Recently, a pair of “transformative” mediators claimed that without mandatory mediation, the pre-destined role of mediators as apostles of self-determination will never be fulfilled. We took the authors to task in the Winter 2015 Issue of the Massachusetts Council on Family Mediations’ Family Mediation Quarterly for many reasons, including this proposition. Putting aside the considerable irony that practitioners who seek to transform relationships, not content to merely settle disputes, think they can do so when people are compelled to pay them to do it, we are pleased to see that the Massachusetts Appeals Court is not similarly deluded.
The recent case Ventrice v. Ventrice addressed the appeal of a father whose divorce judgment forbade either party from filing a subsequent complaint for modification until the parties had first engaged a private pay mediator.” Citing Article 11 of the Massachusetts Declaration of Rights, the appellate court wisely vacated this provision because it chilled the rights of potential litigants “…obtain…justice freely, and without being obliged to purchase it.”
As one former Probate and Family Court judge, and two former long-time litigators in that court, we can certainly understand the trial court’s concern and motivations: we can both picture a very thick red file sitting on the bench, the dread that it promotes in all courtroom attendees, and most importantly, the havoc that such cases wreak on children and families. But, on so many levels, mandatory mediation, especially the private pay variety, is just wrong:
- As the Appeals Court cited at footnote 14, Rule 2 of the SJC’s Uniform Rules on Dispute Resolution defines mediation as a “voluntary process”;
- Few obdurate litigants will enter mediation in good faith and with the emotional skills to use it productively;
- It is unseemly for the courts to force people to patronize a segment of the professional community at the cost of others, however enlightened and useful we think we are (!); and,
- It undermines mediators, whose very professional personae include devotion to facilitating self-determination for competent persons who make the choice to seek us out.
While the Appeals Court reversed on state constitutional grounds, its decision was sound for all of these reasons, and, in addition another important error that they did not mention. The trial court’s divorce judgment not only mandated private mediation, but it ordered the parties to pay the mediator equally “…unless otherwise allocated by the mediator.” In other words, the judge not only mandated private mediation, but also private arbitration, since mediators, by definition, wield no decision-making authority whatever, let alone one so fraught as a financial sanction, which fee reallocation most surely is.
We love mediation and arbitration. We have actively advocated to foster broad acceptance of arbitration as an efficient, cost-effective form of family law dispute resolution. But whether mediating or arbitrating, our dispute resolution table cannot stand without its most equal among equal legs: voluntariness.
We are glad that the Appeals Court got that.--------------------------------------------
1"Reclaiming Mediation’s Future: Getting Over the Intoxication of Expertise, Refocusing on Party Self-Determination", by Robert A. Baruch Bush and Joseph P. Folger; Mediate.com Newsletter, December 3, 2014 (#558).
2Presumably, the court intended that the parties actually mediate, rather than just hire the mediator, as the judgment literally required.
3The court did exclude contempt actions from this order.