Minnesota Court Of Appeals Family Mediation FAQ’s

Yesterday, we mentioned the new pilot family law mediation program at the Court of Appeals. Direct from the source, here are the answers to common questions received by the Minnesota Court of Appeals concerning appellate mediation in divorce and family cases. Thought this information would be helpful for any family litigant contemplating mediation, whether because of an appeal or a district court action.

What is Mediation?

Mediation is a flexible, non-binding and confidential process in which an impartial person, the mediator, helps individuals and their attorneys have dialogue that promotes settlement.

Mediators:

  • Improve communication and enhance understanding between the participants;
  • Help participants articulate their needs and understand the needs of others;
  • Probe the strengths and weaknesses of each side’s legal positions;
  • Identify areas of agreement; and,
  • Help generate options for a mutually agreeable resolution to the dispute.

A hallmark of mediation is its capacity to expand traditional settlement discussion and broaden resolution options, often by exploring participants’ needs and interest that may be formally independent of the legal issues on appeal. The mediator generally does not give an overall evaluation of the case.

Why Appellate Mediation?

The benefits of appellate mediation can include:

  • Avoids the risk of reversal. There is a chance that the trial court judgment may be reversed on appeal and remanded for further, costly proceedings.
  • More satisfactory results. The trial court judgment might not satisfy even the prevailing party. A mediator can assist the parties to achieve their real goals.
  • Focus on Children. For issues where children are involved, mediation helps parents focus on their best interests.
  • Economical. The mediation process begins at the outset of the appeal. This can save substantial costs of preparing the record and briefs.
  • Rapid settlements. Mediation can resolve a dispute in a matter of days, while an appeal takes much longer.
  • Allows more client participation. Clients without attorneys participate in the appeals process through written submissions only, and do not have a hearing. Even clients with attorneys can feel frustrated by their restricted role.
  • Higher rate of follow through. Parties who have reached their own agreement in mediation are generally more likely to comply with its terms than those whose resolution has been imposed upon them.
  • Reduces stress. Mediation encourages cooperation and communication, while discouraging the adversarial atmosphere of litigation.
  • Avoids financial risk. A judgment for payment or transfer of property still does not ensure collection.

Who Attends the Mediation?

All parties to the appeal, and their lawyers if they have them, are required to attend the mediation. Under special circumstances, other arrangements may be made, if acceptable to the mediator and all parties. This requirement reflects the Court of Appeal’s view that the principal values of mediation include affording the litigants opportunities to articulate their wants and needs directly to the other parties and the mediator, and to hear first hand the other party’s wants and needs. Mediation also enables parties to directly discuss opportunities for mutually acceptable solutions.

How Should I Prepare for Mediation?

If you are pro se, you can think about these ideas before attending mediation, or discuss them with someone you trust. Attorneys and clients can discuss these ideas together before attending mediation:

Understand your goals and needs. Mediation helps parties explore what really matters to them. You can prepare for mediation by thinking about what you need to allow you to resolve the matter. Needs are not just what you WANT the court to do, but also WHY you want it … think about how getting what you want will benefit you and your family?

  • Expect the discussion to go beyond the legal issues. Think about what is of highest value to you? It might not be what is in the appeal. For example, sometimes your children’s stability, being respected, a favorable relationship with someone, or end of the stress of litigation can be of equal or higher value than money or principle.
  • Prioritize. Think about what interests are most important to you to achieve. Understand where you may be willing to make concessions to get what you most want.
  • Think about what the other party needs. Other parties have their own goals and needs. They may overlap with yours, or they may be different. Mediation tries to find creative ways to help both party’s meet many of their needs. Think about questions to ask the other party to understand what is most important to them.
  • Create a list of options. Consider a variety of ways to meet your needs, and those of the other party. Be creative and leave the possibility open that you will find more options through your discussions in mediation.

Who Are the Mediators and How Are They Selected?

The twelve-member pilot project panel consists of highly respected mediators. All of them are attorneys, and have many years of family mediation experience, and an understanding of the appellate process. They are qualified family neutrals under the MN General Rule of Practice for the District Courts Rule 114, and have completed additional training on appellate mediation. They agreed to serve on this pilot panel on a sliding fee basis because they want to help people in the appellate process try a different path to resolution. You will receive a list of available mediators and short bios for them when your case is referred to mediation. You then have the opportunity to rank your preference of mediator, or agree together with the other side on who you want to choose.

What Happens if I am Ordered Into Mediation?

An Order for Mediation, Confidential Information Form (“CIF”) and this information sheet is sent to the lawyers and parties who do not have lawyers. The Order stays (stops) the appellate process from moving forward. Transcripts will not be ordered, and briefing will not be scheduled. This is to help parties avoid the costs of the appeal if they are able to reach resolution in mediation. Parties are required to complete the CIF and return it to the Court within 15 days. This form does not become a part of the court record. The form gives parties the ability to opt out of the mediation program with a valid reason. Parties also provide income and asset information to the Court to determine appropriate fees for mediation. The Court will set the fees and refer the case to the mediation coordinator, who will help the parties to select their mediator and schedule a telephone conference with him or her.

Pilot Mediation Program: Minnesota Court Of Appeals Reporting 52% Settlement Rate

The pilot family mediation project of the Minnesota Court of Appeals appears headed toward becoming a permanent component of the appellate process in Minnesota.

Two years ago, the Court of Appeals began experimenting with voluntary participation in mediation immediately following the filing of an appeal. Most, including myself, were skeptical. Mediation has traditionally involved negotiation prior to trial, not after. Trial typically leaves the litigants even further at odds with one another, with litigants on appeal considered the most conflicted.

However, the Court reports that since inception, the pilot program has resulted in a 52% settlement success rate. I find that astonishing, given the temperment of those participating in an appeal.

As many have commented, it appears family court litigants continue to appreciate an opportunity to “take the law into their own hands” and control the outcome of their dispute. I say that because of the exploding trend toward early settlement of divorce cases through early neutral evaluation. Some counties report 80% of divorce cases settling through ENE.

Last week, I heard grumblings from a court administrator that some lawyers are flustered by the settlement rates. What a shame. I suspect attorneys who work at firms with billable quotas can’t stand the idea of losing out on an opportunity to bill hours for the flurry of letters, phone calls, hearings and trials that necessarily accompany conflict-loaded cases.

This appears to be a win-win-win. The courts? Fewer resources needed in family court. The clients? Less cost, less turmoil, more control. The lawyers? A more rewarding, productive practice model.

The keys to success in early resolution, in my mind, are two-fold. You need to find a lawyer with two seemingly competing characteristics: (1) a reputation for success in the courtroom; and (2) a sincere desire to settle matters early. We find that cases tend to settle early when the opposing attorney knows we aren’t afraid to (capably) try cases. But, our goal for every client is to litigate only when absolutely necessary. That combination has worked well for those we represent.

Minnesota Court Of Appeals Implements Mandatory Family Mediation Program

As of September 2, 2008, the Minnesota Court of Appeals will refer all family court appeals for mandatory mediation (with some exceptions for cases involving, for example, domestic violence). The program was designed to decrease costs and conflict for families involved in appellate cases while increasing litigant satisfaction.

Upon the filing of a Notice of Appeal, the Court will immediately refer litigants to mediation. Mediators available to serve include a panel of 12 retired judges and/or experienced family law attorneys. Parties will pay the costs of the mediation on a sliding fee scale.

This pilot program was initiated three years ago as the result of a meeting between Judge Harriet Lansing and William Mitchell College of Law Vice Dean for Academic Programs Nancy Ver Steegh. Ver Steegh is known for her work in the area of family law and alternative dispute resolution, and serves as an Editor for the Family Law Professor Blog. The Chief Judge of the Minnesota Court of Appeals, Edward Touissant, believes the program is here to stay, calling it a “win-win” situation.

A few other states have adopted similar programs, with a resolution rate as high as 76 percent. That’s an impressive statistic, given the adversarial mindset of litigants – especially following a trial.

We’ve seen clients benefit from the trend toward resolving family disputes through mediation.   This new mandatory appellate mediation might just result in additional justification for working with a mediator in the very early stages of litigation and avoiding unnecessary fees, costs, time and emotion.