D. Mediation

Most publicly funded mediation services in the United States and parts of Canada are somehow annexed to the court with family law jurisdiction. The mediation programs are generally accessed either through the parties' own application for services or through a court referral at some stage in the judicial process, whether upon initial filing, before a hearing or upon a matter first going before a justice. When mediation services are private, the parties themselves are usually responsible for paying for the sessions in the absence of another financial source such as legal aid.

There is some dispute about the role and effectiveness of mediation for an issue such as child support where in relation to the other more open-ended issues custody and visitation, there may be much less room for negotiation. There is also controversy over the appropriate qualifications of a mediator for cases involving child support or other financial-based issues. This debate is discussed in further depth in the "Staffing" section of this report.

Numerous studies have been done about the relative advantages and disadvantages of utilizing a mediation model. Noted advantages over traditional courtroom approaches include: less expense to the parties; less complexity attached to the procedure; more straightforward access; less emphasis on treating each other as opponents; and more satisfactory resolution of the case for the parties even if they do not reach an agreement between themselves. In 1991, the California Family Court Services conducted a study of existing custody and visitation mediation programs in the state and concluded:

Among parents who did not reach an agreement, nearly nine out of ten said that procedures were clear and that the mediator offered good ideas; eight out of ten said that mediation was a good way to come up with a parenting plan; and six out of ten reported that mediation helped them to see new ways to work together as parents and connected them with community resources.[18]

However, there is a lot of variation in administrators' opinions about whether or not child support is suited to the mediation process, particularly when there are child support guidelines in place. In Michigan for instance, the Friend of the Court Office separates child support determinations and the other financial issues from the mediation process. In that state, one employee of the Friend of the Court conducts mediation for custody and visitation and another employee acts as an investigator for the case, independently responsible for gathering financial information. The benefit of this approach is that the investigator on the case can take all necessary measures[19] without jeopardizing the relationship with the parties fundamental to mediation.

Further, one of the objectives of implementing guidelines is to take the element of arbitrariness out of the amount of child support that is going to be assessed. It could be detrimental to this policy goal to set up a system whereby the party seeking child support finds herself or himself in the position where she or he is bargaining for child support in exchange for a "custody or visitation trade off." A general trend in mediation is to take a comprehensive approach to a family case, thereby treating all of the outstanding issues as interrelated. Child support guidelines designed to be determinative challenge this kind of approach.

An alternative would be to set up mediation for the negotiation of child support as an independent issue. The benefit of this approach would be to foster better relations between the parties for ongoing interaction and to make the obligor or debtor feel more included and validated in the process, hopefully promoting enough goodwill with this person that he or she will feel more inclined to participate in developing a child support payment schedule. On the other hand, it may turn out that uncooperative debtors or obligors would not even show up for these mediation sessions.[20]

In some jurisdictions, the single issue of child support is recognized and treated as an issue amenable to a mediation process in its own right. In places where these attempts to discuss an appropriate level of child support are made, the focus rests on receiving feedback about some of the parties' concerns.

This approach has been established to a certain extent in parts of California as will be discussed in following sections of this report. In addition, Montana's system is basically a mediation-arbitration process as will be discussed; however, the role of mediation is crucial to this system and is centred only on child support. This program is administered by the child support agency responsible for Title IV-D cases.

In Texas, a similar approach is taken through the holding of a negotiation conference early in the child support process. This negotiation conference is part of the Child Support Review Process which operates as an alternative to court when possible for establishing, modifying and enforcing child support orders for Title IV-D cases, including social assistance and applications for the Division of Child Support's services.

The Texas child support guidelines are based on a fixed percentage of the obligor's net resources with allowed adjustments for multiple family obligations. The court also retains discretion to vary from the guidelines if the application of the guidelines is considered to be unjust or inappropriate under the circumstances.

At the initial stage of the Review Process, the case is screened in order to determine whether or not it is appropriate for the negotiation conference process. A significant factor considered is whether or not the case is relatively straightforward. If it is, it will likely be considered appropriate for the negotiation conference review. Cases involving more complicated issues are directed to the court. If it is determined to be appropriate, a Notice of Child Support Review is then sent to both parties to describe the process and to give the parties the choice about whether or not they wish to pursue this avenue.

In addition, the parties are requested to complete a financial resources affidavit and to return this information within 15 days. If the required information is not submitted, the division may commence legal action right away.

An experienced review officer is responsible for both screening the cases and conducting the negotiation conference with the two parties. The goal of the process is to reach consensus between the parties if possible without the need to proceed to a court hearing. Thus, the conference involves the review officer attempting to facilitate agreement between the parties on the issue of child support.

Some commentators challenge the effectiveness of mediation in regard to addressing gender inequalities and other power imbalances that might exist between the two parties. For instance, the view has been expressed that:

From early childhood, women are socialized to be other oriented and cooperative and men are taught to be autonomous and competitive. This socialization process, when carried into mediation, has the potential to result in unfair agreements … women enter mediation to avoid hostility whereas men enter because they think they will get a better deal.[21]

Similar criticisms could be directed to the use of mediation in circumstances where one of the parents, usually the woman, finds herself in a substantially lower economic position than a male partner. This phenomenon is particularly relevant in the case of parents receiving social assistance. For this particular category of cases, the implementation of a mediation-based model poses special difficulties. In many jurisdictions such as British Columbia, the governing legislation specifies that the parent on social assistance must make all attempts to secure the maximum amount of child support available or her or his entitlement to social assistance may be jeopardized. In other words, the parent on social assistance may not legally be in the position to negotiate about a child support amount. In addition, the economic disparity between the parties might also affect the mediation process.

These same observations might also apply in regard to an abusive relationship where the abuse of one of the parents by the other is either blatant or more subtle. Most existing mediation programs have already addressed this problem to a certain extent. Many programs involve some form of screening procedure aimed at detecting evidence of abuse prior to the first mediation session. The screening process may include procedures such as the following:

  1. the mediator or another staff member meeting separately with one or both of the parties ahead of time to ask about whether or not there has been and/or could be abuse;[22]
  2. screening court files for evidence of abuse such as applications by one of the parties for a restraining order or peace bond against the other party; or
  3. asking the two parties to independently submit written statements or to complete prepared forms prior to the mediation process, to the effect that there is no abuse and probably will not be on the part of one or the other of the parties.

None of these approaches alone will adequately address the issue of abuse in all cases. The dynamics of abuse are complex and call for a great deal of sophistication and relevant experience on the part of staff involved in the process. The staff must be able to both quickly identify and then appropriately deal with the situations as they arise. Abuse and poverty are significant societal factors that must be addressed in any effective child support model. Relevant sensitivity training for staff and consistent follow-up policy are imperative. Many if not most of those persons most in need of accessing and using the child support process may be dealing with these phenomena in their lives. Ongoing consultation with interest groups and specialized experts is fundamental throughout the entire implementation and evaluation phases to make sure the needs of these people are adequately met.

E. Mediation - Arbitration ("Med/Arb")

Several of the programs surveyed in this report contain elements of mediation-arbitration or "med/arb" to varying degrees. Commentators' opinions are mixed about whether the two functions, mediation and arbitration, are reconcilable when carried out by the same person. The functional merit of such a program seems to depend on a number of factors including:

  1. the level of skill of the mediator-arbitrator, both in terms of interacting effectively and being able to draw upon a relevant base of knowledge;
  2. the issues addressed during the med/arb (i.e., open-ended or an identifiable best solution); and
  3. the amount of respect the parties have for the mediator-arbitrator.

Some commentators suggest the notion of med/arb might in fact be more commonplace than one might initially think. In other words, the blending of mediation with a recommending function already exists in a number of diverse programs. In other words, those mediation programs where both mediation is conducted and evaluations are made represent an informal kind of med/arb service if one views the act of making a recommendation, or providing an evaluation to the court, places the mediator in the position of assessing the relative strengths of either party's case.[23]

This emerging role of mediators in some programs contrasts with the traditional role of a mediation program staffed by mediators who only facilitates agreement between the parties themselves without providing further services for the court. Those programs where mediators conduct mediation sessions, and subsequently make recommendations to the court, function successfully in a number of jurisdictions. The general trend is that most of these mediation programs are focused on custody and access; however, there is no reason why financial evaluations could not be done through a similar process.

In a 1991 study done in California, the state's Family Court Services compared the effectiveness of mediation programs which authorize recommendations with non-recommending mediation services. The findings were as follows:

In courts that authorize recommendations, 81 percent of the clients said that they did not feel rushed in mediation; in courts that do not authorize recommendations, the number increased to 88 percent. In courts that make recommendations, 84 percent of the clients said that they did not feel pressured to go along with things that they did not want; the number rose to 89 percent of the clients in courts that do not authorize recommendations. In courts that authorize recommendations, 90 percent of the clients felt that the mediator listened to their concerns; the number escalated to 95 percent in non-recommending courts. It was relatively rare that clients agreed that they felt intimidated about saying what they really felt, particularly in a non-recommending court. In courts authorizing recommendations, 82 percent of the clients said that they did not feel intimidated saying what they felt; in courts where recommendations are not authorized, the number rose to 88 percent.[24]

A med/arb model could potentially be staffed by more than one neutral person. For instance, the concept of "shadow mediation" involves:

… an additional separate mediator who "shadows" the arbitration phase of mediation-arbitration. The separate mediator generally monitors the pre-hearing activities and then joins the mediation-arbitration during the arbitration hearings if the arbitration hearings if the case reaches this stage. The separate mediator is available if either party wishes to stop the arbitration hearings and mediate a particular issue that may arise.[25]

Cecil Branson supports the concept of shadow mediation as a viable option despite the possible heightened cost. According to Branson:

Under this system, the adjudicative neutral will not be tainted by hearing ex parte confidential information in caucus. Its disadvantage … is its additional cost brought about by the need for the presence of two neutrals throughout the arbitration. On the other hand, you are likely to be better able to acquire good neutrals for each function, whereas it may not be easy to find two with a high level of skill in both operations.[26]

Despite potential drawbacks of the one-person approach, having only one person involved could be the most resource efficient med/arb model as it would only involve one person both conducting the mediation and then following through from that stage. As Richard McLaren and John Sanderson state, "if one person does both the mediation and arbitration phases, a good deal of time, resources and money is saved as less time is required in providing the necessary background information to the arbitrator."[27]

However, McLaren and Sanderson also caution that "different skills are required to generate discussion and resolution in the mediation phase than are required during arbitration."[28] They further identify the need not to cloud decision-making during the arbitration stage with information gained during mediation. It is necessary that the "facilitator be highly knowledgeable in the pertinent areas of the law, be able to hear evidence, make findings of fact, undertake legal analysis and apply the law appropriately."[29] Further, Catherine Morris cautions that in a med/arb model, caucusing and meetings with only one of the parties at a time would pose challenges to the effectiveness of the model.[30] With regard to due process rights that exist in this country, the mediator turned arbitrator would have to display equal deference toward each of the parties throughout the entire process. This requirement would preclude any indication that one of the parties had received special treatment and the other had not. Such an appearance would entirely obliterate the overall objective being sought through implementation of the model.

Alternative Dispute Resolution - the Judiciary's Example

There exists an increasing trend in the courts for members of the judiciary to become involved in dispute resolution prior to conducting a formal hearing. This growing trend is likely attributable in part to the judiciary's recognition that in many circumstances, alternative dispute resolution would make the most sense and that, often, the avenues to have matters settled before formal hearings simply do not exist in an adequate form or, in other situations, are not known about by the parties.

The judiciary's growing role in alternative dispute resolution is seen in a number of existing programs. For instance, in British Columbia, the Chief Justice of the province's Supreme Court sent out a notice effective January 1, 1996, stating that all family matters commenced under either the Divorce Act or the provincial legislation in the Vancouver Registry would first be scheduled for an "Early Intervention Hearing" during which the parties and their lawyers meet informally with an Early Intervention (EI) judge to discuss the case and if possible, to arrive at a resolution before the matter is scheduled for a hearing before a supreme court justice. In a British Columbia Supreme Court "Direction to Profession," dated December 29, 1995, the purposes of the early intervention hearing are identified as follows:

  1. to identify legitimate issues and to reduce those which are clearly frivolous or unnecessary;
  2. to reduce the number of unnecessary interim applications or to reduce the time required for an application by clarifying the true issues for the application;
  3. to reduce the number of actions set for trial and to minimize the length of trials by early identification of real issues; and
  4. to help reduce the delay of litigation and the costs to the litigants.

The early intervention hearings are scheduled to last for between 30 and 45 minutes. If necessary, a second session is scheduled with the parties. In most cases, the judge makes a recommendation to the parties about what the most appropriate course of action would be.[31] Preliminary unofficial figures suggest this program is resulting in a high percentage of cases settling during the Early Intervention Hearing.[32]

This model resembles other comparable approaches with titles such as settlement conferences, case conferences and pretrial conferences which have been set up in numerous jurisdictions and for numerous purposes.

In Saskatchewan, every person filing an application for a family matter must first go through a screening process to assess whether or not the case is amenable to mediation. The parties must go through this process before a matter is scheduled for a pretrial conference. Every case is scheduled for one of these conferences. At the pretrial conference, a judge meets with the parties and their counsel in a private room, attempting to affect a settlement of the issues. The judge is not the judge who will conduct the hearing. This process differs from mediation in that a judge is in a better position than a mediator to assess the likely outcome of the case should the matter proceed to trial. If the parties do not settle the issues, the judge will provide an opinion as to the likely outcome should the matter proceed to a hearing. The judge's opinion is not binding but it is hoped that it is somewhat persuasive in situations where the matter need not proceed to a formal hearing. In most of these programs, the judge who conducts the initial conference is not the same judge as the judge who will ultimately conduct the hearing.

The proactive role of the judiciary may play out in a workable child support model; however, prior consultation with the judiciary would be the first step to assessing the viability of incorporating an initial administrative mechanism with this forum. If this approach were to be incorporated into a model, it would be important that the parties' positions be clearly articulated and well-organized for presentation so as to reduce the amount of time required during the conference. There would need to be resources dedicated to this preparation function. If the parties have not had the opportunity to collect and organize the relevant materials which ultimately would be produced as evidence for the hearing, a primary objective of these early dispute resolution mechanisms will be lost.

The state of Connecticut has set up a procedure that is similar to these judicial dispute resolution processes. In the Connecticut process, the person conducting the pretrial meeting with the parties is not a judge. However, the meetings are scheduled on the court docket and take place in the courthouse.

In the Connecticut model, senior-level family relations counsellors from the Family Division Service Unit of the Connecticut Superior Court conduct pretrial settlement conferences for divorce cases before the court. These counsellors have a considerable amount of experience in dealing with legal issues and interact with attorneys on a regular basis. The conferences are mandatory and must be attended by the parties before a judge will hear the matter. Generally, they are scheduled on the same date as the hearing so it will be more likely that the parties will show up and be prepared.

During the pretrial settlement conference, any outstanding issues relating to the divorce action may be addressed. The family relations counsellor basically functions as a "pre-trier" of the case and will recommend an appropriate solution for the parties should they not arrive at their own consensus. Although the settlement conference is not binding on the parties, the recommendation separates this process from mediation in the traditional sense. If the parties do reach an agreement during the conference, they can immediately go before the judge to have the agreement put on the record without the need to proceed to a full hearing.

Child support is among the issues that may be addressed during this process. The conference provides the appropriate time for one or both of the parties to provide the required financial information. The state's child support formula is based on income shares based on both parents' net income. Potential areas of departure from the formula include other financial resources (aside from income) available to one of the parents, extraordinary expenses for care and maintenance of the child(ren), extraordinary parental expenses, the needs of one of the parent's other dependents, coordination of total family support and special circumstances. If the parties arrive without the information required for the child support formula calculations, they will be told to fill out the forms provided by the family counsellor while another conference is held.

F. Quasi-Judicial Hearing Officer Systems

The "hearing officer" model operates with some variation throughout many jurisdictions. Notably, throughout the United States, many jurisdictions have implemented hearing officer programs to function within the federally funded Title IV-D program. From state to state, the functions of the hearing officers vary over and beyond Title IV-D child support cases. It is general practice that the hearing officers also deal with disputed paternity cases on behalf of the court in the given jurisdiction. Title IV-D cases arise out of federal legislation which addresses particular child support cases. Not included in this category of cases are divorce cases and cases involving parties not on social assistance who have not applied for the services of the Title IV-D program.[33] These categories of people would have child support dealt with alongside other family issues in the court process. In most jurisdictions, the court process would involve a judicial hearing and where deemed appropriate either by the parties themselves or by the judge, alternative dispute resolution services such as mediation.[34]

For Title IV-D cases, the various hearing officer systems constitute certain states' responses to the federal government's requirement to establish expedited child support models in order to be eligible for federal funding. Therefore, the split between Title IV-D cases and other child support cases is predominantly a function of government resources. There is no philosophical reason why a Title IV-D hearing officer program could not to be modelled and implemented more widely to apply to any child support application in a Canadian province.

The Nevada hearing master model is fairly standard for those states where expedited child support hearing processes have been established. As such, the Nevada model illustrates some of the aspects of the typical American Title IV-D hearing officer program. The Nevada child support guidelines establish that the obligor owes a percentage of his or her gross income based on the number of children receiving support from that parent. In other words, the more children the obligor supports, the higher the percentage it will be that he or she owes out of his or her gross income. Criteria for departure from the basic calculation include: the costs of health insurance, child care and special educational needs of the child(ren), any responsibility for supporting others, the value of the services contributed by each parent, public assistance paid to support the child, the mother's pregnancy costs (if applicable), transportation to and from visitation in certain situations, the time the child(ren) spend with each parent, other expenses for the child(ren) and the parents' relative income.

Disputed title IV-D child support cases are automatically heard by the hearing officer. There is no requirement for the case to first be included on the general court list, nor is there a requirement that the case be referred by a judge to this forum. Rather, this category of cases is dealt with through the hearing master process. The hearing master hears from both parties and then makes a recommendation to the judge. The master has the following powers:

To procure the attendance of witnesses by issuance of subpoenas; to require the production of evidence; to swear witnesses; to take evidence and to rule upon its admissibility; to hear arguments; to make findings of fact, conclusions of law and to make recommendations regarding establishing paternity, establishing and enforcing child support, which, if approved by the Family Division Presiding Judge, become an order/judgement of the court; and to contribute to process improvement between agencies involved in this field.

In the absence of an objection filed by one of the parties to the hearing within a clearly identified time frame, the judge approves the hearing master's recommendation. If an objection is received by the court, the parties are then entitled to a trial de novo. In this way, the Title IV-D hearing master cases are dealt with very efficiently through the process. Like most other states,[35] the hearing master in Nevada must be an attorney with related experience.

A feature worthy of consideration in the Nevada model is the role of case workers in the District Attorney's Office prior to the case going before the hearing officer. Case workers are technically the clerical staff of the District Attorney's Office. They are the persons responsible for making initial contact with the parties and as such, are encouraged to make attempts to have the obligor negotiate an agreement. Although not formal mediation, the Nevada process allows for this preliminary attempt at settling the child support issue before it proceeds to the hearing officer for consideration.

As a point worthy of note, prior to the establishment of the specialized family court and the appointment of hearing officers in Nevada, the judiciary was assisted by domestic referees. This system was in place between 1984 and 1992. The referee system was implemented in response to the recognized court backlog within the family courts. The referees, selected by the local district courts, were practicing attorneys and, as referees, heard first motions for custody evaluation, visitation and child support. With the creation of the family court in the state, six new family court judge positions were created and the domestic referees were phased out.

California's child support formula is based on a percentage of the parents' net disposable income, adjusted according to the percentage of time each parent has primary physical responsibility for the child. Reasons for departing from the formula could include the parties' stipulation to another amount of child support, extraordinarily high income of the parent ordered to pay child support, a parent's failure to contribute to the child(ren)'s needs commensurate with that same parent's custodial time or the application of the formula would be unjust or inappropriate due to extraordinary circumstances.

The State has traditionally been more focused on the judicial processes than many other states. However, Assembly Bill no. 1058, at the time of writing before the California Senate, contains a proposal for reform in the state. This proposal concerns the appointment of child support commissioners throughout the state. Unlike states such as Nevada, California currently does not have in place a uniform expedited system for dealing with child support issues although some counties' superior courts employ commissioners who are funded at least in part through the federal government's Title IV-D program. However, there is a growing acknowledgement in the state of the need to have an expedited process set up, particularly for cases where a party seeks to have an existing child support order modified.

Article 3 of Assembly Bill no. 1058 outlines a proposed "Simplified Procedure for Modification of Support Order."[36] Subsection 3680(1) of the bill states, "There is currently no simple method available to parents to quickly modify their support orders when circumstances warrant a change in the amount of support." Among some of the recommendations contained in the proposed legislation are suggestions to adopt rules of court and forms for a more simple method of modifying child support. In addition, the superior court in every county would be required to employ enough commissioners to hear Title IV-D cases through an expedited hearing process.

In regard to the specific recommended commissioner process, the proposed legislation would introduce a statewide system similar to the hearing officer process operating in other states. The proposed legislation states:

The parties shall also be advised by the court prior to the commencement of the hearing that the matter is being heard by a commissioner who shall act as a temporary judge unless any party objects to the commissioner acting as a temporary judge.[37]

In addition to child support, the commissioner would also be empowered to join issues of custody, visitation or protective orders and upon this joiner, refer the parents for mediation, accept stipulated agreements and refer contested issues to either a judge or another commissioner for a hearing. The commissioner would basically function as a "temporary judge."

Unlike their quasi-judicial counterparts in other states, the Michigan Friend of the Court referees have wide authority for conducting hearings. A referee conducts hearings for a number of family law issues, including child support. In some areas of the state, referees are senior level Friend of the Court employees who do not usually have legal training. In other districts, the referees are senior level attorneys. The referee derives authority from the Michigan Friend of the Court Act. Subsection 7(2) of the Act states:

A referee may do all of the following:

  1. hear all motions in a domestic relations matter, except motions pertaining to an increase or decrease in spouse support, referred to the referee by the court;
  2. administer oaths, compel the attendance of witnesses and the production of documents, and examine witnesses and parties;
  3. make a written, signed report to the court containing a summary of testimony given, a statement of findings and a recommended order; or make a statement of findings on the record and submit a recommended order;
  4. hold hearings as provided in the Support and Parenting Time Enforcement Act. The referee shall make a record of each hearing held;
  5. accept a voluntary acknowledgement of support liability, and review and make a recommendation to the court concerning a stipulated agreement to pay support; and
  6. recommend a default order establishing, modifying or enforcing a support obligation in a domestic relations matter.

The usual practice of the referee then, is to make recommendations to the presiding judge. The referees function only in some districts; the role of the officials varies based on local court practices. A referee becomes involved with a particular case by order of the court. The referee might hear an application for either a temporary or a final order in regard to the enumerated items.

Many of the existing programs involve only the hearing of the facts and a recommendation based on those facts. However, if the hearing officer were skilled and if it were appropriate, mediation-arbitration functions could clearly be carried out at this stage of the process. This approach has already been incorporated into some of the specific models to be highlighted in the next section of this paper.

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