Bar News - May 18, 2007
Pro Bono Mediation Pilot Project Underway in Laconia
By: Anita S. Becker
The New Hampshire Pro Bono Mediation Project, a partnership of the Family Division and the NHBA Pro Bono Referral Program, is now underway in the Laconia Family Court matching eligible low-income clients in mediated family disputes to pro bono attorneys offering discrete legal advice and agreement review.
“The Mediation Project is a new endeavor that calls for attorneys to provide limited-scope legal services to clients engaged in court-ordered mediation of family law cases,” says Ginny Martin, executive director of the NHBA Pro Bono Referral Program. “Typical services include providing legal advice, coaching, and reviewing mediated agreements. The goal is to help families create more sustainable agreements they fully understand which are in the best interest of their children and will last over time.”
Made possible with funding from the NH Bar Foundation’s IOLTA Program, the project is starting at the Laconia Family Division with the goal of expanding it to other courts over time. “Laconia is a great place to start because there is already a strong panel of Pro Bono family law attorneys in Belknap County and surrounding areas, including some who are also certified marital mediators,” explains Martin.
The recent rule change allowing attorneys to offer limited-scope legal services is an essential element to the growth and success of the program and, ultimately, an anticipated decrease in pro se litigation. “The unbundled rules help us to develop innovative, discrete programs such as this one,” says Martin. “The rules allow attorneys to handle part of a case, such as the mediation process only, instead of committing an attorney to providing full representation. “Now an attorney can provide services for just the mediated portion of a family law case; in the past, attorneys were required to handle the entire case, including all court hearings, which can be time-consuming.”
The project was initiated to meet a public demand. “This was an area of need we’ve learned about over the years from attorneys and clients,” Martin says. She believes the program benefits all involved—the court, clients, and attorneys—in that: “It provides lawyers a practical opportunity to provide important, discrete, time-limited services to people at a critical point in their family law cases; clients who would otherwise go without the advice and counsel of an attorney.”
“While not appropriate for every case or client, limited services provided by attorneys in the mediation context can add real value and make an important difference for people going through mediation,” Martin said.
“We have been working in close partnership with the Family Division so that the court would have the information available to provide to eligible families entering mediation and to ensure that the program meets the needs of the participants,” she adds.
The Pro Bono Program’s piece of the pie is the recruitment and training of volunteer attorneys, review of applications for services and the referral of eligible clients to panel attorneys. The court, through the marital master and clerk’s office, will provide applications and a brochure outlining the guidelines and availability of the program to families entering mediation.
The application for Pro Bono Limited Legal Services for Mediation is now available through the Laconia court. Completed applications will be directed to the Pro Bono Referral Program by the client or the court (if necessary), where it will be reviewed and a local attorney recruited to take the case.
Gina B. Apicelli, an administrator for the Administrative Office of the Family Division, said that the court began working with the NHBA Pro Bono Program when it began developing its universal limited appearance form for unbundled legal representation, a standardized form used at each level of the court system. “You can have a rule but if you don’t have a practice that matches it, what good is the rule?”
Another influence in the creation of the program was the approval in October 2005 of RSA 461-A which emphasizes mediation in family law cases.
“The mediation process is a fabulous alternative to litigation for many families and we are 100 percent in support of it,” says Apicelli.
Pro Bono attorneys participating in the project are not actually mediating cases; this is done by certified marital mediators. They are simply providing limited-scope services in conjunction with a court-ordered mediation process. Services typically include providing legal advice, coaching, attending one or more mediation sessions, and legal review of a client’s mediated agreement.
“Mediators cannot focus on the needs of one client over the other, they must remain neutral. Their job is to facilitate the communication process between the parties,” explains Apicelli. A person needs an attorney during the mediation process to have someone available for legal counsel who can focus on his or her individual interests.
“When I was approached to be part of this initiative, I said, ‘of course,’” says Attorney John Cameron, a Laconia sole practitioner and certified marital mediator who is the principal of MediateFirst, a mediation service. “I got involved because it was a natural extension of my pro bono work.”
Cameron, who was awarded the Pro Bono Referral Program’s 2007 Pro Bono Attorney of the Year for Belknap County, says that the best way to give back to the community is through pro bono work and supporting the NH Bar Foundation. He says that attorneys who actively get involved in pro bono work do more than help the public. “The main reason it is important to provide these services is because there are people out there that need them, but, at the same time, it is also good for the image of our profession.”
“As a certified marital mediator, I always encourage my clients to seek the counsel of other attorneys to review their agreements because as a mediator I must remain neutral,” explains Cameron. “The mediated agreement needs an attorney review whether the mediator is an attorney or not.”
A mediated agreement may be drafted by mediators and the parties as an informal working agreement or filed with the court as a legal contract. When an agreement is incorporated into a court order or divorce decree it becomes legally binding and subject to the approval of a judge. Any change to an agreement previously approved by a judge must be filed with the court in order to be legally binding. Issues that cannot be resolved in mediation can be returned to the court for resolution.
Cameron says that the unbundling of legal services can go a long way in creating lasting mediated agreements—especially in cases involving children. “If a mediator says this agreement should be reviewed by your lawyer, or to consult with your lawyer on this issue, now people will have someone there that can help them through the critical parts of the process. This should open up a door for someone who might otherwise resort to the litigation process.”
“There was an unmet need for families using the court and we hope this program will satisfy that need,” says Apicelli. “We expect that through this program more parents will avail themselves of attorneys during the mediation process.”
Eligible parents in a dispute would each have to apply for separate Pro Bono Program attorneys. In the traditional pro bono program, if both parties are eligible, then only one party can receive assistance. “What makes this program so special,” says Apicelli, “is that due to the limited scope of the legal representation, if both parties qualify financially, both are eligible to be paired up with an individual pro bono attorney.”
An important aspect to the program is that the court and the Pro Bono Program are providing an expedited service for parents in need.
“The court feels this is an excellent resource,” said Apicelli. “It is important that there is a steady, seamless flow of volunteer attorneys involved because we don’t want to make parents have to wait several months for representation. If it looks like parents are gaining momentum and demonstrating good-faith in mediation, we do not want to stall that effort because no attorney is available to help them.”
Potential participants will get information on the Mediation Project and the application for Pro Bono attorney representation through both the court and the mediator. “The first person to inform them of the program is the marital master during their first appearance in court,” explains Apicelli. “The application and a brochure will be in the packet of documents they get when they sign up for mediation. The mediator also can provide them the information.”
At presstime, the brochure and application had just begun to be given out in court –the initial first hearing where the program was explained was on April 23 by Marital Master Michael Garner—so, it is too soon to tell how many people will actually take advantage of the optional, free service. Of the family law cases before the court, most are candidates for mediation, according to Apicelli.
The project is not limited to new cases coming through the Family Court. Laconia area mediators have all been trained on the program and are already explaining it and recommending it to their existing clients.
“It breaks my heart to see someone represented and someone else pro se because these types of family law cases are often so complex and emotional that if both sides had the benefit of representation there could be a different, and perhaps better outcome,” says Apicelli.
“The lawyer’s voice and role in this is so essential and so critical to a successful outcome,” said Apicelli, a Bar member herself. “I hope more attorneys, especially those with family law experience, would explore limited representation. I think this could only help. There is just this natural fit between unbundled legal services and the mediation process.”
(Referrals for unbundled services in family law cases, including mediation, are available through the Bar’s Full- and Reduced-Fee components of the Lawyer Referral Service.)