July 05, 2010
More Mediation in Ireland?
Mediation may become more mainstream in family law in
June 14, 2007
Case Law Development: Prerequisites for Order to Arbitrate of Divorce Actions
A three-judge panel of the Michigan Court of Appeals reverses a divorce court's grant of default judgment against Husband based on his refusal to participate in arbitration. An important issue in the case was when the parties separated (the case provides great facts for a hypothetical on this issue). The litigation at trial was complicated by being heard by three different judges, none of whom had provided the necessary disclosures regarding arbitration required by Michigan's domestic relations arbitration statute. The majority held that the trial court erred in granting default judgment in light of is failure to comply with the requirements of the statute regarding written agreements to arbitrate and judicial disclosures regarding the process.
The dissent by Judge Murray agreed that the trial court had not complied with the statutory requirements but would have upheld the default judgment as a sanction for the Husband's failure to comply with a court order. The concurring opinion by Judge O'Connell agrees that, while litigants must obey court orders, court must equally follow statutory dictates. The exchange between the two judges in their opinions provides a lovely example of policy argumentation for our students. For example, Judge O'Connell argues:
plaintiff was ordered to forego recourse to our primary institution of justice, surrender his rights, and submit the substance of his legal dispute to the discretion of an unknown, unelected, unappointed, and largely unaccountable third party. Although our courts have always respected a party's consent or contractual freedom to take a more streamlined approach to dispute resolution, they have never shirked their constitutional duty by requiring litigation in an alternative, unofficial forum. ... Domestic relations necessarily involve personal, rather than pecuniary, issues, so our legal system has been especially slow to sanction extrajudicial resolution of any of these matters, even when founded on the parties' mutual assent.
Johnson v. Johnson, 2007 Mich. App. LEXIS 1480 (June 7, 2007)
December 13, 2005
Case Law Development: Enforceability of Agreements Drafted During Mediation and Admissibility of Mediator Testimony
In a case that family court mediators in many jurisdictions might find surprising, the Tennessee Court of Appeals affirmed a trial court's enforcement of a handwritten agreement prepared during divorce mediation which addressed property division and spousal support issues but did not address child custody and support. Further, the appellate court found no prejudicial error in allowing the mediator to testify regarding Wife's capacity to participate in the mediation.
McMahan v. McMahan, 2005 Tenn. App. LEXIS 756 (December 5, 2005)
Opinion on the web at http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/054/McMahanjdOPN.pdf (last visited December 11, 2005 bgf)
After a seven-hour mediation in their divorce, Husband and Wife signed a five-page, handwritten mediation agreement containing 32 paragraphs pertaining to property division and spousal support. Before the parties and their counsel left the attorney's office, each page of the document was either signed or initialed by both Husband and Wife and by the mediator. Both parties' attorneys were present during the mediation. The handwritten agreement did not address child custody or support issues and included provisions regarding a marital dissolution agreement that was yet to be executed.
Husband's attorney then drafted the formal divorce agreement, which Wife refused to sign, arguing that the mediation agreement was not enforceable because of duress, lack of capacity, and that it was not intended to be an enforceable agreement. Husband then moved to enforce the agreement. The trial court held a hearing at which the mediator testified that Wife's mental condition did not appear impaired during the mediation. The court then enforced the agreement.
The Tennessee Court of Appeals affirmed the trial court judgment. Wife argued that a mediated agreement may not form the basis for a consent judgment when one of the parties has withdrawn their consent. The court agreed with that general principal, but held that the trial court "could, as it did, enforce a contract between the parties." The court further rejected Wife's argument that the written agreement was not a final binding contract because, as the terms in the handwritten document indicated, the parties intended a more formalized agreement would be drafted and executed. The appellate court agreed that "There is no doubt that the parties anticipated that a more formal document would be drafted and signed." but concluded that "This, however, does not mean that the validity of their agreement as to the 32 items was contingent upon this being done." Moreover, the court concluded that " The omission of child custody and maintenance provisions from the mediation agreement does not prove that the parties ddid not intend the mediation agreement to be a final resolution with respect to the 32 provisions included in the signed document.
Finally, the court found no reversible error in the decision to admit the mediator's testimony. Tennessee's rules regarding mediation provide that court certified mediators shall preserve confidentiality and that conduct or statements made during mediation are inadmissible to prove liablity. However, here, the court found "The mediator in this case was careful not to testify to statements or assertive conduct made by Wife. She did not disclose confidential information or attempt to prove liability via conduct or statements made in the course of the mediation.
September 10, 2005
Ontario urged to spurn sharia
Ontario Premier Dalton McGuinty will let down women and help the cause of political Islam if he allows faith-based arbitration to go ahead, anti-sharia demonstrators charged Thursday at an emotional rally in Toronto. The protest was one of 12 in cities across Canada and Europe, as women's and human-rights groups lobbied against a proposal to allow sharia tribunals in Ontario. . . . Earlier this week, the Premier vowed that the rights of women will not be compromised if Ontario allows Islamic law to be used in family arbitration cases under the 1991 Ontario Arbitration Act. The government is reviewing a report by former New Democratic attorney-general Marion Boyd that concluded that Muslims in Ontario should have the same rights as other religious groups to settle family disputes through faith-based arbitration as an alternative to the courts. By Marina Jiménez, Grandmail.com. http://www.theglobeandmail.com/servlet/ArticleNews/TPStory/LAC/20050909/SHARIA09/TPNational/Canada (Last visited September 10, 2005, REO).