Mediation – Part Two
Agreements settling matrimonial disputes through mediation have suffered scrutiny for being non-compliant with New York State Domestic Relations Law. The first part of this article, which was published in the July Newsletter, provided a general overview of the mediation process, detailing the how it is initiated and who is involved: the mediators, counsel, and the parties. The aim of the first part of this article was to illustrate how mediation is successfully based on the matrimonial knowledge and domestic relations experience of the professionals involved.
The second part of this article addresses mediation from a more substantive standpoint. Attention is focused on Rules 3, 6, 8, 10, 11, and 12 as set out in the Matrimonial Mediation Program through The Local Rules of Court for the Ninth Judicial District, Supreme and County Courts, Matrimonial Part. Specifically, this article discusses the ways in which these Rules not only enforce party agreements, but make the mediation process itself, in these difficult economic times, a remarkably efficient vehicle to enable a couple to dissolve their marriage more cost efficiently.
Mediation Fees: Rule 8 and Rule 6
In general, there are no fees attached to the Matrimonial Mediation Program. Instead, under Rule 8, parties who are referred to mediation are required to compensate the Mediator for any services rendered after the initial, free 90-minute session and “for time spent reviewing materials submitted.”
Overall, under Rule 8, fees must be paid in advance of any session that takes place, with the parties signing a fee agreement “before commencing any sessions for which compensation is required.” As far as rates are concerned, referred Mediators, under Rule 8, may not charge in excess of $300 per hour. Any fee arrangement arrived at within this limitation must be put in writing and “include the ratio at which the fee will be divided between the parties.”
For their part, Mediators “are encouraged to work on a sliding scale [and] to take into account the parties’ financial circumstances.” Indeed, Rule 6 aims to make the mediation process affordable, as it notes that if parties “wish to go to Mediation but cannot afford it, the Coordinator can assist [those who] qualif[y] . . . to find a Mediator who may take their case for a reduced fee.”
Confidentiality in Mediation: Rule 10, Rule 11, and Rule 12
In terms of substantive issues related to mediation, the Rules of the Matrimonial Mediation Program set out various parameters. One very important parameter—as stated in Rule 10—is that “all oral, written, or other communications made during the course of the [m]ediation by any party, Mediator or any other person present [is] immune from disclosure in any present or future judicial or administrative proceeding.” Likewise, “all information generated in or in connection with the [m]ediation—including memoranda, work product or case files of a Mediator—shall remain confidential and not be subject to disclosure.”
Nothing about the substance of mediation, such as the weaknesses or strengths of the parties’ cases or the relative willingness of the parties to discuss settlement proposals, can be revealed to the referring Justice, Court-attorney referee, or any other person by the Mediator or any party or attorney. Nor will any party or attorney reveal the outcome of the mediation process to the referring Justice or any Court personnel, including Court attorney-referees—unless both sides agree to disclosure.
In general, the only information from mediation sessions that can be disclosed relates to: (1) attendance of the parties and their counsel, which is reported to the referring Justice or Court attorney-referee; (2) specific individual communications for which the parties waive nondisclosure; (3) signed negotiated agreements, which are submitted to the Court for review; (4) credible threats of serious and imminent harm, which are reported to the appropriate authorities and/or the potential victim; and (5) communications related to allegations of child abuse or neglect, which are required to be disclosed pursuant to Social Services Law § 413.
In terms of child abuse and neglect, under Rule 11, if an allegation of such “is made by any party during [m]ediation, the Mediator will safely stop the mediation process . . . [and] report to the referring Justice or Court attorney-referee.” Likewise, if an allegation of domestic violence is made during mediation, under Rule 12, the Mediator will “safely stop the mediation process, meet with each party individually where appropriate to learn as much as possible about the circumstances, and consult with the Coordinator [for the Mediation Program]. . . as to whether to resume the process.” Allegations relevant to domestic violence, however, are never disclosed to the referring Justice or Court attorney-referee, as the Coordinator “will give victims information regarding their rights in the form prescribed in Family Court Act § 812(5).”
The aforementioned ruled should be strictly adhered, even by a privately retained Mediator.
The Outcome of Mediation: Rule 3
Within five business days of the conclusion of the mediation, which occurs—under Rule 3—“whenever after the initial session one party, both parties, or the Mediator decides that the process has ended,” the Mediator sends a Report (‘Report of the Neutral’) to the Coordinator and counsel for the parties, stating: (1) the date of the initial session and whether each party and counsel appeared . . . ; (2) the dates of any subsequent scheduled sessions . . . ; and (3) whether the parties reached partial, complete, or no agreement on the issues.”
While parties sometimes return to court from mediation because they cannot come to an agreement, many settle their disputes and refer their settlements over to their attorneys for review, if done properly. Overall, agreements arrived at through mediation are not easily overturned, as they are upheld under contract law principles. Case law in New York states that where the provisions of a contract entered into through mediation are clear and unambiguous, and where the intent of the parties can be gleaned from the four corners of the document, a court will uphold the agreement and interpret it in accordance with its plain and ordinary meaning to the exclusion of any extrinsic evidence varying its terms. In the matrimonial context, the only proviso in this respect is that separation agreements entered into via mediation are subject to heightened scrutiny because of the fiduciary relationship between spouses.
Though the mediation process has encountered some setbacks in the production of agreements that are arguably inequitable or in violation of public policy and statutory/case law due to the failure of having clear, explicit language to illustrate that deviation and/or waiver of standards set out in New York State Domestic Relations Law was made with the full and educated consent of the respective party and/or parties, the topical knowledge and experience of matrimonial trial attorneys who serve as mediators should unequivocally eliminate this concern and create positive mediation experiences. As the first part of this article illustrated, the actors involved in mediation must be knowledgeable and experienced in matrimonial matters. Parties and counsel are always free to go to a mediator of their choice privately, and frequently do, outside of the mediation program and its parameters.
Co-Authors: Judith E. Murphy and Kristen L. Woodford