Family Law Mediators seek resolutions outside of courtroom

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The Family Court of Delaware has certified 40 attorneys as Family Law Mediators in an effort to create resolutions that work for both sides and lighten its docket.

A certified Delaware family law mediator is a neutral third party who is charged with preserving confidentiality while helping couples resolve issues such as custody, visitation, child support, property divisions, and alimony more creatively and amicably than they can in court.

“I believe it’s beneficial in family law for participants to have alternatives to court proceedings,” said Chief Judge Michael Newell. “Over the years, the court was not using its ability to order mediation, and the attorneys weren’t using the existing rule and requesting Alternative Dispute Resolution (ADR). We deal with a lot of people who are not represented by attorneys, and it can take three to six months to get on the court calendar. ADR reduces that timeline and gives them a larger say in their settlements.”

Newell said that Family Court judges can order litigants to complete ADR 30 days in advance of pretrial conferences and failure to comply could delay both the conference and trial. But the reality, he conceded, was that fewer than 10 percent of cases currently use the ADR process. He hopes to see a significant increase in that with greater awareness from the certification program.

The impact of that is clear when you consider that the Family Court of Delaware sees about 50,000 filings per year, with another benefit being that mediation keeps the proceedings between the parties and out of the courtroom.

Newly certified attorney Carl W. Heckert, a member of the four-person Family Law practice at Gawthrop Greenwood PC in Greenville (and West Chester, Pennsylvania), said he’s been “bugging the court for five years” to offer a program like this and hopes it catches on.

“Mediation involves substantial cost savings, less stress, and is usually much shorter in duration, allowing both parties to move on with their lives,” Heckert said, explaining that parties are more likely to comply with an order they created instead of one imposed on them by a court. “Litigation solidifies angst against the other person. One of the worst aspects of the process is how long it can take. It’s not the money or the emotions; it’s the timelines.”

“Mediation has been a passion of mine for many years and it was so exciting to see a formal program launch,” said Family Court Judge Felice Glennon Kerr, who facilitated the session along with local attorneys Julie H. Yeager of The Yeager Law Firm LLC; Kathryn J. Laffey of Kelleher & Laffey; and Marie I. Crossley of MacElree Harvey.  “There are many benefits to litigants in mediating rather than having a judge decide a case.  It gives litigants the opportunity to create a resolution that works for them. The court’s options are much more limited and what the court orders may not always benefit either party.  An example we see very frequently is dividing real estate that has zero or negative equity and neither party is in a position to refinance.   Mediation, if successful, is typically less expensive than going to trial with attorneys.  It also tends to be less acrimonious, which is beneficial for children and people are more likely to follow through with their obligations when they agreed to them as opposed to the court imposing them. “

Chief Judge Newell also said an unexpected benefit of this inaugural one-day program came when organizers asked participants whether they’d be willing to offer their mediation services pro bono and 15 signed up. As a result, the judges of Family Court will have a pool of attorneys from which to appoint when they recognize a case that could benefit from ADR but which involve litigants who would be unable to pay for such services.

“The first group of trained mediators is extremely impressive in terms of the years and breadth of experience they possess,” said Judge Kerr.  “It is overwhelming to see so many experienced attorneys and former judicial officers willing to assist low-income litigants on a pro bono basis.  I think this will really help to move cases on the docket and decrease delays.   Unrepresented people often just don’t know how to work out an agreement or how to navigate the details of property and debt division in particular.”

– By Peter Osborne

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