In the world of ADR news, California’s mediation confidentiality provisions are achieving “Kardashian”-like levels of fame at the moment, with a comparable amount of dramatic fireworks to boot. Since 1993, California has included in its Evidence Code provisions which guarantee mediation confidentiality and greatly limit the discovery and admission of evidence procured from mediations. However, between an initiative to rewrite the California Evidence Code and a recent decision in Delaware’s influential Court of Chancery, these protections face a challenge, one that threatens to jeopardize the reliability of mediation as a viable dispute resolution process in the Golden State. (more…)
Archive for the ‘Court Opinions’ Category
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.
Our monthly e-newsletter Court ADR Connection has updates on RSI’s activities, cutting-edge ADR research, and the latest court ADR news from across the country. As we wind down 2014, I thought it might be fun to take a look at a few of the most significant news stories we reported on this year.
Detroit Bankruptcy Mediated in “Grand Bargain”
The most-watched court ADR news story of 2014 may have been the mediated settlement that resolved the City of Detroit’s municipal bankruptcy. Without doubt, this riveting drama of competing interests coming together to form a “Grand Bargain” will be studied and discussed for years to come. We reported on facets of this story a few times, both here in our blog and in our newsletter: (more…)
In a settlement conference, what is the value of having someone present with full authority to settle? If one party lacks the authority, it can result in aggravation, wasted court fees, and lost time for trial preparation. American Family Insurance (AFI) recently learned this to their cost in a dog-bite case in Washoe County, Nevada. Because Judge Janet Berry did not believe the insurers had complied in good faith with her rules on authority to settle, she found the company in contempt and sanctioned them $50,000. (more…)
In this final installment of our series on the Texas family mediation case In re Lee, we’ll examine the implications of the holding upon parents, judges and mediators. To recap, the Texas Supreme Court ruled in In re Le that a trial court judge must enter a mediated settlement agreement (MSA) two parents had made arranging custody for their child, even though the judge believed the MSA was not in the child’s best interests. So what does the ruling mean for the different stakeholders in family mediation? (more…)