Family Law Prof Blog

Protecting Kids in Divorce Mediation

From Lawyers.com:

Going through a divorce can be an emotional time for all parties. When children are involved in the divorce, there can be special challenges. Many divorcing couples share the primary goal of protecting their children from additional stress during this time. For this reason, divorcing parents often choose the mediation process over a traditionally litigated divorce.

Mediation can be less stressful on children for several reasons. Most mediations are held at neutral locations, not in courthouses, which can reduce the level of anxiety, should a child need to appear. The divorce mediator will be specially trained to help both sides with fair negotiations and required compromises.

Mediation often reduces the combative nature of divorce, by allowing the parties to focus on the children’s interests over their own. When engaging in the mediation process, parents can follow a few simple rules to help their children during this difficult period. Many courts in Maryland require mediation as part of the divorce process. Many people choose to hire a mediator outside of the court system, prior to a court filing. Both can be very helpful.

Read more here.

More Mediation in Ireland?

Mediation may become more mainstream in family law in Ireland.  Read more here.

MR

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)

Read the opinions  (majority) (concurrence) (dissent) (last visited June 14, 2007 bgf)

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)

Continue reading

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).