North Dakota

Family Mediation Pilot Program Off to Strong Start

 When Bonnie Storbakken was litigating divorces as an attorney, she often felt like she was working against the best interests of children while representing her clients' wishes and interests.

"I really detested litigating divorces," she said. "I just didn't feel good at the end of the day."

Storbakken didn't abandon the field of family law, because she remained passionate about the field even after two years of the adversarial process. Instead, she opened her office to a different way of resolving divorce and custody differences - mediation. Now she's one of the Bismarck-area mediators taking cases through North Dakota's family mediation pilot project, which aims to allow divorced or divorcing couples to negotiate the terms of their divorce, including custody and support issues.

While people always have had the option of mediating divorces on their own, the pilot project requires mediation in most cases.

"The major goal is just to allow parties to sit down and negotiate their own agreements without having to go through the adversarial court process," Cathy Ferderer, the state's Family Mediation Program administrator, explained.

The pilot project began last summer in the South Central Judicial District, which includes 12 counties surrounding Bismarck and Mandan, and in the Northeast Central Judicial District, which includes Grand Forks and Nelson counties.

The project appears to be off to a strong start, according to initial data prepared by Greacen Associates, a private consulting firm. More than 90 percent of participants surveyed reported being satisfied with mediation, even if they did not settle anything through the process.

"It seemed to be a positive experience, even if they were not reaching an agreement,"Ferderer said.

Attorneys and mediators, both involved and uninvolved in the project, seemed to have more misgivings about how things were going, though the majority of people surveyed in both groups believe litigation is not the best process for handling divorce. Issues mediators and attorneys had with the project include that there are not enough experienced mediators in the area, people could potentially make decisions without realizing the repercussions and power imbalances in a relationship could sway the outcome of negotiations.

Ferderer said many of the problems already have been handled by training and mentoring with mediators.

"The criticisms seem to be lightening,"she said.

Sherry Mills Moore, a family law attorney in Bismarck, worked on getting the project off the ground. Even before the project began, she had clients using mediation to resolve issues in divorces. While some attorneys have worried about losing business through mediation and even more have worried about whether clients would make decisions that could impact them negatively, Mills Moore said most family law attorneys seem excited about the project.

Judges surveyed in both districts approved of the project, and several commented that many cases are getting resolved through mediation.

Officials flag cases involving custody disputes within 10 days of filing. While the cases get set for regular court proceedings, people with unresolved custody issues get put into mandatory mediation in an effort to solve the issues without a trial. Mediation can be used to negotiate any issues.

"Essentially, the biggest issues tend to be support and children," Storbakken said.

Cases are excluded from mediation if there are elements of domestic violence or a power imbalance involved in the relationship, or if the couple already has attempted mediation prior to filing for divorce.

"It doesn't work for everyone," Mills Moore said.

Ferderer assigns eligible cases to mediators on a rotating basis. While some people have grumbled about not being able to choose a specific mediator, Ferderer said that's not a possibility right now.

"We don't have a large base of practicing mediators in this state,"she said.

Training opportunities will be available as the project grows, which could lead more people to become mediators, Ferderer hopes.

"My hope is that there will be a lot of us out there," Storbakken said.

Most of the current mediators are attorneys, though not all are, Ferderer said. She said mediators must have 40 hours of mediation training and receive continuing education.

While judges decide the issues of a divorce brought before them in litigation, the participants in mediation make decisions for themselves. Mediation "puts everything on the clients," while mediators like Storbakken are on hand to minimize frustration and point out options and future scenarios.

"It provides people with a unique opportunity to really carve out how their lives will be after this," she said. "People are starting to see that there's value in this process."

Mills Moore said some people are able to "narrow the focus" of their disagreements by coming to terms on some issues through mediation. Acouple might be able to decide how to handle visitation but not able to determine the value of their home.

It's not always an easy process. Years of disagreements and problems communicating often end up on the mediation table, and mediators must make sure that both sides are getting their views out in the open for negotiations.

"The conversations are difficult,"Storbakken said.

Participants are encouraged to talk to their attorneys prior to mediation, and to bring them or others to mediation for support if they want.

After an initial, independent session with the mediator, many people put in time gathering information, whether it be working with financial advisers or taking children to counselors, to assist in making decisions in the mediation session.

"People do a lot of really hard work and thoughtful work," Storbakken said.

Some people won't budge on what they want, though many change their minds more than they initially believe they will, Storbakken said.

Any agreement reached by the parties, be it one issue or everything, gets put in a memorandum of decision, taken to lawyers and filed with the court. Anything remaining that can't be agreed upon still gets resolved by judges in court trials.

The state provides six hours of free mediation to each couple. If people want to go beyond six hours, they are responsible to pay the mediator the state rate of $170 an hour. People can apply to be considered for a lower rate, based on a sliding fee scale.

A "fair amount" of people have paid for additional time, Ferderer said.

"It still tends to be a big money saver" over taking issues to court,she said

Mills Moore said it's also a money saver for the state - keeping some issues out of court saves time for judges and court staff. And, as important as the cost effectiveness, Mills Moore said the process hopefully cuts down on future arguments among parents, making the children's lives easier.

Some people are annoyed by being "forced" into mediation, Ferderer said. Storbakken said many people have been confused about mediation, with several even confusing the process for "meditation. However, after they go through it, the outlook often changes once they realize it gives them an opportunity to voice their opinions and have a say in their divorce settlements.

"Surprisingly, a good percentage of them are happy to come," Storbakken said.

As time goes on, more people are prepared for the process.

"I think it's catching on," Storbakken said.