OVER THE LAST decade, there has been a steady increase in the use of mediation and other forms of dispute resolution in divorce, custody and other family cases.

Beginning July 1, this trend will be supported by court-ordered mediation. A new statute (RSA 458:15-a) allows the court to send parties in a custody, custodial rights or grandparent rights case to mediation by a certified marital mediator (certified mediator). Referrals may also be made in a re-opened case to modify such order. In this article, I will use the term "family mediation" to refer to the process of mediation by a certified mediator.

The statute lists several factors that would justify the court’s not ordering mediation, including domestic violence, child abuse, the unavailability of a suitable mediator, or that one or both of the parties objects. (Originally, the legislation provided for mandatory mediation, but was amended by then-Senator Edward M. Gordon to be voluntary.)

In cases that the court refers to family mediation, all issues will be mediated, not just custody. The mediators will all be certified mediators who contract with the courts to provide these services. For more information on certified mediators, see RSA 328-C or www.state.nh.us/marital. The Web site includes a list of those currently certified.

Family mediation is another court-connected dispute resolution program like Superior Court Rule 170 and neutral evaluation. By definition, all these dispute resolution techniques are designed to resolve the issues in dispute.

However, family mediation by certified mediators differs in goals and practice from both Rule 170 mediation and neutral evaluation. Rule 170 mediation and neutral evaluation have the goal of resolving the dispute and avoiding a trial. Family mediation seeks to maintain or improve the parties’ relationship to minimize further resort to the court system. Family mediation is intended to improve communication between the parties, to equalize perceived or actual power imbalances, and to reach a fair result that will work for the parties in the future.

In family mediation, there are usually several sessions of about two hours each. While styles vary from mediator to mediator, meeting separately with one party (caucusing) is generally infrequent. The mediation process happens with everyone present in the room. The parties themselves generate the options and make the decisions, with the certified mediator facilitating the process.

By statute (RSA 328-C:5), each certified mediator must have at least 48 hours of mediation training, including eight hours concerning domestic violence, and 20 hours of internship with a certified mediator. (Until recently, Certification Board administrative rules called for 60 hours of training and 60 hours of internship, so most of the currently certified mediators have that background.) The certification is good for three years; for renewal, the certified mediator must have 24 hours of continuing education, including three hours concerning changes in the law applying to divorce.

The sort of mediation commonly practiced by New Hampshire lawyers who are not certified mediators might be called "evaluative mediation" or "shuttle mediation." "Evaluative mediation" means that the mediator gives an opinion on the outcome of the case. For example, the mediator might tell the parties that the court is likely to award alimony for three to five years. "Shuttle mediation" means that most of the mediation is conducted with the parties (each with counsel) in separate rooms. The mediator goes back and forth, carrying offers and responses between the parties. Both evaluations and shuttling are typically used by Rule 170 mediators, neutral evaluation volunteers, and the lawyers offering similar services for a fee. This sort of dispute resolution is usually conducted in a single session of two to six hours.

The differences in goals and procedure of family mediation versus evaluative/shuttle mediation result in differences in the role of parties’ counsel. In evaluative and shuttle mediation, lawyers are present and often do most (or all) of the talking for their clients.

There is no need for counsel to be present at family mediation sessions. Family mediators advise clients to take legal questions to their lawyers, or to consult a lawyer if they have not hired one. Parties often consult their lawyers between mediation sessions. In family mediation, lawyers are not present, but advise clients before mediation and between sessions, and review and advise on the written agreement. In hundreds of hours of mediation in my family mediation practice, no party has ever brought a lawyer and no lawyer has ever asked to be present.

A written mediated agreement is traditionally called a "memorandum of understanding." Due to objections to this term from some courts and judicial officers, many mediators now use the terms "permanent stipulation" or "mediated agreement." Like lawyers, most mediators – whether lawyer or non-lawyer – use standard forms that they adapt for each case. Some non-lawyers use a form based on the one in the Bar Association’s "Pro Se Divorce Booklet." Generally, the written form of the mediated agreement is prepared outside of the mediation sessions and sent to the parties for review. (I fax copies directly to parties’ counsel so they can advise their clients.)

Family mediation is sometimes done by a pair of mediators called "co-mediators." Co-mediators are sometimes a certified mediator and an intern, or two certified mediators.

Family mediators work in various practice settings: non-profit community mediation services; solo or group private mediation practices; or as a sideline to another professional practice (law, therapy or guardian ad litem). As New Hampshire Bar Association Ethics Committee Opinion 1993-94/4 has directed that the practicing attorney/mediator must take all steps necessary to separate the legal practice from the marital mediation practice, some lawyers who are certified mediators operate their mediation practices under trade names. John Cameron’s Mediate First, LLC, or Honey Hastings – Professional Mediation, for example.

The new court-referred mediation begins in July. For at least some divorcing couples, this dispute resolution program will prevent custody fights. Lawyers handling divorce and custody cases need to familiarize themselves with this new option so they can appropriately advise clients.

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