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.

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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.

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