Vermont Bar Association

Seminar Materials

Family Law Day 2016

Divorce Mediation: Skill Building for

Mediators & Mediation Advocates

May 26, 2016

DoubleTree, S. Burlington, VT

Faculty:

Patricia Benelli, Esq.

Emily Gould, Esq.

Susan Feldman Fay

Althea Lloyd, Esq.

Lori Lustberg, Esq.

STATE OF VERMONT

SUPERIOR COURT FAMILY DIVISION WINDHAM UNIT DOCKET NO. v.

MEDIATION ORDER

In this case, the parties have requested that final divorce hearing be set. The Court has determined that this case is appropriate for mediation pursuant to V.R.F.P. 18(b)-(c). The Court hereby orders the parties to participate in mediation, as directed by V.R.F.P. 18(d) within 45 days. If any party knows of good cause why this order should not be made, he or she shall notify the Court in writing within 10 days of the issuance of this order. Dated: February 8, 2016 ______________________________________ Karen R. Carroll Superior Court Judge

STATE OF VERMONT

SUPERIOR COURT FAMILY DIVISION Windham Unit Docket No. Plaintiff Defendant Name

Phyllis Crawford

v.

Name

Todd Crawford

ORDER TO MEDIATION

It is hereby ORDERED:

1. Within 21 days of the date of this order, the parties shall agree upon a court-approved

mediator to assist them in resolving the following issues:

parental rights and responsibilities, legal and/or physical

parent/child contact schedule and/or conditions

determination of parent income and/or child support obligation

divisions of personal property of the parties

division of property and financial interest of the parties

(other)

2. In the event that the mediator determines that mediation is an appropriate process,

the parties shall attend a minimum of two mediation sessions. Mediation shall

continue beyond two sessions, if the parties mutually agree.

3. If at any time the parties reach an agreement, a written agreement shall be prepared

and filed with the court.

March 22, 2016 signature

First M. Last Superior Court Judge signature

First M. Last Assistant Judge signature

First M. Last Assistant Judge

132 Main Street Montpelier, VT 05602 p: 802-223-1735 f: 1-800-894-1189 www.emilygould.com ejgould@emilyjgould.com

September 9, 2013

CONFIDENTIAL MEDIATION INTAKE FORM Date___________________ Your Name_____________________________________

Address_____________________________________________________________________

____________________________________________________________________________

Telephone______________________ Cell______________________________________

Email________________________________________________________________________

Attorney, Advocate, Support______________________________________________________

Attorney/Advocate Phone______________________ Email________________________

Nature of the Dispute___________________________________________________________

____________________________________________________________________________

People (Including Children/Ages) Involved__________________________________________

___________________________________________________________________________

___________________________________________________________________________

Please provide a brief history: ___________________________________________________

___________________________________________________________________________

____________________________________________________________________________

____________________________________________________________________________

____________________________________________________________________________

What are the issues that you want to discuss in mediation?

Issue Why is this important to you?

1.__________________________ _________________________________________ _____

_______________________________________________

2.__________________________ _______________________________________________

_______________________________________________

3.__________________________ _______________________________________________

_______________________________________________

4.__________________________ _______________________________________________

_______________________________________________

132 Main Street Montpelier, VT 05602 p: 802-223-1735 f: 1-800-894-1189 www.emilygould.com ejgould@emilyjgould.com

2

What do you think the other person regards as the most important issues to discuss in

mediation and what are the reasons why these issues are important to the other person?

Issue Why is this important to them?

1.__________________________ _______________________________________________

_______________________________________________

2.__________________________ _______________________________________________

_______________________________________________

3.__________________________ _______________________________________________

_______________________________________________

4.__________________________ _______________________________________________

_______________________________________________

Do you have any concerns about mediation? ________________________________________

____________________________________________________________________________

____________________________________________________

What do you consider to be the greatest obstacle to reaching a resolution?

____________________________________________________________________________

____________________________________________________________________________

____________________________________________________________________________

What are your negotiation strengths? ______________________________________________

____________________________________________________________________________

Say one good thing about the other party___________________________________________

____________________________________________________________________________

Does anyone have disabilities or issues with drugs or alcohol? __________________________

____________________________________________________________________________

Do you have any concerns about expressing disagreement at mediation?__________________

____________________________________________________________________________

How have you and the other party handled conflict in the past?__________________________

____________________________________________________________________________

____________________________________________________________________________

Anything else you think I should know______________________________________________

____________________________________________________________________________

132 Main Street Montpelier, VT 05602 p: 802-223-1735 f: 1-800-894-1189 www.emilygould.com ejgould@emilyjgould.com

September 9, 2013

MEDIATION PREPARATION QUESTIONS

1. As you reflect on the issues, what is at the heart of the matter for you?

2. What would you most like to talk about during this mediation? What do you imagine that the other person would most like to talk about?

3. In this session, how important is it to you to have your point of view understood by the other person?

How do you imagine that you might speak in ways that allow you to be heard and understood?

When and how have you been able to accomplish that with the other person in the past?

How will you know that the other is listening in the way you wish him to?

4. What do you want the other to do or refrain from doing in order for you to be able to really listen to him? What have you done in the past that's enabled you to listen in difficult situations?

5. What kinds of agreements or ground rules for this conversation might best help you to experience this as a worthwhile investment of your time?

6. What concerns do you have about how things might go wrong in this session? What ideas do you have about how to prevent that from happening?

7. What advantages and disadvantages might there be to creating an Agreement in this session?

8. What factors beyond your control have contributed to the current situation?

9. What might you have done differently if you had the opportunity to go back and relive the relevant events?

10. If, by some miracle, you woke up tomorrow and everything was resolved to your satisfaction, what would be different?

How would your behavior toward the other person be different?

In what ways would his/her behavior toward you change?

How would the situation have been resolved?

Mediation screening Qs. for domestic violence at intake 1. Mediation often occurs with both parties in the same room together. Do you

have any concerns about mediation in the same room with the other party? assesses a party’s general reluctance to participate in the mediation process —

invites the party to share possible concerns

2. Are you fearful of the other person for any reason ? invites discuss of various types of fear associated with mediation- fear of losing one’s child to the other; fear of humiliation, etc.

3. Has the other party ever threatened to hurt you in any way?

this question invites a broad opening for the person to discuss various forms of perceived and/or experienced threat

4. Has the other person ever hit you, or used any other type of physical force? asking directly about physical abuse but avoids the term “abuse” since often

individuals do not consider themselves abused, they will admit being hit 5. Have you ever called the police, requested an order of protection (RFA) or

sought help for yourself, or your children,as a result of abuse by the other person? assesses the severity of the threats and if yes, ask when the help was sought

6. Are you currently afraid that you will be harmed by the other person? follow up to Q. 2

7. Mediation is a process in which individuals work together with a neutral 3d

person to negotiate details of their divorce/parenting plan. Do you believe that you would be able to communicate with the other party on an equal basis?

inquiry about the person’s subjective perception of their ability to mediate 8. Has your partner every threatened to deny you access to your children?

9. Do you have any concerns about the children’s emotional or physical safety with

you or the other person? 10. Has DCF every been involved with your family ?

How many of these questions are appropriate depends on each case and

the answers to the first several questions. Tollman Model

V.R.F.P. Rule 18

VERMONT COURT RULES ANNOTATED

Copyright 2016 LEGISLATIVE COUNCIL OF THE GENERAL ASSEMBLY

FOR THE STATE OF VERMONT

*** Rules current as amended through April 28, 2016 ***

RULES FOR FAMILY PROCEEDINGS V.R.F.P. Rule 18 (2016)

Rule 18. Mediation

(a) Applicability. -- This rule applies to all actions and proceedings

under V.R.F.P. 4(a)-(q) and V.R.F.P. 8.

(b) Order to Mediate. -- Except as provided in subdivision (c), the

court, on its own motion or the motion of a party, at any time after the

commencement of an action or proceeding to which this rule applies may order the parties to participate in mediation of any issue or issues

involved in the action or proceeding if the court determines that the

issue or issues could be resolved or clarified through mediation and that the interest of the parties and the court in a fair, economical, and

efficient resolution of the issues would be served thereby.

(c) Exceptions. -- The court will not order mediation if

(1) at the commencement of the action or proceeding, the parties jointly certify that they have in good faith voluntarily engaged in

mediation with a neutral of their choice regarding the issue or issues

that would have been the subject of the court's order and file with the court a report of the neutral describing the process employed and the

results;

(2) at, or at any time after, the commencement of the action or

proceeding, the parties jointly agree on the record that they will voluntarily participate in mediation regarding the issue or issues that

would have been the subject of the court's order and will file the

neutral's report of the process and results by a specific date;

(3) a relief-from-abuse action is pending between the parties, or a

final order issued in such an action between the parties is in effect;

(4) a final order issued in a relief-from-abuse action between the

parties is no longer in effect; provided that the court may order mediation in such a case if the court specifically finds good cause to

believe that mediation would be appropriate in the circumstances; or

(5) the court determines that mediation would not be appropriate

due to allegations of abuse, the possibility of undue hardship, or for

other reasons.

(d) Conduct of Mediation. -- In a mediation ordered under subdivision

(b),

(1) The mediation will be conducted by an individual mediator from

the Family Division Mediation Program's list of mediators, acceptable to the court and the parties. If no mediator on the Mediation Program's

list who is acceptable to the court and the parties is available to

conduct the mediation, the court, with the agreement of the parties, may designate another mediator with credentials comparable to the

minimum requirements for inclusion on the list.

(2) The mediation will be carried out on a schedule prepared by the

parties in consultation with the mediator and approved by the court

unless the court subsequently, on the request of the parties and mediator, approves a modification.

(3) The mediator will meet with each party separately prior to the mediation and may meet with any party separately at any time during

the mediation.

(4) The parties are expected to attend all mediation sessions and to

mediate in good faith. Attorneys may attend mediation sessions with

their clients.

(5) If at any time the mediator determines that the issues are not suitable for mediation, the mediator may refer the matter back to the

court to be determined in further proceedings as ordered by the court.

(6) The mediator has no authority to make a decision or impose a

settlement upon the parties. Any settlement must be voluntary. The

parties may reach a partial settlement of the issues and preserve the

right to litigate remaining issues. In the absence of settlement, the

parties retain their rights to a resolution of all issues through litigation.

(7) Any agreement reached by the parties through the mediation

process on all or some of the disputed issues must be reduced to writing, signed by each party and the mediator, and filed with the

court by the parties within ten days after the date of the last

signature.

(8) If no settlement is reached by the date specified in the schedule

approved or modified under paragraph (2), the parties must notify the

court in writing. The matter will then be determined by the court as

provided in any agreement reached in the mediation and approved by

the court or, in the absence of agreement, as ordered by the court.

(e) Sanctions. -- If a party, lawyer, or other person who is required to

participate in mediation under this rule does not appear at the mediation, or does not comply with any other requirement of this rule

or any order made under it, unless that person shows good cause for

not appearing or not complying, the court will impose one or more of the following sanctions:

(1) The court will require the party or lawyer, or both, to pay the reasonable expenses, including attorney fees, of the opposing party,

and any fees and expenses of the mediator, incurred by reason of the

nonappearance, unless the court finds that such an award would be unjust in the circumstances.

(2) In addition, the court may upon motion of a party, or upon its own motion, order the parties to submit to mediation, dismiss the

action or any part of the action, render a decision or judgment by

default, or impose any other sanction that is just and appropriate in

the circumstances.

HISTORY: Added July 20, 2015, eff. Sept. 21, 2015.

MEDIATION AGREEMENT

We, the undersigned parties, sincerely intend to resolve through mediation with Thea Lloyd the issues

arising out of our divorce. Therefore, we agree to the following:

1. Good Faith Effort

Parties in the mediation process agree to make a good faith effort to resolve their conflict, which means to

make an honest endeavor to participate in communications or conferences with the other party with the

purpose of reaching a mutually acceptable settlement. Parties understand that mediation is an agreement-

reaching process in which the mediator assists parties to reach agreement in a collaborative, consensual

and informed manner. It is understood that the mediator has no power to decide disputed issues.

2. Confidentiality

Unless otherwise agreed upon, it is understood between the parties and the mediator that the mediation

will be strictly confidential. The parties and the mediator consider the mediation ‘settlement negotia-

tions’. The parties may request that the mediator send written mediation summaries or draft agreements

to attorneys, however, the mediator may not release these documents to counsel without permission from

both parties. Each party may individually provide his/her attorney with copies of mediation notes/docu-

ments gathered in mediation/settlement proposals without the consent of the other party.

The parties may request that other persons attend the mediation session(s) only by agreement of both par-

ties in advance of the mediation; this includes attorneys, therapists, financial advisors, and support per-

sons.

The parties agree not to introduce mediation discussions, written and oral communications, any draft reso-

lutions, and any unsigned mediated agreements in any court proceeding. While it is expected that media-

tion will resolve the parties’ dispute with a signed agreement, which may be filed by the parties in a court

action, the mediator has no authority to submit documents to the court, nor to take any action in the par-

ties’ court proceedings.

The parties further agree to not call the mediator to testify concerning the mediation or to provide any ma-

terials from the mediation in any court proceeding between the parties. The parties understand the media-

tor has an ethical responsibility to break confidentiality if s/he suspects another person may be in danger

of harm.

3. Role of the Mediator

The mediator may conduct joint and separate meetings with the parties and may suggest resolutions to the

conflict, but does not have authority to impose a settlement.

4. Courtesy

The parties agree to be courteous throughout the mediation process by respecting the opinions, percep-

tions, and feelings of the other parties and by refraining from personal attacks, intimidation, threats, and

verbal or physical abuse.

5. Full Disclosure

We will be expected to fully disclose any and all information, including financial information requested

by the mediator, and all information requested by the other party if the mediator finds that the disclosure

may aid in the mediation process. Note: Subsequent findings of nondisclosure of appropriate infor-

mation may constitute grounds for nullifying an agreement.

6. Legal and Other Counsel

We realize that although Thea Lloyd is an attorney, she cannot provide legal or other counsel, but is ac-

tion in her capacity only as a mediator. It is expected therefore, that we may consult with legal counsel

early in the mediation process in order to make informed choices. We can provide our attorneys with in-

formation concerning the case and can inform our attorneys of decisions in progress. The mediator can

also make it clear verbally or in writing the mediator’s expectations of the attorneys’ role regarding the

mediation process. We agree that we will direct our attorneys not to proceed with discovery or any other

court action without prior discussion in mediation. If an agreement is reached and formalized by the me-

diator, each party is strongly advised to have it reviewed by their attorney prior to signing. We under-

stand that consultation with financial, tax or other professionals may be useful if a particular situation

warrants this.

7. Cost of Mediation

The hourly fee as discussed with the mediator will be applied to the actual time spent in mediation ses-

sions as well as work done outside the session. Travel time, if any, is billed at one-half the hourly rate.

We agree to pay our individual hourly rate at the end of each session for all costs incurred prior to and in-

cluding the date of mediation, and a one hour charge for the summary notes to be sent out after each ses-

sion. Time spent on drafting agreements, if any, will be billed in advance.

8. Final and Interim Agreements

We understand that agreement made during our mediation sessions are not binding until a final agreement

is generated and both parties have signed the document. However, prior to a final, signed agreement we

may make interim or informal oral agreements in order to facilitate the process. We agree to honor in

good faith any such oral agreement reached on this interim basis.

9. Termination of Mediation

The mediation process is terminated when (a) the parties reach a settlement

agreement; (b) the mediator determines that further efforts at mediation are no longer likely to achieve a

settlement; (c) either or both parties withdraw from the mediation proceedings.

___________________________________ ________________________________

Date Date

It is the mediator’s practice to destroy files after they have been closed for 5 years. I will assume you have no objection to this

practice unless you notify me in writing within 5 years of the date of this agreement that you wish to take possession of your file.

Additionally, you must keep me informed of any address change.

Vermont Bar Association

Family Law Day 2016

May 26, 2016

Additional resources

Link to Vermont Judiciary’s mediation program:

https://www.vermontjudiciary.org/GTC/Family/mediation.aspx

ROLEPLAY

Brad and Demi Tasse are getting divorced. Brad has just moved out and is living with his new love, Jane

Twentysomething in her home. Brad and Demi have two children: Ali is 12 and Nate is 6. Jane also has a

six year old son, Skipper who is in the grade just above Nate, since the boys have different birthdays, but

they are in the same ski club and are good friends. Brad, Demi and Jane all know each other from ski

club.

Brad and Demi own a home worth that is appraised by the town at $350,000 with a mortgage of

$250,000. Brad earns $85,000 per year in marketing at a local coffee distributor and Jane earns $35k per

year as a school counselor.

It is the second week in November and Brad thinks it would be great to continue the family tradition of

Thanksgiving at his parents house, only this year he would like to bring Jane and her son.

Brad is eager to “get this thing done,” but is reluctant to spend a lot of money on legal fees. He is

concerned that Demi is off the rails, and thinks the less the kids have to deal with her the better. He

knows that Nate would be thrilled to live with Skipper but doesn’t want to separate the kids.

Demi believes that Brad has “lost it” and as angry as she is, believes that ultimately, this will blow over

and that her marriage can be saved. She’s hoping he’ll get into family counseling and remember who he

is.