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Just Court ADR

The blog of Resolution Systems Institute

Posts Tagged ‘mediation’

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…)

New Perspective on Domestic Violence and Mediation in Montana

Just Court ADR, April 26th, 2013

Should domestic violence survivors and their abusers ever undergo family court mediation together? This is one of the thorniest debates in the ADR community. This week, the Montana Legislature weighed in with a qualified “yes.” The legislature passed a bill to revise state mediation laws on domestic violence. The bill, HB 555, enables survivors to give informed consent to mediation, while requiring specialized training for eligible mediators. This reverses the state’s prior understanding, in which a suspicion of any past abuse between parties, whether physical, sexual, or emotional, created an “absolute bar” to any court-ordered mediation. The history of the Montana mediation rules captures the evolution of thought on this topic, from rule creation to court re-interpretation to legislative refinement. (more…)

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