Court of Appeals testing new mediation process


A new Court of Appeals mediation program for family law cases is saving thousands of dollars for the litigants and for the court. About half of the first twenty cases to go through the program were successfully settled, according to John Kostouros, director of the state court information office. That saves the cost of transcripts (which run to hundreds of dollars), of lawyers’ fees, and of court and judicial time. (Other cases are still making their way through the mediation process.)

The pilot program for mediation in family law cases was launched in the September 2008. The Family Law Appellate Mediation program is funded for a one-year trial period, through a $30,000 grant from the State Justice Institute for technical assistance, training mediators, design and development, and evaluation.

Mediation is a process by which a neutral third party or mediator helps two opposing parties and their attorneys draw up a solution agreeable to both parties. According to the state courts website, this process has the “capacity to expand traditional settlement discussion and broaden resolution options, often by exploring participants’ needs and interests that may be formally independent of the legal issues on appeal.”

“We have launched this mediation program with a strong belief, based on our research and the experience of other pioneering states, that this process will improve outcomes for families by reducing the costs of litigation, resolving cases more quickly, diminishing the level of painful conflict, improving judicial efficiency, and focusing on healing rather than further damaging fundamental family relationships,” said Court of Appeals Judge Harriet Lansing. Judge Lansing chairs a work group of judges, court staff and law professors who have been meeting regularly to create a program that would strengthen alternative dispute resolution processes in the district courts within the state’s appellate system.

“Sometimes when people are appealing issues from the district court, there are other issues that the court can’t address. [Through mediation, there are] better results for families with better outcomes,” explained Aimee Gourlay, a consultant from Hamline University Law School and member of the work group.

The pilot program is limited to family law cases such as divorce, custody, child/spousal support, and parenting time. When cases are appealed from district court, they are diverted into the pilot program. Litigants can opt out of the program if they wish to proceed with the standard process. “In the case of domestic violence, [mediation] may be inappropriate for safety reasons, but that choice is not taken away,” said Gourlay.

The program is designed to decrease conflict levels for families and achieve more satisfying outcomes for the litigants, as well as seeking quicker stability for children.

“We found that giving families another opportunity to be self-directed would be good for families,” said Abbott. “Mediation is traditionally a process used before the trial, finding that parties coming for mediation before the case is filed benefit from some form of dispute resolution.”

“We’re able to deal with issues that are driving the conflict directly and parties are making their own agreements,” said Andrea Niemi, a family law attorney and another mediator for the program. “And people do a better job sticking with the agreements; they’re more likely to comply,” she added.

“These cases can take a long time and can be very expensive and time consuming,” said Ellen Abbott, one of the program mediators. Of the 245 family law cases filed with the Court of Appeals in 2006, litigants waited, on average, more than 280 days before an opinion was released. In the mediation process, time from filing to decision could be as little as 70 days.

A press release explaining the pilot program says that costs are substantially limited: “Referral to mediation takes place after the statement of the case has been filed and the filing fee has been paid, but before the briefing stage and before litigants incur the substantial costs of ordering transcripts from the district court where the case originated.”

Abbott and Niemi are two of twelve mediators who have helped to develop the mediation component of the program. Each mediator had to apply for the program and agree to serve on a sliding-scale fee basis, paid for by the parties. In some cases, litigants are only responsible for the $25 filing fee.

“The project has been a remarkable example of how a court can fashion a positive initiative working with members of the bar and law professors who have contributed time on a pro bono basis,” said Minnesota Court of Appeals Chief Judge Edward Toussaint.

But the mediators say they cannot remain pro bono for long. “The program will probably continue after the first year pilot if they are willing to find people willing to do cases at a lower rate,” said Niemi. “I’d be willing to do sliding scale and pro bono as long as there are some paying clients.”

“They won’t hire anyone right now because there’s a crisis in funding with the courts,” said Abbott. The grant only lasts one year, and the future of the program beyond that time is uncertain.

Evaluation of the program is being conducted by a Hamline law school professor and a class of law students who have filled in as research assistants and helped to develop questionnaires for the participating litigants and lawyers. The work group continues to meet on a regular basis to monitor the process and to discuss and respond to feedback from litigants, counsel, and the mediators. In August 2009, the work group and the full Court of Appeals will formally evaluate the program and consider future changes.

“Ultimately, we’re hoping to reduce the [Appellate Court’s] case load,” said Niemi.

“I’ve settled all four cases that I’ve done,” added Abbott.

Summing up the court’s response to the program thus far, Chief Judge Toussaint released this statement: “We have been greatly encouraged by the enthusiasm that litigants and lawyers have expressed for the project and the willingness of all of the participants to work together to implement a program that promises a more satisfying approach to family law appeals. Based on what we are seeing, this method has a great potential to more quickly arrive at a mutually acceptable solution that will likely serve these families well for a much longer period of time.”

Lauretta Dawolo Towns is a freelancer for several local community and ethnic news outlets. She is also a mentor in the Big Brothers, Big Sisters program and a consultant with the Girls in Action program at Patrick Henry High School. Towns is a resident of the McKinley neighborhood in North Minneapolis where she lives with her husband and newborn son.