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Public needs to be better informed about mediation

I’ve attached an interesting article from the Northwest Indiana News.  What I find fascinating about the article is that people are not using mediation even when provided free.  This indicates to me that the courts, legal and mediation professions have done a poor job in educating the public about mediation and its benefits.

Few low-income couples tapping mediation fund

Service could save time and money in divorce/paternity cases


This story ran on nwitimes.com on Sunday, December 24, 2006 12:16 AM CST

VALPARAISO | Only eight couples this year took advantage of a county program offering free or subsidized divorce mediation services to low-income residents.

Most of the money, which is generated through a $20 fee on all divorce filings, was spent to mediate paternity disputes involving couples who were unmarried when they had children, said Family Court Supervisor Alison Cox.

Sixty-six families received paternity mediation assistance this year through the county’s Alternative Dispute Resolution Fund Plan, according to an annual report compiled by Cox.

Porter County magistrates Katherine Forbes and James Johnson, who handle most of the county’s divorce cases, said they don’t require mediation, but do encourage it.

Successful mediation not only reduces the need for court time, but also provides an opportunity to discuss issues that might not be allowed in a courtroom, Forbes said.

“I can’t imagine what the docket would be like without it,” Johnson said.

Divorcing couples interested in the mediation assistance program do not have to be referred by the county magistrate or judges, according to Porter Circuit Court Judge Mary Harper.

Individuals can be referred by their attorneys or apply on their own through the family court division at the Porter County Juvenile Probation Department, she said.

Couples with children are eligible for assistance if they fall below 130 percent of the federal poverty index, but exceptions will be considered, according to the program guidelines.

While Cox said the program is capable of handling more divorce referrals, it operated in the red this year, according to the annual report. The program took in $14,360 during 2006 and paid out $15,574, leaving a balance of $26,150.

The family court program relies on the ADR income and Cox said the division is accomplishing a lot with the money. Cox said she and two other staff members in the juvenile probation department respond immediately to requests from the court for mediation in paternity cases.

The trio has a 91 percent success rate in paternity mediation cases, she said.

Cox and the other two staff mediators also provide the service at a fraction of the typical cost, she said. The compensation for staff members amounts to $22 to $25 per hour, she said, as compared to the $95-an-hour compensation rate spelled out in the plan for qualified attorneys.

The family court staff also conducts mediation in child abuse and neglect cases, and has provided mediation training for 13 area attorneys, who in return were required to volunteer their services, Harper said. This effort helped foster a greater awareness and increased use of mediation in the county, she said.

“It worked. It absolutely worked,” Harper said.

Mediation so popular?

German machine-guns his way into mediation talk at Mercedes Benz in Hamburg

Germany – A 64 year old German client machine gunned his way into a Mercedes Benz workshop in Hamburg (Germany) after mediation over repair costs failed.

The incident was reported by AP Germany on Saturday. Apparently the marksman had come to negotiate repair costs for his vehicle at a Mercedes Benz workshop. After mediation talks had failed, the man opened fire on the owner of the workshop and his son. Nobody was killed or hurt in the incident.

Civil Unions Law Pass the NJ Legislature

On December 14, both the NJ Senate and Assembly passed the Civil Unions bills.  Governor Corzine is expected to sign it into law.

More than Mediation

Here’s an interesting editorial detailing how mediation helped numerous parties come together to resolve the sexual abuse lawsuits against a Catholic Diocese in Oregon.  The original can be found here.
More than mediation
A Register-Guard Editorial
Published: Wednesday, December 13, 2006

The word “mediation” is hardly sufficient to describe the effort required to forge Monday’s announced settlement resolving nearly 150 lawsuits against the Roman Catholic Archdiocese of Portland. The suits were filed by people claiming to have been sexually abused by priests in Western Oregon.

Because of an unnecessary gag order on attorneys and all parties involved in the case, details of the settlement and the bankruptcy reorganization of the archdiocese won’t be available until later this month. But the mere fact that U.S. District Judge Michael Hogan and Lane County Circuit Judge Lyle Velure managed to resolve all but 20 claims and to complete a reorganization plan that could allow the archdiocese to resume normal operations after three years of bankruptcy represents a remarkable achievement.

Consider the formidable challenges that confronted Hogan and Velure when they began secret talks with parties in the case last August: Two judges with very different temperaments and working across jurisdictional lines found themselves confronted with a disparate group of plaintiffs and an archdiocese that had very different ideas about what constituted just compensation for victims of sexual abuse by priests.

The legal landscape could hardly have been more jumbled with obstacles. There were claims filed on insurance policies written three decades ago. There were the complexities of Roman Catholic canon law, which the archdiocese claimed prevented it from selling individual parishes’ property and schools to satisfy judgments. There were the claimants who insisted on their cases going to trial, and the possibility of claims that have yet to be filed.

Then there were the wrenching dynamics of human emotion: The anguish of victims of clergy sexual abuse who rightly regarded just settlements as an integral part of the healing process. The anxiety of church members uncertain if their local parishes and schools might be sold to pay legal claims. The frustration of church officials struggling to balance the need to keep the archdiocese intact with their responsibility to justly compensate victims.

If the reorganization plan is accepted next week by the U.S. Bankruptcy Court, Velure and Hogan will have succeeded in resolving one of the most difficult mass litigations in Oregon history. It’s an extraordinary accomplishment that vividly demonstrates the important role that judges can, and often do, play by resolving legal disputes before they go to trial, devouring vast amounts of time and money and leaving deep emotional scars.

Thanks to the efforts of Hogan and Velure, the parties involved in the abuse cases will be spared months, perhaps years, of protracted and costly litigation. Victims will be able to move on with their lives, the archdiocese can emerge from the cloud of bankruptcy, local parishes and schools will be able to plan with certainty for their futures, and sex-abuse victims who have yet to come forward will find resources available to settle their claims.

This many-sided and far-reaching resolution will gain a rightful place in Oregon history.

Mediation Works in Hong Kong

From the Hong Kong Standard.  The original can be found here.

Mediation seen as key to disputes

Mimi Lau

Wednesday, December 13, 2006

The government hopes to promote the use of community mediation services as an alternative to solving disputes in court, the Legislative Council was told Tuesday.

Deputy Solicitor General Stephen Wong Ka-yi told lawmakers the government is considering whether mediation could be applied to incorporated owners and to settle labor disputes.

Mediation services are popular in Britain and Singapore because they are relatively quick and inexpensive, according to a paper submitted by the government during an administration of justice and legal services panel meeting discussing the development of Hong Kong as a legal services center.

Mediation services have yet to be included as part of Legal Aid, although this is now being considered.

Wong said where a person is eligible for Legal Aid, he or she may also seek mediation services.

According to the Hong Kong Mediation Centre, a labor dispute should not take more than 15 hours to solve and would cost about HK$1,000 an hour, the bill for which would be covered by by the parties concerned.

Costs for cases referred by the police, Social Welfare Department and the Home Affairs Department may sometimes be waived.

The Hong Kong Mediation Council provides support for the pilot scheme on family mediation introduced by the Judiciary in 2000. Of the 844 cases so far, 70 percent have been fully settled with partial settlements in another 10 percent of the cases.

Frontier lawmaker Emily Lau Wai- hing expressed concern the public might not perceive mediation services a legitimate resolution for disputes.

In response, Wong said the government would strengthen promotional work stressing the legitimacy of services.

Civic Party lawmaker Margaret Ng Ngoi-yee said it may be inappropriate to forcefully channel litigation to mediation services.

NJ Legislative Update

The two bills affecting family law I’ve previously reported on in this blog have been on the move.  First, the Irreconcilable Differences bill (S-1467) has now passed the Assembly by a 61-15-4 margin.  Having previously been passed by the Senate, the bill awaits Governor Corzine’s signature or veto.  The Governor has not stated an opinion on the bill, but the bill did pass both houses of the legislature by veto-proof margins.  The Governor has 45 days to sign or veto the bill, otherwise it would automatically pass.

The other item is the Civil Unions bill (A-3767).  After some rancorous debate (with apparently no one in support of the bill as written) and a few amendments, the Assembly Judiciary Committee passed the bill 4-2.  The Senate Judiciary Committee will take up the bill soon followed by both houses.

State of the Unions in NJ

The other buzz of activity in the legislature dealing with family law has come at the direction of the NJ Supreme Court in the Lewis v. Harris decision.  In that decision, the court in a 7-0 decision stated that NJ’s prohibition on same sex marriages violates the state constitution’s equal protection clause.  The Domestic Partnership Act which the state currently has on the books does not provide to same sex couples the same level of rights, protections, privileges and obligations that heterosexual couples have under the marriage statutes.

The court gave the legislature 180 days to rectify the laws of NJ to comply with the decision.  Four of the justices decided to allow the legislature to determine what to call the new structure (marriage itself or something else) while the three dissenting judges thought that calling same sex relationships anything other than “marriage” creates a separate but equal situation and was still not consistent with equal protection.

Given the controversial and divisive nature of this subject, this decision has created a bit of a stir.  Some legislators have proposed laws (A1398) and a constitutional amendment (ACR134/SCR79, ACR216 and SCR124) to ban recognition of same sex marriages.  Others have introduced legislation to allow marriage itself to apply to two same sex people (A3685).  The one that seems most likely to pass is a “civil union” statute (A3787 and S2407).  This has the support of the legislative leadership, the governor and the people of the state (in most of the recent surveys).  Of course, with some type of same sex union comes the issue of dissolving the ones that do not work out.

I attended one our semi-monthly meetings of the NJ Association of Professional Mediators (NJAPM) this week and the changes in the state of marriage laws was one of the topics.  Of course, we were looking at it from the standpoint of divorce and pre-nuptual agreements (which is just an advance divorce agreement).  Stephen J. Hyland, an attorney specializing in same sex couple issues talked about the current state of things in this subject area.  It’s a little more complicated than simply marriage or civil union between two people of the same sex.

One area of difference is the recognition of the civil union’s dissolution (or even ongoing) elements by other states who do not legally recognize same sex coupling.  What if the couple owns property in a non-recognizing state?  What if one of the partners move to a state that does not recognize civil unions or same sex marriage?  What if the couple has a child (maybe a lesbian in-vitro child) and another state won’t recognize the child’s same sex parentage (without a “legal” adoption)?  What about the custody of the child of a divorcing couple being recognized in another state that doesn’t allow same sex unions?  How does the federal Parental Kidnapping Prevention Act (1980), which requires other states to recognize a home state’s judicial custody orders, apply in these cases?

Another major area of issues comes from the federal Defense of Marriage Act, passed in 1996.  The law has two major impacts.  First, no state is obligated to recognize the same sex marriage recognized by another state.  Second, for purposes of all federal statutes and regulations, marriage (and the term spouse) is limited to one woman and one man.  This can complicate a divorce in the area of alimony, which has tax benefits that may not be available to same sex couples.  Also, state tax law uses your federal filing status.  If a civilly unioned couple cannot file a married to the IRS, how will the state handle it?

It appears that people who were registered under the Domestic Partnership Act and become civilly unioned will have their partnership automatically terminated.  But this leads to other issues.  If a couple has been together for 20 years and divorces 5 years after entering a civil union, what timeframe determines spousal support and equitable distribution?  Is it the 5 years or 25 years?  How would the partnership act impact this?  Incidentally, the Domestic Partnership Act (which provides some rights, but not the full breadth that a civil union statute would) looks like it will remain on the books (primarily for heterosexual couples over 62).

Certainly this is an area where things will change rapidly and where the courts will likely be sorting through the details.  Like the irreconciable differences bill, I will post updates as they happen.

Thanks again to Stephen Hyland for his insights.  His website is http://www.njdomesticpartnership.com.

Irreconcilable Differences Passes NJ Senate

There’s a lot of action in the New Jersey legislature these days.  Most of the publicity is over the property tax reform proposals, as that affects the most amount of people.  However, another one winding its way through the legislative process is bill A-483 (which is the same as S-1467).  This bill will add a “no-fault” divorce cause to the existing statutory list of causes for divorce.  The exact wording is: “Irreconcilable differences which have caused the breakdown of the marriage for a period of six months and which make it appear that the marriage should be dissolved and that there is no reasonable prospect of reconciliation.”

Currently, the “no-fault” option is an 18 month separation.  This really does not allow people to move on with their lives from a situation they no longer wish to be in.  The other more speedy option is to use the “extreme cruelty” cause, where one party has to blame the other.  Unfortunately, the term probably sounds harsher than it is in reality.  “He continually wouldn’t watch the tv program I wanted to <or> She didn’t make dinner when I got home from work” could be construed as extreme cruelty.  But ultimately, one party often doesn’t want to take the blame in official documents.

The bill passed the senate earlier this month by a 30-5 margin and went through its second reading in the assembly.  This means it should come up for a vote soon.  Governor Corzine has not expressed a position on whether he would sign the bill or not to pass it into law.  Passage in the senate was by a veto-proof majority.

The main opponent to the bill is essentially the Catholic Church.  They argue that more resources should be put into  counseling and keeping marriages together instead of making it easier to dissolve one.  At the end of the day, it is two consenting and informed adults who are making an adult decision on how to live thier lives.  Almost no one takes the decision to get divorced lightly.  For most people, it is a very emotional time which completely upsets their lives.  Further, it is a lengthy process and can be very expensive (although mediation can speed the process up and make it less expensive).

I will post updates as the bills pass through the legislative process.  You can find a full list of the current causes of action to get a divorce in NJ under the resources section of the Sanns Mediation website.