Domestic Diversions

In 1984, many Friend of the Court employees in the State of Michigan were trained to be mediators by the State Court Administrative Office, and attendees were given a test at the conclusion of the training to record what had been learned during the previous several days of lecture and role play. I do not know if these scores were ever preserved anywhere, or used by anyone. What I do believe is that the Friend of the Court employees who stayed in the court system and conducted pure mediation under the statute are probably some of the most experienced mediators in the State. The court mediators created their own organization, MACM (Michigan Association of Court Mediators) that provides inexpensive training annually to all the members, bringing in reknowned speakers/trainers like John Haynes and Donald Saposnek. Every other year Michigan Judicial Institute offers advanced mediator training to Friend of the Court mediators. In addition, many Friend of the Court Mediators belong to court associated national organizations that also provide training. It is my position that the Michigan Courts have some of the best-trained domestic relations mediators on its own staff within the Friend of the Court Offices.

The struggle has been to get all the players, including judges, mediators, attorneys and client/customers to appreciate the role of mediation in domestic relations cases. What many Friend of the Court Offices have done is hybridized the mediation process making it similar to “muscle mediation”, a phrase coined by another Friend of the Court staff person. The muscle mediation approach, often called conciliation, serves many purposes and fulfills the needs of the court system in many ways. It allows the parties the freedom to create their own arrangements if they reach an agreement, it provides the court and the attorneys a written report and recommendation if the parties do not reach agreement, and it allows the exploration of alternatives that may not have been considered before. Unfortunately, many people think that this is true mediation, when in fact it violates the confidentiality that is so important in the process of mediation. Certainly, there is an important place for conciliation or other muscle mediation processes, but it should not be construed to be the pure mediation defined in Michigan Statute (MCLA 552.513), or Court Rule (MCR 3.216).

In Kent County, we have been blessed with many things occurring simultaneously after the Court Rule was enacted that set the stage in this Circuit. We had a Court Administrator at the time that had the foresight to see the potential of mediation serving a major role in processing cases and he organized the committee to develop the Kent County Circuit Court ADR (Alternative Dispute Resolution) Plan. The committee was quite large, but representative of the population that would implement the process including attorneys, mediators, court personnel, judges, and mental health professionals. Many volunteer hours were donated to write the local plan. A requirement of the Plan is to have an Oversight Committee that is composed of appointees to implement and monitor the ADR plan. This committee is very active and these individuals have also donated many hours.

The Court Rule requires specific training, and then specific experience conducting mediation under supervision before someone can qualify to be on the ADR list. The training was available, but obtaining the experience could have been a problem if the court had not turned to the Friend of the Court experienced mediators who met the Court Rule requirement of education, training and experience. The Court referred domestic relations mediation cases under the court rule to the Friend of the Court, and at no cost to the parties or their attorneys, the service of Court Rule Mediation was offered with a co-mediator or observer present. The mediator seeking to gain the required experience would co-mediate for no fee. The attorneys or mental health professionals that co-mediated often continued to volunteer their services to gain more experience long after they had met the requirement under the Court Rule.

After the process of referral was developed which provided for the Order of Referral right at the bench, the judges were able to easily make the referral, then gain a better understanding of the effectiveness of mediation in some cases, and the parties benefited by receiving the service at no cost. During the transition of getting mediators qualified, educating people about the process, and demonstrating the effectiveness of mediation to private attorneys, the private mediators have worked with the court to design a case flow that will have the court ask the question early in the case processing if the case is appropriate for mediation. If it is, the parties can select their own mediator, or the court will assign a mediator from the list on a random basis according to the Plan.

If the judges and administrators had not been willing to wrap the Friend of the Court into the development and implementation of the plan, then there would probably be fewer qualified mediators available as resources to the court. The Friend of the Court has mediators qualified under the Statute and the Court Rule. This allows the court the use of discretion whether the parties in a specific case can afford to pay a mediator. If they cannot, then the court can refer to the Friend of the Court and the qualified mediators will provide the service, or the Friend of the Court can locate a qualified pro bono mediator to mediate the case.

There is still a lot to complete before domestic relations mediation will be fully integrated into case processing, but we have a Plan, an Oversight Committee, a substantial list of qualified mediators, and many dedicated people. With the cooperation of the Judges, the Family Law Section of the Bar, the Friend of the Court and Court Administration, a great deal has been accomplished in providing a complete ADR Plan in Kent County. Over 100 Court Rule mediations have been conducted through the Friend of the Court providing the internship opportunity. This translates to exposure of the process to many customers/clients, and many private attorneys. The Friend of the Court continues to provide the services of statutory mediation, Conciliation and Troubleshooting, and private practitioners continue to provide the service of arbitration. We simply added another resource for the court to effectively process domestic relations cases.

What We Have Learned

Something that I think we always knew was that cooperation would get something for everyone. The Friend of the Court mediators benefited from the exposure to the attorneys and mental health professionals during the internships. Relationships were built and better communication networks were developed between different organizations.

Since statutory mediation is limited to custody and parenting time, the Friend of the Court mediators learned a lot about property issues and other non-child related issues that must be resolved to settle the case. It is important in facilitative mediation to know the areas that you, as a mediator, must advise the parties to communicate with their attorneys about and obtain legal advice. It was interesting to watch some of the mediator/attorneys struggle with the change in roles and how they wanted to provide legal advice but could not.

Child support is discussed during Court Rule mediation after custody and parenting time have been agreed upon. What I experienced is that most couples wanted the information about the child support formula for information purposes only, but that they often elected not to follow the formula. Interestingly, the parents usually agreed on an amount that was higher than that recommended by the formula, and that the amount was based on the budgets that we had discussed where the goal was to meet the financial needs of the child and both parents. In a review of the cases that I mediated, it appears that support is being paid regularly, and the Friend of the Court does not have to expend resources for collection.

We have learned that the earlier that mediation is offered, the more issues can be resolved through the process. That is not to say there is no benefit in later stage mediation as well, but there is often a limit in the areas that can be resolved because the conflict has left open wounds that are sensitive. We learned that mediating as many issues as possible, limiting what needed to be decided by the court, had a positive effect on the parties in that they retained some authority over how they would live their lives. It also reduced the time the court needed to be involved in making decisions on that case, or in investigating the issues.

What we learned about parenting time is that the parties were less likely to want a very specific schedule but would agree on a schedule that allowed flexibility. As a mediator, asking how they would resolve disputes should they arrive opened the door for discussion about a specific schedule should they require one in the future, or the insertion of a provision for future mediation in the event of disagreement. Many people are very interested in preserving the cooperative relationship with the other parent that develops during mediation.

It has been my impression that the customer/clients who were referred to mediation under the court rule found it out of context for the Friend of the Court to be involved in such a positive process. Keep in mind that many of them had only “heard” about the Friend of the Court and that they had not really been involved with it yet. Having mediation offered through the court is good for the reputation of the Office and the court in general. Most customer/clients expressed gratitude about having the service available, and that they were some of the lucky ones who had been sent to mediation. Overall, I think the experience by the client/customers was a positive one.