- Problems with e-filing, especially for people from lower-income backgrounds. - Receiving memos / communication from one side and not the other

Transcription

1 State Curt Training Mediatin: Beynd the Basics Jhn Lande and Susan M. Yates Nvember 3, 2017 Linked frm Stne Sup: Takeaways Frm New Hampshire Mediatin Training Mediatins frm Hell - Prblems with e-filing, especially fr peple frm lwer-incme backgrunds - Receiving mems / cmmunicatin frm ne side and nt the ther What are the implicatins abut impartiality? - Hw d yu deal with mems that cme the night befre mediatin that starts the next mrning? I m sure yu were busy, and yu likely knw that it is hard fr me t have read it befre the mediatin. Read the first sentence r paragraph f each sectin, ask the attrney what yu might be missing. In advance, send ut t say, If yu want the mediatr t read this, send it at least 3 days in advance. Otherwise, yu re ging t have t educate me. Or, Shuld we push this ff? Talk abut yurself: I will have a hard time reading this in advance because... S help me ut. - Financial statement, even frm lawyers, desn t arrive seven days in advance, r ever. - Culd we d a CLE with the Bar t help address this prblem? Perhaps d a fcus grup with attrneys, mediatrs, curt administratrs t cme up with an interest-based slutin abut mediatin mems. Mediatins frm Heaven - Intractable parties settling. - Peple are prepared fr varius situatins, especially the unexpected. 1

2 - Feeling detached frm mediatr as respnsible fr settlement. Als, being detached frm whether the parties settle altgether. - Parties fcusing tgether n what they bth need and what their kids need in family cases. - When an attrney says [t his r her unrealistic client], The Curt will never d that, let s mve ff f that. Dealing with Emtins Easier fr us t identify the emtin, rather than identifying the underlying frce driving the emtin. What des mney really mean in a mediatin? - Represents hard wrk. - Implicates backgrund f pverty. - Feels like lsing nt t get what yu expect. What d yu d if smene cries in mediatin? - Give tissues. - Ask them if they want privacy. - Watch yur wn discmfrt and dn t act simply t make yurself mre cmfrtable. What strategies have yu tried, and hw did they wrk? - Smetimes it s hard nt t fill silence because it s awkward, but silence can be the pwer they need. - Acknwledge the emtin. - Nt turn away, s yu dn t shw embarrassment. - Assure that they dn t have t be srry fr sharing emtin. - Use nn-verbal cmmunicatin. - Set grund rules. 2

3 Hw d yu deal when smene t whm it wuld be imprtant t express the emtin is nt there? - Remain humble. - It is a challenge when there is distrust. Dn t necessarily name it as an emtin, but deal with it in caucus. - Ask fr mre infrmatin befre acknwledging emtin. - Be thughtful abut hw emtins are expressed t the ther side. - Characterize things as hw peple feel rather than as an actual fact. What, if Anything, Mediatrs Shuld D t Assess What Is a Gd Mediatin? What Legal Infrmatin r Advice frm Mediatrs is Apprpriate? - Is there an agreement n what a gd mediatin is? If yu ask the parties, they have their wn idea. Lawyers have their wn idea. I imagine the Curt has its wn idea. If we re ging t be using wrds like gd r better, I just want t knw the cntext in which we re using thse wrds. - If yu are under the aegis f the Curt, I think as a mediatr yu have t have sme sense f an bligatin f a fair utcme. They have t knw what they are giving up. Hw wuld she feel if she had t pay anything? What if she fund ut later the case wuld have been dismissed? I am nt advcating giving advice, r even pening up the dr t the slippery slpe. But I want t prevent the Curt frm verseeing a miscarriage f justice. - Hw d yu knw what a fair utcme is if yu have tw peple telling ppsite stries? We shuldn t be engaging in judgment abut what fairness is. - Cncern abut prviding legal advice if yu give infrmatin abut a statute f infrmatin, fr example. It s imprtant t practice fairness withut judgment. - N matter which side yu take, yu have t be careful yu are giving crrect infrmatin. - Is it abut giving infrmatin, r asking abut what infrmatin they have? - I wuld hpe the prcess begins at the Curt level with a self-represented persn that yu prceed at yur wn risk when yu mve withut a lawyer. There are frms that prtect mediatrs arund the issue f legal advice. - I give a lt f legal infrmatin. If I dn t give it in my subject area, it is pening the parties up t real legal prblems: 1) judge may nt apprve it; 2) because 3

4 agreement is unwrkable, they end up back in Curt after the divrce. Because the gal is t keep them ut f curt fr the lngest pssible time. Befre I get int peple s psitin n issues, I hand ut infrmatin sheets with sectins f the statute n tpics as they cme up, especially reasns t vary frm child supprt guidelines. - Much f it is nt vetted by a judge, s what they cme t is what is what they get at the end f the day. I dn t try t give legal advice, but when I m with ne f the parties in a caucus, I will say t a party, I dn t think a judge will ever d that. - Many peple are very extreme; they want a judge t run their life. It isn t part f the curt s wrk. What we are here t d is reslve disputes. - T me, I like t sleep at night. I m nt ging t wrry, t tell yu the truth, abut whether I step ver the line between giving advice and naming the setting in which they re peratin. S far, Gd has been gd t me. What have yu dne t have peple cme as prepared as pssible, particularly self-represented litigants? - I dn t knw hw yu have [pre-mediatin] cnversatins with the parties if yu d nt meet them until yu walk int the curtrm. - Maybe there are things the Curt can d t prepare them better. - Anything the curt can d t get us the financial affidavits, e.g., s f parties, phne numbers f attrneys? If I have it in advance, I wuld d a lt f pre-wrk. - Pre-mediatin cnversatins are very helpful. Often discvery disputes can get reslved. - We can reslve a lt f things in advance. - Helps make the mst f a live sessin. What Wrked Well in the Mediatin Simulatin - Mediatr stepped ut (was quiet) and let us have ur discussin. - Very psitive, reaffirmed pprtunity t mve thrugh this. - Asked gd questins, then let us talk. - Engaged the parties in having cnversatin tgether. 4

5 - Letting us have emtinal expressin and welcmed it as being psitive. - One challenge: party may have talked t a lawyer r knw a lawyer. Challenges Wrking with Self-Represented Litigants - Parties change psitins quickly. - Mney is a symbl f ther things, and smetimes it is hard t get t that ther thing. - I had t get thrugh emtins befre getting t the (many) prblem-slving pprtunities. I was letting them [the parties] deal with the emtins - It seemed there was n way t get t the mnetary issues befre reslving the interpersnal issues. We ll keep ging until yu re dne saying thse things. - D these peple want what I think they need? - Hw d we deal with emtins and keep track f shrt time allwed t d mediatins? Set agenda. Ask hw peple want t use the time. Smetimes yu have t spend ¾ f the time n emtins. Emtins can be a psitin, s yu can treat it like a reality check and ask what s underlying the emtin. I set the schedule s that if time is running ut, time des nt becme the enemy. Talk abut hw the parties have made prgress. - Statements abut this is as far as we ll g might have been effectively managed in caucus, where there culd be reality testing hw much mney wuld be spent n trying the case. - Keeping my (mediatr) muth shut when parties were talking Thanks t Heather Scheiwe Kulp, ADR Crdinatr, New Hampshire Judicial Branch, fr taking these ntes during the training. 5