Appellate family law mediation converting the skeptics
by Michelle Lore Associate Editor
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The mother alleged that she was owed about $110,000 in back child support; the father countered that the parties had orally agreed that he wouldn’t have to pay support. The trial court judge found the oral agreement unenforceable, and awarded the mother full back support.
The father appealed, and the case was entered onto the Court of Appeals’ crowded docket, where in past years it might have languished. At the end of the lengthy adversarial appellate process, the parents’ ability to work together could have been severely strained, if not completely compromised.
Enter the Family Law Appellate Mediation Pilot Project, instituted by the Court of Appeals a year ago. The case was immediately diverted into the program, and a trained mediator was assigned to the case. The case shortly thereafter settled, with the parties mutually agreeing to a substantially reduced back-support payment.
“I was absolutely surprised that it settled,” said Minneapolis family law attorney Susan Lach, who represented the father. “[The mediation program] absolutely paid off.”
Not every case settles, of course, but the buzz among much of the family law bar is that the project has been a success.
St. Paul family law attorney Michael Black, who serves as a mediator for the program, said the lawyers who “grumble” about the program are the ones who have a case they are sure won’t settle and it doesn’t. “Their perception is that it adds a layer of expense,” he said. “If the case doesn’t settle, then it was money spent that was spent needlessly.”
Surprise settlements
The Family Law Appellate Mediation Program began as a pilot project on Sept. 2, 2008. It’s designed to decrease conflict levels for families involved in appellate litigation, decrease the time on appeal and achieve more satisfying outcomes for the litigants.
The program includes all family law cases, which generally involve disputes over property division, custody, child support or parenting time. Participation is mandatory, with the exception of limited opt-outs available in cases that involve domestic violence or raise issues on which precedent is needed.
Cases are diverted onto the mediation track shortly after filing in order to avoid additional appellate expenses, like transcript costs and attorney fees. Litigants are, however, responsible for paying for the mediation.
Minnesota Court of Appeals Judge Harriet Lansing, who led the workgroup that organized the program, said that in the year since the pilot project began, 38 of the 72 cases mediated were resolved — the equivalent of the entire calendar of a three-judge panel for 1 1/2 months. And most cases are a complete settlement as opposed to settlement of only one issue, the judge added.
Family law practitioners are impressed at the statistic.
“Everyone is very positive,” said Maplewood family law attorney Thomas Tuft. “It’s amazing to me that cases at that stage — after going trial — would settle.”
A year ago, Black was also unsure how mediation would work at the appellate level. He has learned that while the parties’ positions are often hardened by this point, many are also feeling a certain amount of “litigation weariness” and are ready for it to end.
Minneapolis family law attorney Andrea Niemi, a mediator for the program, agreed. “A lot of people are grateful at getting another chance at settling their case,” she said. “A lot of people would really just like it to be done.”
Rush recently filed a notice of appeal in a spousal maintenance case for which mediation had been unsuccessful at the trial court level. The case quickly settled after being diverted into the appellate court’s mediation program.
“It puts me out of work, but that’s OK,” quipped Rush, who handles a lot of appeals in the family law arena.
Important improvement
So far, very few problems have cropped up in implementing the appellate mediation program. One issue, however, is an insufficient number of mediators in some areas of the state, particularly the northern part.
In response, the working group is broadening the mediation list, which currently consists of 12 retired judges and attorneys who have been formally trained in the mediation process, Lansing explained.
Other than a dearth of mediators and a few minor glitches in setting up initial meetings between parties, the program is working extremely well, said Lansing. “We are very pleased with the results. … Throughout the court system it’s been heralded as a very important improvement,” she said.
The program will not only continue past its one-year pilot period, but plans are in the works to formalize it. According to Lansing, the working group is contemplating permanent rules for the program, a project that is expected to launch over the next few months.
Initial skepticism
Many family law practitioners had some initial concerns about the program, believing that few, if any, cases would settle at the appellate level and that adding a mediation component at that stage would only extend what is already a long process.
But most are being won over, primarily because so many of the cases are actually settling.
“A lot of the doubters are coming around,” said Niemi.
Lach admitted that she was one of the naysayers.
“I was very skeptical of this when the Court of Appeals proposed it [last year],” she admitted. “It’s amazing to me, but it’s been very successful.”
Many litigants don’t understand how much an appeal is going to cost, how long the process will take and what will happen even if they win — which is usually that they end up back at the trial court level, said Lach.
“I think all the mediators are doing a good job of making people understand that in most cases it helps to settle.”
