Monday, August 31, 2009

Delaware County's Mediation Program - A good idea from Muncie

Let me say that I think Delaware County has hit on a great idea. (Although I understand that there is some connection with the Henry County Circuit Judge as the possible originator.  I think its greatness lies in overcoming my two objections to mandatory mediation.

I am writing about this because I think it is a program that would be worth imitating in other parts of Indiana.

I learned over the past month that the Delaware County Courts started a mediation program this past year.  Not much seems to be known - even by the Muncie attorneys about the program or how it works.  Thanks to Jennie Scott, a Muncie attorney, who opposes me on a case in Muncie, I got the start of an education.

I probably should also thank Tom Cannon of Delaware Circuit Court 5 for explaining a bit of the process during a hearing this past Friday.  And the Delaware County Court Administrator for giving me a packet that I spent Sunday scanning in and uploading. Also, I understand Judge Voorhees of Delaware Circuit Court 1 lobbied for this program.

What are those objections might be worth mentioning:

  1. That it is mandatory:

I do not like mediation when it is forced upon a case automatically.  Yes, I am thinking of you , Marion County.  While this may come as a surprise to non-lawyers, judges some times take a dim view of lawyers.  I think mandatory mediation is a symptom of judge's not trusting lawyers to recognize the cases where mediation is not going to work.  Yes, judges, we do know when the parties will not listen to reason and need your judgment.  Just as judges should know which lawyers will not settle a case because they wish to pump up their fees.

Delaware County does make mediation mandatory. (See the Order creating the Delaware County (Indiana) Alternative Dispute Resolution Fund Plan.)

2.  Mandatory mediation does give any relief to those who cannot afford paying mediators and attorneys.

I have a case in another county where the judge refuses to rescoind a mediation order - even though the parties have little money to pay for anything.

First, Delaware County created a fund to pay mediation costs (which at $75.00 per hour msut be a bit discounted by the mediators).  See the Order and Delaware County notice re fees - Delaware County added $20.00 to the amount for filing fees to pay for its mediation program.

Second, the Order requires co-payment by the parties and the County created this Sliding Fee Schedule.  This chart showing how Delaware County determines the co-pay for its mediation program although I want to note something I learned in Friday's hearing.  The judge combines the parties' income to get the income figure and the co-pay is then divided between the two (so a $40.00 co-pay becomes $20.00 paid by the parties).

Judge Cannon stated the reason for the co-pay was to give the parties a financial incentive for participating in the program.

Lastly, Here the attorneys move the case into mediation and then they get out (take a look at the Delaware County Waiver of representation ).

So what is good about mediation?

It gives people - the parties, the clients - a chance to deal with the emotional issues that underpin so much of family law cases.  The courts have no means of dealing with those issues - they are designed only to deal with the wholesale legal issues and not the retail issues of the case.  As a lawyer, I am the client's advocate and those issues conflict with that role.

If you think that your county could use a program like this, then talk to your judges and pass along this information.  Nothing will change unless there is an effort made.

For those interested, I have posted the following documents elsewhere online:

Delaware County Circuit Court ADR Project Waiver and Consent to Release Confidential Information Form  -  Client release form

 Instructions for Completion of Alternative Dispute Resolution (ADR) Project Plan -  The title sums this up pretty well.  These are the  instructions for completing the Delaware County, Indiana Alternative Dispute Resolution (ADR) Project Plan forms that are also posted here

Delaware County Facilitation Agreement - An agreement signed by the parties setting out understanding of ADR project and what they agree to do during mediation.

Delaware County Intake Form - The form used by Delaware County Courts as for intake for the County ADR program.

Delaware County Mediation Order - sample order

Mediation outcome What appears to be form used by the Delaware County mediation program as report to the court and parties on the mediation's income.

Delaware County Mediation Program Survey - Delaware County has a form for surveying the participants in its mediation program.


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