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The blog of Resolution Systems Institute

Domestic Violence Finding Overrides Agreement to Mediate, NJ Court Says

Mary Novak, April 15th, 2015

A case in the Appellate Division of New Jersey Superior Court stands as a reminder of the complexities of family mediation when domestic violence is involved. Indeed, the court found that a finding of domestic violence can trump a requirement to mediate. The parties, O.P. and L.G-P. (names kept confidential by the court) were a divorced couple with one child. In their property settlement agreement they had agreed to continue communicating about their child, and to use mediation in case of disagreement. However, after the divorce judgment a final restraining order (FRO) was entered against the former husband O.P. under the Prevention of Domestic Violence Act. After the FRO, support was ordered to be paid through the Probation Division.

L.G-P., the former wife, took O.P. to chancery court for several payments she said O.P. had not made. Some of the missed payments hinged on communications that L.G-P. had not had with O.P. She protested that the restraining order meant that O.P. was not to communicate with her. The court responded by encouraging her to change the FRO so that the two parties could email about these matters. L.G-P. said she did not want to do this because O.P. would send her derogatory and threatening emails.

L.G-P. also asked the court to release her from the mediation requirement, saying that past mediations had not led to her receiving any of the requested payments from O.P. When L.G-P. claimed that one matter had not yet been resolved during two years of mediation sessions, the trial court ordered her to go to a mediator and resolve the rest of their issues.

The appeals court reversed this order. The court declared that the provisions of a property settlement agreement that required mediation and communication should not be enforced after a final restraining order prohibiting contact was entered. The court stated that “[a]lthough returning to court may be inconvenient and costly, alternate dispute resolution methods are not safe when an FRO has been entered” because perpetrators of domestic violence tend to control and dominate their partners. Therefore, the court found, mediation could not be safe even if the environment were secure, or if shuttle mediation were used or if the parties had representation. Interestingly, New Jersey statutes already prohibit mediation in cases determining whether domestic violence has occurred or determining custody or parenting time. Here, the court ordered that mediation should not be used even when an existing agreement called for it, after the court issued a final finding of domestic violence through an FRO.

Canada’s First Online Tribunal Getting Ready to Launch

Shawn Davis, April 10th, 2015

In 2012, British Columbia passed the Civil Resolution Tribunal Act, which established a new aspect of BC’s justice system that will provide online dispute resolution services for strata (condominium) and small claims cases. The Civil Resolution Tribunal (CRT) will be Canada’s first online tribunal and is expected to launch later this year. The CRT will take disputants through a series of online tools designed to help resolve the dispute as effectively and efficiently as possible. For example, disputants first will be led through resources designed to provide information and diagnose the problem. The next phase involves part-to-party negotiation through the online system. For parties that are unable to negotiate a settlement on their own, the next phase offers case management and facilitated dispute resolution. Parties still unable to come to an agreement may move to adjudication, where they will be able to ask the tribunal to issue a decision. Because the CRT’s dispute resolution services will be available online, users will be able to access them from home or from a mobile device, 24 hours a day. To further facilitate access to justice, the CRT will allow “helpers” to aid disputants who do not read English or need assistance with technology. The language access already provided by the court will be made available, and the CRT will also employee multilingual staff, when possible, and make telephone interpretation available.

Last month, Bill 19, the Civil Resolution Tribunal Amendment Act, was introduced in the legislature. The amended act would require most strata and many small claims cases to be diverted to the CRT, expanding its authority. Read the rest of this entry »

Does It Matter If Your Home Loan Is Owned by Fannie Mae or Freddie Mac? RSI Is Set to Find Out

Jennifer Shack, March 26th, 2015

Foreclosure mediation is proving to be a fruitful field for research. As part of the comprehensive evaluation I’m conducting of six foreclosure mediation programs in Illinois, I interviewed those involved in administering those programs. One of those administrators, who also is one of two mediators for a program in central Illinois, said he was seeing a difference in outcomes for cases based on the loan’s investor. Investor restrictions often dictate the outcomes that are available to homeowners facing foreclosure. Government-sponsored enterprises (GSE’s), Fannie Mae and Freddie Mac, have different restrictions than federal agencies, like FHA and VA. For example, FHA’s loss mitigation policies say that homeowners can’t be offered a loan modification if they had obtained one in the previous two years. The administrator believed those differences in outcomes was caused by the differences in regulations. Read the rest of this entry »

Family Law Arbitration Act

Susan M. Yates, March 24th, 2015

People who have been involved with family law are likely to have encountered mediation, especially in child-related issues. But what about arbitration?

The Uniform Law Commission is in the midst of drafting a Family Law Arbitration Act designed to provide a structure for arbitration of family law matters. The draft act provides many of the typical characteristics of arbitration that distinguish it from litigation. For example, parties will enter arbitration through an agreement to arbitrate; parties select and hire their arbitrator; arbitration proceedings and awards can be confidential; and arbitration awards are final, with very limited causes for appeal to a court. Family law arbitration differs from commercial arbitration in some key respects, such as greater opportunities for judicial review of awards determining child custody and support.

Family arbitration is quite dissimilar from family mediation. Most importantly, the arbitrator makes a decision that Read the rest of this entry »

Chicago-Area Settlement Week

Mary Novak, March 16th, 2015

The Illinois Chapter of the Association of Attorney-Mediators (AAM) is sponsoring a Settlement Week from June 1-5, 2015. Illinois mediators will mediate civil cases throughout the Chicagoland area at no cost to the parties.

Attorneys who have cases they would like to bring to Settlement Week can jointly select from a list of participating mediators.  Mediators will include members of the Illinois Chapter of the Association of Attorney-Mediators and other mediators certified by the Circuit Court of Cook County or another Illinois Circuit Court.

The mediations will take place during the five-day Settlement Week and are expected to take a full or half day. The focus of the program is on cases in the civil calendars in the Courts of Cook, DuPage, Lake, McHenry, and Will Counties.

For additional information, visit http://www.attorney-mediators.org/Settlement-Week.