Sunday, February 5, 2017

Mandatory Mediation

The Hampden Probate and Family Court Mandatory Mediation Program: A Successful Collaboration between a Probate Court, Law School and a Community Mediation Program

In January of 2016 we began an experimental mediation clinic at the Hampden County Probate and Family Court. The Clinic was a collaboration between the Hampden Probate and Family Court, Western New England University School of Law (WNEU) and The Mediation and Training Collaborative (TMTC), a court-approved, community mediation center in Greenfield. The clinic built upon a pilot mandatory mediation program which had been running at the Hampden Probate Court since the fall of 2014, and was administered by TMTC. Under this pilot, the court referred 4 cases per month (2 cases on 2 separate dates). TMTC scheduled mediators to conduct the sessions, and conducted intakes and screening in each case prior to the scheduled date.

 Starting in January 2016, for the duration of the WNEU winter semester, the court referred two cases per week to the clinic. The litigants were required to attend the clinic, which provided free mediation to the participants.  I was the qualified mediator charged with conducting each session. Reaching agreement was obviously voluntary.  I supervised two WNEU law students who had previously taken a semester-long family mediation class I teach at the law school.  Although they had had a great deal of experience with role play mediation, this was the students’ first experience with “real life” mediation situations.  In addition to participating in the court mediations which occurred every Wednesday, the students also worked with Betsy Williams, Clinic Coordinator with TMTC on the intakes for the cases.  Prior to the mediations, TMTC called and spoke with each participant to give them information about mediation, screen for domestic violence or other issues that could make mediation inappropriate, and to obtain relevant background information for the mediation.

            Although attendance was mandatory,  theoretically the litigants could have attended the mediation, sat down for 5 minutes and ended the session and they would have technically been in compliance. In practice, not only did this never happen but in almost all the cases mediated, whether high or low conflict, the parties actively participated in the mediation to its conclusion.  In addition, although we initially thought no-shows might be a problem, in fact it was never a problem.  We had 100% compliance from the participants.

            The clinic was a success on multiple levels and resulted in many surprises and unexpected results.

            First, from the standpoint of the students, there is nothing like real world experience. As interesting and realistic as role-plays can be in class, they are no substitute for the real thing. Students experienced clients with strong emotions, clients with little affect or emotion, clients with mental illness, clients struggling with poverty, clients with high conflict and clients with seemingly no conflict, clients who were highly articulate and other clients who were difficult to understand.  As the semester progressed, students were given more and more responsibility. Initially, they observed me mediating. Each Wednesday, following the mediation, we met for an hour to debrief about the mediations. The students were also required each week to submit a self-reflection paper with their observations about that week’s mediations.  As the semester progressed, students took on a more active role, starting with making the opening statement to the parties, explaining ground rules, confidentiality, voluntariness etc.  The students then progressed to information gathering and issue spotting.  By the end of the semester, each week the students would alternate taking the lead as co-mediator with me under my supervision. There was a similar progression for students’ involvement with the intake process.  They began by listening in on the intake/screening calls being conducted by Betsy (with full knowledge of their presence by the clients), then started providing some of the opening information, and ultimately were charged with conducting the intake altogether, with Betsy still on the call to fill in any gaps, as necessary.

            One of the biggest surprises of the clinic was the fact that not a single participant ever objected to the students’ participation. Participants were gracious about the law students’ presence.  At times it even felt that having the students in the room added some lightness to the atmosphere.  The students’ presence almost seemed to calm the clients a bit. There were times when after we had reached an agreement and I had gone upstairs to check in with the clerk about the agreement, I came back and the law students and clients were talking casually. In one case, the mother was talking with the students about her very unusual pregnancy. Participants were asked to fill out evaluations after their session.  In addition to the evaluations being almost universally positive, no mention was made in any of the evaluations complaining or negatively commenting on the students’ participation.

            From an educational perspective, I believe the students received an experience that in many ways exceeds what they can get in a classroom.  While I ultimately would have liked for them to have had more experience being the lead mediator, we also had to be mindful of the fact that this program was also for the benefit of the court and the litigants, and needed to uphold the quality standards for the provision of ADR services in a court-referred case.  So, the education that the students received, including possibly the education of blowing a mediation completely (which has its benefits didactically) had to be balanced with the fact that ultimately, we were trying to help the clients settle their cases successfully.  Nevertheless, the students experienced having to think on their feet and came face to face with the real-life problems clients faced.   As is the case with experienced mediators, students learned how to balance being facilitative and directive when necessary.

            From the court’s perspective, I can only assume that the program on many levels was helpful and successful. We had 13 weeks of cases with 2 cases per week.  Although I was not keeping a tally of success and failure, my general recollection is that we helped settle approximately 22 or 23 out of 26 cases.  In almost all cases, we were able to write up an agreement  during the session and the parties saw the judge that afternoon and their agreement was approved or the agreement was approved administratively.  In one case, a divorce action, the parties reached an agreement on most of the aspects of their divorce, we wrote up an agreement following the mediation, sent it via email to the parties and after a few minor edits, they had the agreement approved as part of their divorce. So, as a result of the clinic there were 23 fewer cases that needed pre-trials, case management conferences, trials, judges’ time, clerks’ time and the court’s time.

            Much of the success was due to the choice of cases sent to the clinic by the judges and judicial case managers.  The cases that did not settle often involved a client or clients who were extremely dug in.  Or, in several cases we were dealing with a client who was likely suffering from mental illness or drug abuse.  In one case, one client simply did not care, was not interested in engaging with his ex-partner and was absolutely unwilling to engage in the mediation in any productive way. 

Many of the cases that did settle had certain similarities.  They often involved young parents who were never married and had a young child together.  Many of these cases involved two young people who simply were not good at communicating with one another.  A common element was a new boyfriend or girlfriend and animosity between the parent and the other parent’s new partner.  When given a chance to have a conversation in a safe setting, facilitated by a neutral third party, these litigants almost always resolved the issue which had brought them to court.  Sometimes it was hard to even think of them as litigants. What they needed was a forum where they could be heard, where they were given full attention and where they had more than the five minutes they would receive in a busy motion session.  Many times, the young parents just needed some ideas (some of which seemed so basic and commonsensical) about how to communicate with each other.  “He never answers my texts;” “Her boyfriend is sending me nasty text” , “She is badmouthing me on social media.”   Many of these cases involved the mediators helping the clients come up with communication protocols and ground rules.

            Most of the cases we had were not complex financial cases or high conflict child custody cases.  They were cases that probably never should have been in court in the first place but for the fact that as a result of poor communication, the parties had no other way to resolve their dispute.  On the other hand, we only had 2 hours with the parties so the cases that were most amenable to mediation were cases where there was one or maybe two issues.  Although we were able to help two couples reach a full divorce, full divorces were the exception. Most of the cases involved unmarried couples who had a parenting issue. 

            From my perspective as a full time private mediator, I had an opportunity to work with a population that I rarely see in my private practice.  The vast majority of the cases involved unmarried parents, usually under age 30, most of them at or below the poverty line.  I appreciated the challenge of working in unfamiliar territory including poverty, disability and mental illness.  In addition, the vast majority of cases I handle as a private mediator are not already in litigation but rather result in an agreement which is then filed as a 1A divorce.  Cases that are already in litigation have a different flavor and require different approaches which I had the opportunity to try out.  As a teacher, I struggled with, but appreciated the challenge of balancing my desire to give my students experience and opportunity to succeed and fail, with my internal pressure to get the case settled for the court. Finally, this was the first time I had the experience of having people other than my clients seeing me actually conducting a mediation.  It was therefore a wonderful learning experience to hear from my students what they observed me doing, what worked and what didn’t work.

            Some things I learned and was surprised about:

            1.  If these cases were any indication, there are many cases clogging up the court system which simply do not belong in the court system or could be avoided with some early intervention.  Some of these cases really did not involve a conflict. Litigation however was the only way that one party could communicate with or force some action from the other party.  I don’t know how else to say it, but that’s just crazy.

            2.   In a few cases we struggled with what to do in the cases where one party was pro se and one party had an attorney.  We opted for allowing the attorney to sit in on the mediation.  In both cases where that occurred, we asked the pro se party if he or she had an objection to the presence of the other party’s attorney.  In one case, the client and her attorney opted for not having her attorney in the mediation.  When the attorneys did participate (even in the case where there were two attorneys) they were very helpful to the mediation. They helped give their clients a reality check when it was necessary. They were also helpful in explaining things that their clients were having difficulty understanding.  As long the ground rules were established at the outset and followed, having one or two attorneys in the room was very helpful.

            3.   I was surprised that despite the fact that the mediation had been ordered by the court, there was no resentment of that by the clients (except in one instance).  Again, with perhaps that one exception, when the parties walked into the mediation room, they were ready to engage in the process rather than complain about it. The concept of mandatory mediation is still a subject of debate in the mediation community, with some practitioners opining that mandatory mediation is a contradiction in terms. Before this clinic, I probably would have agreed with that sentiment.  I have a different view now.  Most of the people we saw were below the poverty line.  Most of the parties we saw had at most a high school education.  Private mediation was out of reach for most of the participants because of the cost.  Community mediation programs with sliding fee rates may have been an option but I suspect that other than through court, most of the litigants would have had no access to or knowledge about these community mediation options.  Ultimately, at least in this small sample, the fact that the participants were being ordered to attend got them in the door.  They all participated, not a single participant complained about being mandated to attend and there was a high settlement rate for the program.  This was after clear communication at the beginning of each mediation that explained that although they were mandated to attempt mediation, settlement was voluntary and they were in control of the outcome.

            4.  I was actually shocked that no one ever complained about the fact that there were three of us in the room (the two students and my myself).  When setting up the program, I fretted over whether we should have both students in the room or just one student and me.  No one seemed to be bothered by having three extra people in the room and in fact, as stated above, it may have helped calm the mediation in an unexpected way.


            This particular program came about as a result of a perfect storm of sorts.   A law school that was interested in and committed to providing its students with externships and real-world experience connected with a busy probate court with many pro se parties and a judge who is committed to the expansion of alternative dispute resolution in the courts in general and in the Hampden Probate and Family Court in particular. In addition, we were fortunate to be able to partner with a community mediation organization that has a lot of experience providing mediation services in the probate court, the administrative skills necessary to run the program and the flexibility to make the adjustments essential to make the program work.  And finally, this was all combined with the willingness of the Chief of the Probate and Family Court who was prepared to give the program the go ahead.

            In retrospect, while I cannot speak for others involved in the program, I recognize that I may have been somewhat na├»ve in structuring the program. That is, I agreed to plug the law school clinic into a mandatory mediation program before really understanding and exploring the pros and cons of the mandatory mediation model. As I have begun to read more about mandatory mediation programs around the country and about mandatory mediation in general, I realize that there were a number of issues that I did not consider.  For instance, should there be sanctions for non-participation or should parties be entitled to opt out. Should cases referred to mediation be chosen randomly or be handpicked by the judge or court personnel?    And how much information should the court have about what transpired in the mediation?   This is in addition to the more philosophical and theoretical (but still important) questions like “Is mandatory mediation antithetical to the whole notion of self determination of the parties?” There are a multitude of scholarly articles on the topic of mandatory mediation.  An excellent article that delves into many of these issues is Peter Salem’s article entitled,  The Emergence of Triage in Family Court Services: The Beginning of the End for Mandatory Mediation?” 47 Fam. Ct. Rev. 371 (2009).  On the other hand, sometimes ignorance is bliss. Had we tried to address all of these issues in the first year, we may never have gotten the program off the ground.  From a purely anecdotal standpoint, it appears that the clinic was a great success. As we enter our second year, we will start to address some of the above issues and others as they become or appear appropriate.   For now at least, our experiment has been a success in almost all respects.  It has benefitted clients (as reported by the clients), benefitted the courts by reducing caseload, and benefitted the law students by providing real world experience mediating.