B. Mediation/Arbitration Models

"Domestic Relations Mediation" - Michigan

The name "Domestic Relations Mediation" has been said to be a misnomer of the attorney panelling program in place in the Michigan courts and that "Domestic Relations Arbitration" might be a more accurate name for this panel model. Like some other similar programs, including the Volunteer Family Law Mediator Program in Toronto outlined in the next section of this report, the model presents an interesting fusing of both mediation and arbitration during the course of a session headed by one neutral third-party (or fifth party, in the case of two parties represented by counsel) participant. The neutral person is an attorney. The Michigan court rules set out the Domestic Relations Mediation process. Rule 3.216 states:

A court may submit any pending divorce, separate maintenance, or annulment proceeding, including post-judgement matters, to mediation under this rule for the purpose of attempting to settle contested issues.

One of these mediation sessions must also be attended by a "mediation clerk," generally a court clerk.

The referral to this process occurs either on the presiding judge's own initiative in some regions of the state and in others, on the referral of the chief judge pursuant to a written order. That is, as a general matter of procedure within the specific court. It is also possible that the mediator would be appointed on the written stipulation of the two parties. In this latter scenario, the parties generally select their own mediator. The sessions with the domestic relations mediator commence with attempted reconciliation of the issues with the parties.

The domestic relations mediation procedures are set out in administrative rule as follows.

  1. The mediator must schedule a mediation session within a reasonable time at the office of the mediator or at some other location within the circuit where the case is pending.
  2. No later than four days prior to the mediation session, each party must submit to the mediator, and serve on opposing counsel, a summary setting forth the following:
    1. the facts and circumstances of the case;
    2. the issues in dispute;
    3. a description of the marital assets and their estimated value, where such information is appropriate and reasonably ascertainable;
    4. the income and expenses of the parties;
    5. a proposed settlement; and
    6. such documentary evidence as may substantiate information contained in the summary.

    Failure to submit these materials to the mediator within the above-designated time subjects the offending party to a $60 penalty, to be paid to the mediator at the time of the mediation hearing.

  3. The parties must attend the mediation session in person, unless the meFdiator, for good cause shown, excuses the presence of the one or both of the parties. No mediation may take place without the attorneys of record being present.
  4. Except for legal counsel, the parties may not bring other persons to the mediation session, whether expert or lay witnesses, unless permission is first obtained from the mediator, after notice to opposing counsel. If the mediator believes it would be helpful to the settlement of the case, the mediator may request information or assistance from third persons at the time of the mediation session.
  5. The mediator must meet with the parties and counsel, if any, to discuss the facts and issues involved. The mediation session will continue until a settlement is reached or the mediator or either of the parties states that an impasse exists or that a settlement is not likely to be reached, in which case the session will be adjourned, subject to resumption at an agreed time. Unless the parties agree otherwise, if mediation is not resumed within 14 days, the mediation will be deemed to have failed to achieve a settlement, and the mediator must prepare a report as provided.
  6. Any information brought to the attention of the mediator during the mediation process is privileged, and the mediator may not disclose such information during future discovery proceedings or at trial. This provision does not prohibit the mediator from testifying regarding the interpretation of a written settlement agreement prepared, if the mediator's testimony is otherwise admissible under the Michigan Rules of Evidence or other applicable rules of law.
  7. If a settlement is reached as a result of the mediation, the terms of that settlement must be reduced to writing, signed by the parties and their attorneys, and acknowledged by the parties. The parties must deliver the written settlement agreement to the mediator within 14 days after the session at which the agreement was reached, and the mediator must file it with the mediation clerk within seven days after receiving it. The parties must take the steps necessary to enter judgement as in the case of other settlements. Unless the parties have agreed otherwise and have so informed the mediator, the mediation will be deemed to have failed to achieve a settlement, and the mediator must prepare a report as provided, if the written settlement agreement has not been delivered to the mediator within 14 days.
  8. If a settlement is not reached during mediation, the mediator, within 21 days after the conclusion of mediation, must prepare a written report to the parties. The report must set forth a summary of the essential facts; an itemization of the assets and liabilities of the parties, including the value or amount of each; the employment, earnings and other income of the parties; the issues in dispute; and the mediator's recommendation as to each issue. The mediator may not recommend a resolution of an issue regarding the custody of a minor different from that in effect at the time of the mediation unless the parties have agreed to that resolution during the mediation session. The mediator must send a copy of the report to the attorneys for the parties, and a notice that the report has been served to the mediation clerk.[40]

After the outlined process has occurred, the parties then have the opportunity to either accept or reject the mediator's report and recommendation within a 28-day period of time. If the parties accept the recommendation, they must then take steps to incorporate the recommendation's contents into a proposed order. If the parties do not explicitly accept the recommendation, they are deemed to have rejected it. In this case, the matter proceeds to trial and the contents of the recommendation are not admissible without both parties' consent.

In this model, the parties themselves are responsible for paying the costs of the mediator. A feature worthy of particular note is that, in the case where one of the parties is in a better financial position to pay than the other party, the court may order that the former party pay a higher proportion of the cost of the mediation. This feature addresses the common situation of the two parties having disparate financial means available to them.

The experience in Michigan is that the domestic relations "mediators" generally tend to limit their involvement to financial matters whereas the Friend of the Court Office deals with other domestic relations matters. The domestic relations mediation program is generally utilized for more tangible matters that are not overly complex. In other words, this model could be adapted for consideration of child support, particularly in those situations where the issues are more straightforward. The parties attending domestic relations mediation would not necessarily have to be legally represented as their case should be relatively straightforward in most situations. Custody and visitation are required to be resolved first, before this process kicks in, usually through the involvement of the Friend of the Court. The role of the Friend of the Court is outlined in a subsequent section of this report.

Volunteer Family Law Mediator Program - Toronto, Ontario

In Toronto, a unique program has been developed to deal with the backlog in family Chambers. The Family Law Mediator Program, staffed by Dispute Resolution Officers (DROs) who work out of the Ontario court (General Division), has been in place since May 1995.

The program is currently staffed by senior lawyers from the community who have mediation training and volunteer some of their time to work to work as DROs. Although currently staffed by volunteers, it is anticipated that this arrangement will not be sustainable indefinitely, particularly if the caseload of DROs increases.

The Toronto court has provided two courtrooms to the DRO program. The procedure for Chambers applications in Toronto is that the day before the motion, one or both of the parties to the action are expected to fax a confirmation to the court. Once these confirmations are received, the session with the DRO is scheduled. The current situation in Toronto is that all Chambers applications must first be dealt with by DROs before proceeding. Generally, this first appearance with the DRO operates as a screening and introductory session, during which the issues are identified and the nature of the application is assessed. If it is determined that the application is an emergency, or that there is absolutely no possibility of any kind of agreement between the two parties, the matter will immediately be channelled back into the regular Chambers stream to be heard that same day if necessary.

In other cases, the DRO process is explained to the parties who may or may not be represented. It may be possible during this first session to arrive at some form of a consensus. If all the required information is not on hand or if there is another barrier to resolution of the issues, the matter will be set over to be dealt with by the DRO on a subsequent date.

The general focus of the DRO is mediation. The goal is to facilitate agreement between the two parties. However, because the DROs are senior level family lawyers with extensive experience, they are in a position to offer a sound opinion as to the likely outcome of the case should it proceed through the court process. The parties may request the opinion of the DRO if they are unable to arrive at a consensual position among themselves. In this sense, there is a tinge of arbitration to the role of the DRO; however, the opinion offered is not binding on the parties.

Once an agreement between the parties is reached, the DRO provides the parties with a certain amount of time in which to file the consent with the court. The parties also retain the right to revoke the agreement before the established filing date.

The success rate of avoiding a full judicial hearing through the DRO program has been substantial, totalling about 85 percent based on unofficial figures. It should be noted that a cornerstone of the program's success is the expertise and relevant experience of the lawyers involved. The DROs are recognized as senior level participants who have insights into the operation of the court process.

The issues dealt within the course of a DRO session involve a number of family matters, including applications for support variation. The system as set up would be amenable to handling applications to vary child support orders in an efficient and expert manner.

Arbitration Masters - Montana

For modifying child support orders, the state of Montana's child support agency has introduced a system akin to a mediation-arbitration model. The Review and Modification Unit operates as a distinct unit within the state's child support system, responsible for dealing with the requests for modification from either an obligee or an obligor.[41] The staff of the unit is generally composed of former child support staff or other government agency employees who are trained in mediation after being hired. These staff members receive a month-long training session in mediation at the beginning of their employment. They also attend mediation training on an ongoing basis as it is offered in the community.

These staff members are called "mediators" in the system although they do not conduct any formal two-party mediation sessions. Rather, these staff members first request that the parties conduct preliminary guideline computations using information from the parties' financial affidavits and tax forms, send out determinations to the parties and then follow up either over the phone or by conducting informal conferences with the parties in person. The purpose of this initial interaction with each of the parties individually is to affect early agreement on an appropriate amount of child support. If no agreement is reached, the case then proceeds to the arbitration stage.

The mediator is responsible for preparing the file for the arbitration master who conducts a discussion with both of the parties separately. The session with the arbitration master usually takes place via a three-way telephone conference because of the remoteness of many areas of the state. The Montana child support formula is a modified Melson model and the factors considered include both parents' gross and net income and assets. Self-employment calculations include gross receipt minus the ordinary and necessary expenses for operating a business. The formula also provides for imputing income where necessary, based on the parent's health, education and work history. In order to depart from the formula, a parent must produce evidence that the child(ren)'s needs are not being met or show the application of the guidelines would be unfair to either the child(ren) or to one of the parents. The best interests of the child(ren) constitute the paramount consideration.

The session with the arbitration master, which is basically a mediation-arbitration model, addresses these factors by focusing the discussion in this manner. Hopefully, the arbitration master is able to affect resolution of the issues in dispute, in which case an agreement would then be drafted by the master and sent to both parties in the form of a proposed order. If the parties choose to dispute, they are to respond and the matter will proceed to court. Even in the absence of agreement between the parties, the arbitration master draws up a recommended disposition to be sent to both parties.[42]

Special Master Program - California

In California, the special master program is administered through the private sector upon judicial referral. However, this approach could be incorporated into a public system or alternatively, could operate as an option for parties who are able to pay to have their case handled.

The special masters program, which has been set up successfully in parts of Northern California, involves a judge referring matters to the special master for resolution. Typically, the special master is a mediator from the community. An identified goal of this service is to reduce the number of applications to the court subsequent to a divorce. In other words, any controversial issues that come up between the parties after their divorce has already been addressed through the court could be channelled to this forum.

The special master model is premised on a mediation-arbitration approach whereby the two parties can stipulate to the special master to have the master make a decision for them should the mediation prove unsuccessful. At this stage, the special master would write up a decision for the two parties, who then have a certain number of days within which to object to the special master's decision. Sometimes, the master's role involves only drawing up an agreement between the parties if the parties themselves decide that is all that is required.

The model has the dual purpose of taking the matter away from a backlogged court and empowering the parties to a certain extent. In regard to child support, this kind of approach would be most appropriate for a modification of an existing child support order.