Court-Sponsored Mediators to be Paid

MANY OF THE cases that find their way to New Hampshire’s probate courts, particularly estate and guardianship matters, involve disputes among feuding family members. The best way to resolve these disputes often involves more than simply settling the legal matters – it also requires repairing broken lines of communication to help the family members reach a mutually satisfactory end.

"Often the kinds of cases we see are disputes involving people who are going to see each other again – at graduations, weddings, funerals," said NH Probate Court Administrative Judge John R. Maher. "There isn’t simply a dollar amount involved; we’re trying to resolve issues within a family with a more holistic approach," Maher explained.

A new probate court mediation program aims to utilize such an approach to dispute resolution. Using paid mediators, the voluntary program – which is expected to be operational by October 2002 – will be a facilitated mediation program rather than evaluative, which is strictly about money, Maher said. "Money may be important in these matters, but there are underlying issues. This program has a goal of reaching an end that both parties can be comfortable with," he said.

The probate mediation program has the following objectives:

• Increasing access to justice;
• Increasing parties’ participation in court processes and their satisfaction with the outcome of cases;
• Allowing cases to be settled more quickly with less expense to the parties;
• Reducing future litigation by the same parties; and
• Increasing availability of the dispute resolution process to parties.

Gov. Jeanne Shaheen signed into law Senate Bill 64 on May 15, which funds the mediation program by enabling the probate court to use a portion of filing fees collected to pay mediators. As of July 15, all probate entry fees increased by $5 to fund the program.

Mediation of probate cases is a relatively new concept and only a handful of states have such programs. The NH Probate Court hopes its mediation program will become a model for others across the country.

The mediation program will work as follows: During the structuring conference of a probate case, the judge and parties will discuss the availability and possibility of mediation to resolve their matter. If the parties choose to try to have their dispute resolved through mediation, a mediator will be chosen from a pool of eight to 10 mediators with whom the court has contracted to serve statewide.

During mediation, the mediator will work not only to resolve the legal matter at hand, but to do so by encouraging communication between the parties. When a communication breakdown occurs, resolution is often not possible until the relational issues have been addressed. With increased communication, the parties can better explain their own wants and needs in a non-adversarial setting, address relational issues, and learn to perceive each other more fully and accurately. This mediated negotiation helps bring more – and more accurate – information to the process, as parties are less tempted to engage in a strategy of hiding information to achieve a particular end. It also gives the parties a sense that they are actively participating in working to reach a resolution that will meet their competing needs. (For more about the advantages and approaches of mediation, see 42 NH Bar Journal 32, "Mediation in the Probate Court," by Peter Wolfe and Kelly Mullen (2001).)

If the mediation is successful, the mediator will file a report with the court detailing the resolution achieved. If unsuccessful, the mediator will simply note that the mediation didn’t work, without explaining why, and the case will go back on the trial calendar.

Judges, attorneys and professionals from many other fields will be eligible to serve as probate court mediators. "Particularly in facilitative mediation, while it is important to know the legalities of the matter, it is equally or more important to be able to get in touch with what people want to get out of the mediation. Non-attorneys can be highly skilled at that," Maher said.

To qualify as a mediator in the program, a candidate must have completed at least 40 hours of mediation training. Attorney mediators will be required to have a minimum of five years’ legal experience, a substantial portion of which has been in probate matters. Non-attorney mediators will be required to have at least five years of professional mediation experience, including substantial experience in family-related issues.

The probate court will also require mediators to participate in a specialized two-day training program to hone their skills in mediation and in issues specific to probate court disputes. "The training session will be in our subject matter jurisdiction, as well as the roles and protocols of mediators," said Maher.

Mediators will agree to abide by a code of ethics developed for the mediation program that is based on similar ethics guidelines developed by groups such as the Center for Dispute Settlement and the Society of Professionals in Dispute Resolution. The NH ethics code addresses such issues as conflicts of interest, mediator advice, confidentiality, impartiality and parties’ self-determination.

According to Maher, the probate court is in the process of screening applicants to be mediators. Those selected will be notified in August and the two-day training will take place in September. Once training is complete, the program can begin.

Mediators will be evaluated on a regular basis to ensure a high-quality mediation program. After every mediation, parties will fill out an assessment sheet, which will be submitted to the probate court administrative office for review. "This way, we’ll keep in touch with the success of the program," Maher said.

According to Maher, the new program will give parties the chance to have their matters mediated by a neutral party who has experience in resolving contentious situations – which are prevalent in probate court.

"In mediation, you get a trained professional who’s done this before, who is not emotionally involved, and can look at the matter in an objective and dispassionate way," said Maher. "The mediator is not coming in with any family baggage as the parties are, and can give a sincere, honest, objective assessment in an attempt to resolve the matter."

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