Mediators help couples find middle ground
By Erica Kritt, Times Staff Writer Monday, August 11, 2008
Marlin and Cathy Burds first divorce settlement conference exploded into arguing and bickering that dragged on for nearly three hours before Marlin finally walked out.
When he regained some composure, he headed back to the settlement, but when he returned, Cathy was already walking out. Despite a protective order, Marlin approached Cathy and suggested they try mediation.
They scheduled a session that day.
It was like walking into an emergency room, Cathy Burd said. We went from enemies to friends.
Mediation is an alternative form of conflict resolution that is confidential and nonadversarial. In mediation, an impartial person, who does not give legal advice, listens to both sides and doesnt make decisions or suggestions but allows the participants to talk with each other and understand each other to come to necessary decisions. A mediator does not work as a lawyer and does not take sides.
In Maryland, anyone with a custody or visitation issue can be sent to mediation, for at least two sessions, if the court deems it appropriate.
In Carroll, the disputants are sent to two two-hour sessions with a mediator where they will both pay $100 an hour, according to Powel Welliver, family law administrator for the Circuit Court for Carroll County.
If the parties agree that they want to use a different mediator than the one assigned, Welliver said that is allowed as long as the parties give reasonable notice to the court.
According to Welliver, a case like the Burds would not be recommended for mediation because there were domestic violence issues. Welliver said she can make a judgment call if she thinks mediation might be dangerous for any of the parties in the dispute.
Those who are sent to mediation dont have to stay there. They must try it, but if they dont like it after the two sessions and have made no progress, they can resume seeking a resolution through litigation, according to Welliver.
Mediation can also be used for business contracts, neighbor-to-neighbor disputes and estate disputes. Welliver said mediation can be used almost any time there is conflict.
Marlin and Cathy came through mediation with a contract that gave both parents equal custody of their three daughters.
Before mediation, Cathy was living in the couples home. Her lawyers told her not to give up the home, but Cathy said she really didnt want the house
Cathy said she realized during the mediation that a lot of Marlins anger was coming from the fact that he wanted to see his children and to be in his home.
He was paying for a house that he couldnt live in, she said.
After mediation, Marlin got the house and bought out Cathy after refinancing.
Both Marlin and Cathy said they were relieved to have finally worked out a plan and to get back to nurturing their three daughters.
State support
In 1997, Rachel Wohl, a litigator in Maryland, asked Maryland Court of Appeals Chief Judge Robert M. Bell to start a commission to promote alternative dispute resolution.
In response, Bell created a 40-member commission, and from that came the Mediation and Conflict Resolution Office, where Wohl now works as executive director.
Wohl learned about mediation after she was trying to reach a settlement in three cases she was litigating for the states attorney generals office. After she couldnt reach a settlement, the case went to mediation.
After two days of mediation the case was settled, she said.
After that experience, she took classes on the subject and decided it was something she wanted to pursue.
MACRO encourages counties to use ADR methods to keep people out of the courtroom.
Wohl said that since MACROs birth, there have been significant increases in the field.
In 1998, Maryland had only nine community mediation centers. Now there is a center serving every county and Baltimore.
MACRO has helped the community mediation centers stay alive by providing performance-based grant money and support. The money MACRO is able to grant comes from the state through the judiciary.
There are currently no requirements to become a mediator in Maryland, but Welliver said that if a person is to work with the courts, he or she must undergo 40 hours of basic training in an accredited program.
To mediate cases that involve child access, the person must take another 20-hour training course and participate in co-mediation or observe mediation taking place. A different 20-hour course is needed to mediate cases involving marital property issues for the court.
The mediator must also complete eight hours of continuing education every two years.
Welliver said there are a couple types of mediation styles, but ultimately each mediator works differently.
Benefits
One of the benefits of mediation MACRO touts is that when two people mediate a resolution they are creating their own terms so they are less likely to break the deal and end up back in court or with another conflict.
Welliver said statistics have shown that when a judge has to rule in a dispute, the disputants will most likely return to court.
A 2006 The Womens Law Center of Maryland study, called Families in Transition, found that 10 percent of cases that were decided by a judge had to be reopened, whereas only 5 percent of cases that were settled by the disputants had to be reopened.
Wynde Juliet Winston of Westminster, an attorney and mediator, said the courts are overloaded and dont have time to get to the core of every problem. No judge can really get inside a case in the short amount of time, she said.
Amy Womaski, a mediator in Carroll County, tries to let her clients do much, if not all, of the talking. After each gets a turn to tell his or her story, the disputants work out what issues need to be addressed.
Womaski said people need their concerns to be validated and understand that they are being heard in the process. Once each person can vent his or her frustrations and the other hears those frustrations, half the battle is won, she said.
It doesnt make the problem go away, but it frees you up to go forward, Womaski said.
Reducing courts workload
If mediation wasnt mandated, Welliver said she thinks two more judges would have to be hired to handle the workload in Carroll County. According to Welliver, the court orders between 150 and 175 cases to mediation a year.
Welliver said it might be impossible for the Carroll County Circuit Court to handle all of the cases that involve a custody or visitation issue if it werent for mediation.
The result of mediation is also often cheaper than going to court, according to MACRO.
Marlin Burd said he had racked up between $14,000 and $15,000 in legal fees and didnt get anywhere with their lawyers, but mediation cost a total of $1,100, he said. Because the Burds were not recommended to go to mediation they did have to go through the litigation process.
Cathy Burd said the money that was spent with lawyers could have gone to their childrens college educations and making a better life for the family.
Confidentiality
Another reason some people choose to seek out mediation is that the proceedings are private. In court, everything stated becomes public record for anyone to look up. Mediation is confidential.
I have to maintain privacy, said Kelly Walfred Miller of Westminster, a mediator and attorney. Its a very complex, emotional state [my clients] are in.
Womaski has said she has seen screaming and even had to dodge a thrown cell phone during sessions with clients.
Confidentiality is so guarded that mediators are not allowed to testify in court about their sessions, unless it is to defend themselves or if there were imminent threats made to harm someone, admissions of child abuse or allegations of duress or fraud during the mediation, according to MACRO.
There are some instances where mediation is not a possibility. Welliver said she takes her job seriously when reviewing cases that would be sent to mediation, to make sure they are appropriate.
If there are allegations of physical or sexual abuse, if one party is overpowering the other or if any party in the dispute is not physically or mentally able to participate in mediation, then the case will not be sent to mediation, Welliver said.
Reach staff writer Erica Kritt at 410-857-7876 or erica.kritt@carrollcountytimes.com.
Glossary
- Alternative dispute resolution: A process or collection of processes for resolving disputes without going through a trial or committing violence.
- Arbitration: A process in which people in a dispute present their views to a knowledgeable neutral person, an arbitrator, who decides how the dispute will be resolved.
- Consensus building: A process in which a neutral person brings stakeholder groups and individuals together and facilitates their efforts to solve a common problem or address a complex issue in a way that best meets the participants needs.
- Mediation: A process in which a trained neutral person, a mediator, helps people in a dispute to communicate with one another, understand each other and, if possible, reach agreements that satisfy the participants needs.
- Neutral case evaluation: A process in which people in a dispute present their views, often in written form, to a knowledgeable neutral person who evaluates their dispute and expresses an opinion about the most likely outcome in court.
- Settlement conference: A process in which people in a dispute in court present their views to a knowledgeable neutral person who evaluates the case and suggests ways to settle the dispute without a trial.
Source: Mediation and Conflict Resolution Office
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