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Bar News - October 5, 2007

A Rush to Mediation? Family Attorneys Voice Concerns



Expressing their interest—and in some instances their concerns—about new procedures and other recent changes in the Judicial Branch Family Division., several attorneys spoke out at the Family Law Section meeting on Sept. 17.  Family Division Administrator Gina Apicelli and Karen Borgstrom, Director of the Judicial Branch’s new Office of Mediation and Arbitration fielded most of the questions that arose during a lively discussion with a group of about 25 lawyers


One of the procedures unique to the Family Division—First Appearance sessions, occurring within 30 days of a filing—has caused considerable consternation among attorneys.  Some believe that neither party in a divorce action is ready to make decisions about child support/custody, property or anything else within such a short time.  “Fast is not always best, even for the kids,” said one attorney.


However, Borgstrom and Apicelli, as well as Judge Susan Carbon and Marital Master Deborah Rein, who also spoke at the meeting, tried to reassure attorneys that the emphasis on getting a mediation scheduled in the first 30 days is to ensure that the parties have an opportunity to address pressing issues—not to try to resolve everything in the case right away.


Mediation is an integral part of the First Appearance process and more than one attorney mentioned sometimes feeling marginalized by mediators.  Borgstrom assured attorneys that they and their clients would not have mediators foisted upon them. “A mediator is supposed to work with you and your client in the way that will help you most,” she said.


While the ADR office is a resource for mediators and for arbitrators, neutral evaluators and parent coordinators, all these groups are held to specific standards in their work in an attempt to ensure quality ADR, Borgstrom went on.   (To view the standards to which certified marital mediators must adhere, visit


Furthermore, the courts provide a list of mediators, along with pertinent information about each one.  “There’s a book of profiles of the mediators to help you in your choices,” said Apicelli.  “If you have a preference, the court will not just appoint someone; you may choose.”


“It’s not a ‘one size fits all’ process,” she added. “While the usual mediation session is about two hours long, a private mediation may run several hours, even all day.”  Mediation can take place at other places, too, not just at  courthouses.


The law creating the Office of Mediation and Arbitration took effect July 1, 2007.  It gives the Judicial Branch the authority to develop programs that will result in greater efficiency in the courts and “increase citizen satisfaction with the legal system, provide affordable justice, reduce protracted and repetitive litigation, and institute dispute resolution processes.”  (Go to for the full text of the law.)


As Bar News has reported in previous issues (see Sept.7 and 21), judicial resources are stretched thin.  In an effort to use these resources most efficiently and provide for early disposition of cases, the goal of ADR is to obtain better outcomes for children and families, since the involved parties have more control over the development of outcomes.  An added benefit is that ADR programs often save both time and money for litigants, attorneys and the courts.


Apicelli discussed First Appearance at some length; a first appearance is designed to occur two to four weeks after the second party is notified of action—and mediation will be available.  Apicelli pointed out that if there is a domestic violence restraining order in place, mediation must be agreed upon by all parties, using a court-approved mediator, and must occur at a courthouse, where security is in place.


 “But if there is no such order in place, getting the two parties to the table early-on can be very helpful—and mediation can address not only child custody and visitation, but also disposition of property or anything else the parties want to discuss,” said Apicelli.  


Mediators try to make sure that both litigants feel that they have a level playing field; this may pose special challenges when one litigant is pro se while the other is legally represented.  Sometimes a mediator may have to go back and forth from one party to the other during the mediation, consulting with just one party at a time.


Some attorneys, however, said that their post-divorce practices have increased because the involved parties have rushed to judgment and then later on find they are not happy with their original decisions.


In an attempt to reassure the attorneys further, Borgstrom said that no matter how they feel about First Appearance, the good news is that if the parties can meet within a 30 to 45-day period, even just to schedule a first mediation to study the issues—and even with no agreement in place—it gets the process started.


Judge Susan Carbon, Supervisory Judge of the Family Division, also offered words of reassurance.  “Parties could request that temporary orders not be considered presumptive.  Furthermore, the goal of an early session is to help put some stability in place for the children whose lives are disrupted in a significant way by this process.”                               

A handout listing First Appearance Highlights provided an overview of the goals of that part of the divorce process and the various resources available to parties, such as:


  • the Child Impact Program, a four-hour class designed to help parents understand the impact of divorce/separation on the children;
  • availability of case managers to explain legal forms;
  • guardian ad litem service, if needed (costs $1,000);
  • mediation (for the entire case or just part), during which a neutral professional speaks with the parties confidentially about important issues involving them and their children ( costs $60 per hour);
  • discussion of legal representation, including unbundled services and pro bono services;
  • parenting plans;
  • child support. 


A list of Merrimack County attorneys offering unbundled legal services as of Sept. 15, 2007 is also provided to parties, along with various forms needed by the litigants.


“Our goal is to always improve what we’re doing,” said Judge Carbon.  “We appreciate your comments.  Please feel free to make suggestions to the court.”


Bar News readers are encouraged to share their experiences and/or observations by writing to: NH Bar News at 2 Pillsbury St. Suite 300, Concord, NH 03301 or by e-mailing Dan Wise at or Beverly Rorick at




Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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