepresented side should have a “support person” with them to make them feel more comfortable.  The decision should never be automatic.

In mediation, confidentiality is extremely important to the process.  Even if outsiders sign the confidentiality agreement (and there should be one in all mediation), they have less motive to adhere to it than the parties to the dispute at hand.  Even if everyone agrees to letting them participate, I require them sign the confidentiality agreement.

That is why when I am acting as the mediator, I never make the decision without obtaining the position of the other side.  They may have real misgivings about letting an outsider participate, no matter how well-intentioned, hear various settlement proposals and being given access to personal information.

The other issue to consider is that frequently the party to the mediation will not be the real “decider”.  Frequently the spouse or some other person will have to be persuaded to give their assent in order for an agreement to be concluded.  In that case, having them participate may make very good sense and enhance to possibilities that the mediation will result in a settlement agreement that will not be upset or attacked later.

Some mediators consider an attorney representing a party to be an “outsider” who should not participate absent the permission of the other side.  That is a fairly extreme view.  People have the absolute right to counsel in all phases of mediation in my view, as long as that attorney is there as their legal representative in the matter.

It is always good for the parties to tell the mediator and the other party or parties that someone other than a party will be attending the mediation.  This gives the parties a chance to consider the position they will take on the issue.  The requesting party may feel that this is just a chance to prepare arguments against the attendance of a non-party.  I would suggest that it is a chance to persuade the other parties that it is a good thing that will help achieve a settlement.  Popping the issue on people at the very beginning of the mediation session will more than likely result in a reflexive “no” to the request.

FINRA Launches Small Claims Mediation Program

FINRA’s (Financial Industry Regulatory Authority) Mediation Program has launched a pilot that offers parties in small claims arbitration cases free or low-cost telephone mediation. Participation in the pilot program, which began January 15, 2013, is voluntary and open to cases involving claims of $50,000 or less.

The pilot program offers mediation at no cost for arbitration claims of $25,000 or less; or $50 per hour for cases with claims of $25,000 to $50,000.

Mediation is an informal process and offers both parties the opportunity to discuss their case privately and confidentially with an experienced mediator. FINRA mediators settle 4 of every 5 cases mediated through FINRA’s Mediation Program.

How to Participate

To participate in the program, sign and return the Small Claims Mediation Submission Agreement.

FINRA will assign a mediator, who will contact the other parties to get their agreement. Mediation is voluntary, so all parties must agree before the mediation will go forward. The mediator will communicate the status of agreement to all parties.

More information at www.finra.org.

The American Model of Divorce

From an article in the Kansas City Star entitled “Custody battles at home can scuttle performance at work”:

“Even as the national divorce rate declines, couples who do wind up filing most often participate in a protracted and adversarial process that disrupts their home lives and interferes with their work performance. Social networking has added to the mix, becoming the latest legal tool in divorce and child-support battles and taking the drama up a notch. Add in forensic accountants and electronic paper trails, and you have the makings of long and costly divorce battles.

These contentious disputes are clogging court systems across the country. University of Baltimore School of Law professor Barbara A. Babb, who directs the school’s Center for Families, Children and the Courts, says as many of half of trial court cases are family law, typically taking up to two years from start to finish. With participants fueled by a newfound hatred of their former spouse, these cases often destroy families, affect children’s behavior, and cost employers money in lost time and productivity.

Babb believes there’s a universal interest in moving away from the win-lose mentality that turns these cases into disruptive battles. “Many judges don’t like to hear family-law cases. Court should be a last resort only for those issues can’t be resolved through negotiation or mediation.”

The first question that someone will ask is who was at “fault” for all of this? We Americans spend much of our time these days attempting to fix fault for everything that has gone wrong in our society or in our lives.

Perhaps this has nothing to do with the fault and has much more to do with it is simply the way things are. Our training as lawyers teaches us to be advocates and to argue all points on behalf of our client that are to the client’s advantage. And since we never know exactly what point of evidence will be the winning point, we are of course tempted to seek out as much evidence as possible and present it to the court. Meanwhile, in family cases, we are representing clients who feel compelled to “win”. This mixture of system, training and motives frequently produces a litigation cataclysm that impoverishes everyone involved in it, and that is sometimes the lawyer too.

I think of this as the American Model of Divorce. People divorcing seem to think that they must engage in a long, corrosive and expensive battle in proving all of the little points that in hindsight sometimes seem so irrelevant to their ultimate happiness as human beings.

Perhaps if the court system were more aimed at forcing people to negotiate rather than gear up for contested hearings, more productive work could be accomplished by the parties during their divorce case. Here in Maine, it might be a great deal better if the court set up a system where at several points along the way the parties were forced to sit down and negotiate rather than at only one point along the way. In a Maine divorce case, with children, if the parties indicate during the first meeting with the court that they are not in agreement, the court will automatically send them to mediation. This will be the last time the court will ask them to go to mediation, yet the court is sending them to mediation at a time in the case when they possibly the least likely to want or be able to settle it. There are many reasons for this.  For instance, they have not have gotten used to the idea that they are going to get divorced and one or both of the parties are not ready to negotiate, one or both of the parties has insufficient information about financial and other issues to be confident enough to negotiate, or the small block of time the court sets aside for them is simply not enough time to negotiate all of the issues involved in the case. Yet, once the mediation ticket is punched, the parties are done with that as far as the court is concerned.

Of course, the parties may be afforded an opportunity for a judicial settlement conference later in their case, but that is not a given. They might get it, and they might not get it. And, surprising number of the judges express the feeling that judicial settlement conferences are not productive.

Is it any wonder so many cases wind up going to unnecessary hearings?

Maybe a system that was that is designed to send the parties to a series of negotiations rather than force them into a series of testimonial hearings would be a system that would avoid much of the angst and anguish displayed in the article above.