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Just Court ADR

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Archive for the ‘Court Opinions’ Category

In re Lee Part 2: Parental Autonomy vs. Judicial Oversight

Just Court ADR, October 21st, 2013

For the second part of this series on the family court mediation case In re Lee, I’ll examine the laws at issue in the case, then discuss the legal reasoning and policy that the Texas Supreme Court majority and dissent each followed in making their decisions. The crucial statute in the case was Texas Family Code Chapter 153, which relates to custody. Two sections of that code came into conflict in the case.

Best Interest of Child (§153.002) says the best interest of the child should always be the court’s primary consideration in custody issues.

Alternate Dispute Resolution Procedures (§153.0071) includes rules for mediation. Several parts of this section were relevant to Lee’s case. (more…)

In re Lee Part 1: A Child’s Best Interest Comes Second to Mediation Finality

Just Court ADR, October 9th, 2013

The mediation policy and ethics questions encountered in the recent Texas Supreme Court decision In re Lee are enough to fill several blog posts. Over the next few posts, we’ll look at the many policy implications of this remarkable decision. Topics discussed will include:

  • Should the finality of a mediated agreement trump changes for the child’s best interest?
  • In custody policy, do mediation and arbitration differ?
  • When there’s been no intimate partner violence, should settlements be irrevocable?
  • Who decides potential endangerment to a child?
  • What can judges do when parents in mediation act against their child’s interest?
  • When a mediated agreement sets rules over non-parties, what governs their enforcement?

(more…)

Is Getting It in Writing a Universal Best Practice?

Susan M. Yates, August 29th, 2013

The New Jersey Supreme Court recently ruled that agreement terms must be written and signed before the parties leave a mediation in order to be enforced. Experienced mediators are familiar with the push-pull at the end of a long mediation of whether to write up an agreement. On one hand, everyone wants to be done with the mediation and go home. On the other hand, writing enough so that the agreement is clear, and then signing that agreement, can forestall major problems down the line. Now, at least in New Jersey, what should be done is clear: if the terms are not written and signed, it will not be considered an enforceable agreement. (more…)

A Court Clash on Confidentiality and Mediation Policy

Just Court ADR, February 27th, 2013

The Indiana Supreme Court recently declared that the state’s judicial policy supports “robust confidentiality” in mediation. In doing so, the court vacated a Court of Appeals ruling that would have expanded the circumstances in which confidentiality could be broken to obtain evidence. The two rulings reflect a strong contrast in interpretations of ADR rules and judicial policy toward mediation. (more…)

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