Mediation of Divorce and Parenting CasesJan 07, 2019
This article focusing on “Mediation” is the first in a three-part series addressing some of the settlement options described in our comprehensive blog post “Options for Resolving a Divorce.”
In New Hampshire, the overwhelming majority of cases are resolved without a final hearing or trial. Most cases are resolved, in whole or in part, through mediation. In recognition of the effectiveness of mediation, New Hampshire law requires all parents of minor children, absent unusual circumstances, to attend mediation. Parents of minor children are also required to attend two events early in the case that advocate for mediation, specifically: the first appearance conference (see https://orr-reno.com/first-appearance/) and the child impact seminar (see https://orr-reno.com/child-impact-seminar/). The courts also encourage or order parties in cases without minor children to pursue mediation.
Mediation is a private and confidential process. A mediator is a neutral third party who facilitates a discussion between parties to a dispute. Mediators facilitate discussions about needs, goals, and solutions in an effort to help parties reach agreements on parenting and financial matters. It is important to note that mediators do not represent either party and a mediator does not have the authority to issue a binding decision. Mediated cases only settle when the parties reach an agreement.
The terms, format, and style of mediation may vary significantly from case to case. For example:
- Mediators may be court-appointed or privately retained. The Court can only appoint a mediator in a case that has been filed. If a case has not been filed, the parties must use a private mediator. In filed cases, courts can appoint mediators with or without the input of the parties. Court appointments are usually made at the first appearance conference. Court-appointed mediators are usually attorneys or mental health professionals, but might also be professionals from other fields, like law enforcement or the financial industry. The list of court-appointed mediators can be found here: https://www.courts.state.nh.us/adrp/mediator.pdf. Private mediators can be used to mediate cases before or after filing. Private mediators are selected by agreement of counsel based on the facts and nuances of a case. Such mediators are usually respected and experienced family law attorneys or retired family court judges or masters.
- Parties may attend mediation with or without counsel. In some cases, parties attend mediation without counsel present but use an attorney outside the process as a coach or consultant to answer questions as they arise. Attorneys are not required for either form of mediation but parties would be well advised to consult with an attorney since agreements reached in mediation and approved by the Court are binding and can be difficult to modify.
- Mediating parties may meet together (“joint caucus”) or in separate rooms (“separate caucus”). If the parties are in the same room, with or without counsel, the mediator will facilitate discussion of the disputed matters. If parties are in separate rooms, the mediator will shuttle back and forth between the rooms to communicate settlement discussions. Court-appointed mediation often occurs with all parties in the same room. Parties are usually in separate rooms during private mediation.
- Mediation may occur over the course of multiple short meetings, a half day or a full day. Mediation is scheduled at the convenience of the involved parties. Court-appointed mediators typically conduct a series of two-hour or three-hour mediation sessions. These sessions may span several weeks or months. In contrast, private mediators typically schedule mediation for a full day, or sometimes a half day. A full day of mediation may stop at the end of the business day, continue later in the evening if the circumstances warrant it or span more than one day.
A full day of mediation is best for cases that involve a number of disputes or complex issues. Devoting an entire day to the process is often necessary to permit meaningful discussion and negotiation of multiple disputes or complex issues. A full day mediation maximizes the potential to settle a complex case and avoids the setbacks associated with significant breaks between mediation sessions.
- Mediation may occur at the court, the mediator’s office, counsel’s office or another location. Court-appointed mediation usually occurs at the court. Private mediation typically occurs at the office of counsel or the mediator. In some situations, the parties may select a different neutral location, for example, the office of a neutral firm or conference facility.
- Mediators’ fees vary significantly. Court-appointed mediators charge a rate determined by the court. Private mediators charge a self-determined hourly rate. The cost of a court-appointed mediator is less than that of a private mediator, but cost should not be the only consideration.
- Mediation may occur early in the case or much later. In some cases, an early mediation may be used to address interim issues, such as temporary parenting rights, child support, alimony and use of the home. In parenting cases, absent unusual circumstances, mediation is required and must be scheduled early in the case. This leads to the early and less contentious resolution of many divorces involving minor children. In some cases, including those without minor children, mediation may occur much later in the case. Mediation is also commonly used to resolve post-divorce disputes.
When a case is resolved through mediation, the parties often sign settlement documents on that same date or shortly thereafter. Courts usually review and approve divorce settlement agreements without the need for a hearing or appearance in court. The timeframe for approval of such agreements varies from court to court but is generally around one month from the date of filing.
About the Author: Margaret Kerouac