Mediation, it is a process and concept with which most people are familiar. The Court rules define it as follows:
Mediation is a process by which a mediator facilitates the parties in reaching a mutually acceptable resolution of a controversy. It includes all contacts between the mediator and any party or parties until a resolution is agreed to, the parties discharge the mediator, or the mediator determines that the parties cannot agree.
See Superior Court Civil Procedure Rule 16(f)(ii) Court of Common Pleas Civil Procedure Rule 16(a)(9) and Family Court Civil Procedure Rule 16.1(e)(2). In Family Court, however, the mandatory mediation of child support and custody matters conducted by Court mediators are governed by a separate Rule and are handled a bit differently.
Child support matters are scheduled for mediation with a Family Court mediator (unless one of the parties has committed an act of domestic violence or if there is a no contact order). If the parties cannot reach an agreement then the mediator has the authority to recommend a resolution which will become a temporary court order. Specifically, Family Court Civil Procedure Rule 16(a) allows parties to proceed immediately to a hearing if they cannot agree at mediation. However, if they elect not to proceed to a hearing immediately, Rule 16 provides:
If an evidentiary hearing is not held. . . and if the matter is not resolved at the mediation conference by a permanent, temporary, or interim agreement of the parties, then, absent good reason otherwise to be stated on the mediator’s report, the mediator shall prepare an interim order based upon the documentation provided and the Delaware Child Support Formula which upon review and adjustment by the Court shall issue promptly and may include an order for such discovery as the Court deems appropriate. (emphasis added)
Custody matters are also referred to mediation in the first instance unless there are issues of domestic violence. With regard to custody mediation Rule 16 provides,
If the matter is not resolved at the mediation conference by a permanent, temporary or interim agreement of the parties, the mediator shall recommend an interim contact schedule based on information received at the mediation conference and in the best interest of the child(ren).
The mediator’s recommendation shall be reviewed by a Judge and if the recommendation is approved, it shall become an interim order of contact, without prejudice to either party, pending a full hearing. In the event that the mediator’s recommendation is not approved, the Court shall enter an appropriate interim order. (emphasis added)
In each instance the mediator is obligated to make a recommendation and to prepare a form of order based on his or her assessment of the facts of the case. These recommended orders are frequently signed by the Court.
Practitioners and litigants often debate the pros and cons of this system. The benefit of the process is that it allows the Court to issue temporary, interim orders quickly. This gives families a framework for support and/or custody until they can have a hearing before a judicial officer. This structure can be invaluable to families in transition. However, because the process may result in the imposition of an order over the objection of one or both of the parties, litigants and practitioners also have some concerns. For example, concerns arise that: (1) no witnesses are presented at mediation so an order results from what may be limited information; (2) there is no record of the mediation so the judicial officer does not have an opportunity to hear from the parties and to gauge credibility for himself or herself prior to signing a recommended order; (3) it may be difficult for parties to feel free to negotiate when the neutral is also the person who will be drafting the interim resolution; and (4) the mediator’s notes remain in the file and as a result confidential settlement discussions are contained in the Court file. For better or worse, this is the system that is in place and recognizing that it is not a typical mediation process can be helpful.
Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP. Leslie practices in Fox Rothschild’s Wilmington, Delaware office. You can reach Leslie at (302) 622-4203, or firstname.lastname@example.org.