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Bar News - November 19, 2014

Family Law: Appellate Mediation Underused in Family Cases, Despite Success Rate

Appellate Mediation 101:
The Rule and Process

Supreme Court Rule 12-A governs New Hampshire’s appellate mediation program.

The court clerk notifies parties that a case is eligible for mediation and, if all parties agree, the appellant must then submit the mediation agreement to the court within 15 days of the acceptance order. If mediation is requested, the parties each pay $200 to OMA for administrative costs. From the total $400, the court pays the mediator $300.Indigent parties may petition the Supreme Court to waive the fee.

Once the agreement is made to attend mediation, the clerk refers the case to OMA. From there, all correspondence regarding scheduling, logistics, and other inquiries regarding mediation is handled by the OMA administrator. After a case is referred to mediation, the Supreme Court holds further processing of the case in abeyance for 90 days. If OMA or the mediator believes that additional time is needed to complete the mediation, the Supreme Court will give an automatic extension of up to 30 days. There may be further extensions, but they are not favored.

OMA selects the mediator for each case from a roster of retired full-time judges and marital masters. The parties then complete the required paperwork and submit it to OMA, which sends this information along with the notice of appeal and appendix to the mediator, who may require additional information. Mediation sessions are held in the conference rooms at the NH Supreme Court. They usually begin in the morning and most last at least four or five hours.

Following the mediation, the mediator files a written report stating whether the case settled in full or in part and what action needs to be taken before the appeal is withdrawn, or whether the case failed to settle and needs to be placed back on the Supreme Court docket for processing. The report contains no assessment or any confidential matters discussed in the course of the mediation process.

In September 2009, the New Hampshire Supreme Court launched an appellate mediation program designed to provide final settlement opportunities to parties in most non-criminal cases.

Since then, 192 cases have been referred to the Office of Mediation and Arbitration (OMA) for mediation. The settlement rate of all appeals that have gone to mediation through OMA in the last three years is about 60 percent.

Despite the success of the appellate mediation program, it is underutilized for domestic relations cases. Of the 192 cases referred since the program’s inception, only 27 have been domestic relations cases. In 2013, the NH Supreme Court accepted 58 domestic relations cases eligible for the Appellate Mediation Program; only eight of those cases opted for mediation. Since the average settlement rate for domestic relations appeals under the OMA in the last three years has been about 63 percent, those numbers represent a lost opportunity.

It is unclear why so few domestic relations litigants and lawyers fail to take advantage of the Appellate Mediation Program.

Deciding to mediate

Because, in New Hampshire, appellate mediation is a voluntary process, a lawyer must help his or her client decide whether to take this direction. A lawyer can report that mediation has a considerable success rate and discuss the advantages of mediation, including the potential savings in time and money and the opportunity to create a realistic solution that goes beyond the parameters of the appeal.

The savings in time and money can be significant. If the Supreme Court decides in favor of the appellant, the result will be a remand to the trial court, resulting in further litigation costs and, in some courts, unendurable delays.

The disadvantage of mediation is usually only short-term – if it fails, the client has spent $200 for the mediation fee and the attorney’s fees for a day of mediation.

Preparing the client for mediation

As with any mediation, preparing the client’s expectations is key to success. To help avoid frustration, a lawyer can explain that mediation takes time, and the client should plan to devote the entire day. Also, there will be long periods of time when the client will not be in active mediation, which is normal. While it may appear to the client that, during these pauses in action, nothing is happening, they should be assured that quite a bit is happening, the results of which will become clear.

It is also helpful to reiterate that compromise is necessary for a positive result. The lawyer and client may want to do a cost-benefit analysis prior to mediation to determine the costs of ongoing litigation as well as the benefits of settling within certain parameters. The mediator does not need to know at the onset what those parameters for settlement are, but the lawyer and the client will need to make that assessment eventually; it is generally most efficient and accurate to do that prior to the mediation session.

To prepare clients for mediation, the lawyer can also clarify that the mediator will most likely be interested in how they are feeling about the emotions surrounding the case (e.g., the loss of a marriage, relationships with children, financial fears) and will not just focus on the legal aspect of the appeal. Because this is domestic relations mediation, those emotional feelings and interpersonal dynamics must often be heard and validated for a party to move toward a practical solution. The lawyer can prepare his or her client for some of the conflicted emotions that they will feel throughout the session.

Case preparation

Every case is different, and the lawyers involved should make their own judgments as to what documentation they should bring to the mediation. Relevant court orders will be vital; a review of the notice of appeal and appendix will tell the lawyer what will be in the mediator’s file. If it is a financial case, a current financial affidavit should always be prepared. Even though the party’s current financial circumstances do not necessarily inform the merits of the appeal, it will be crucial in the process of mediation.

Both parties will complete a confidential mediation statement as part of the OMA scheduling process. It is a form and does not allow for a full and complete confidential summary of a party’s position, but is generally adequate. On rare occasions, a more complete confidential summary is received, either prior to or at the mediation. In most cases, however, an additional confidential mediation statement is not particularly helpful to the mediator, especially if the notice of appeal and appendix are thorough and complete.

Finally, since mediation is not a judicial process, lawyers should know that some mediators entertain pre-mediation questions and comments directly through email, as long as opposing counsel is copied on any correspondence. Patty Cole, the OMA assistant, can assist with questions about the appellate mediation schedule and logistics.

Benefits of the program

According to NH Supreme Court Chief Justice Linda Dalianis, “The settlement rate for mediated domestic relations cases is equal to, if not a little higher than, the rate for civil appeals. The Court is very pleased with the results, not just because it creates greater court efficiency, but because it means that individuals can put this chapter of their lives behind them.”

In follow-up questionnaire responses, litigants also note the benefits of the process. One litigant wrote: “Many thanks for saving money, time, emotion, and state resources.” Another stated: “I believe in this program. It saves a lot of grief and costs to both parties involved.”

The questionnaire responses reveal that the mediations occurring at the Supreme Court result in positive experiences. Litigants who responded generally felt that they had an opportunity to express their opinions and concerns. All respondents understood that compromise was the foundation for successful mediations and believed that, even though they did not achieve their optimal result, the process was fair and any resulting agreement was appropriate. Litigants also expressed appreciation for the creativity that mediation permitted them in fashioning a suitable solution. And every successful litigant expressed relief in obtaining closure to a difficult chapter in their lives.

The NH Supreme Court Appellate Mediation Program appears to be meeting the needs of those domestic relations litigants who have taken the opportunity to engage in this process. I hope that every lawyer representing a client on appeal seriously consider this as an option with potential long-term benefits that far outweigh the short-term risks.

Deborah Kane Rein

Deborah Kane Rein is a retired marital master and conducts most of the domestic relations mediations for the NH Supreme Court. She also has a private mediation practice through Hess Gehris Solutions in Bow, NH.

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