Missouri ADR Commission Report

The ADR Commission appointed by the Missouri Supreme Court has completed its report on the use of dispute resolution processes in domestic relations cases. The recommendations address the use of mediation in family law cases. Here are the recommendations:

Changes to Court Rules on Dispute Resolution

1. Supreme Court Rule 88 is merged into Rule 17
2. Rule 17 only specifically authorizes mediation in family law matters
3. Removes two hour restriction in court-ordered mediation now in Rule 88
4. Changes “good cause” excuse for court-ordered mediation
5. Removes restrictions on mediating contempt, domestic violence, child support and custody modification issues
6. Removes discretion of judge to determine who is a “qualified” mediator
7. Requires family mediator to register with OSCA
8. Change in training requirements (40 plus hours with cross-training)
9. Adds continuing education requirement
10. Confidentiality is limited in cases of child abuse & neglect, physical threats
11. Affirmative reporting requirement for child abuse and neglect
12. Release of agreements restricted

Statutory Changes Proposed

1. Removes “good cause” exemption from mediation
2. Removes restrictions on mediation paid by the parties for issues of contempt, child support, modification of court orders
3. Relaxes authority for parties to terminate mediation in grandparent access disputes
4. Substitutes new provisions defining “good cause,” provides for parties paying “reasonable and customary” cost of mediation, authorizes mediation of child support issues

Establishment of Mediator Practice Guidelines

1. Adopts “aspirational” guidelines for mediator conduct
2. Requires mediator disclosures to parties
3. Restrictions mediator’s ability to accept conflict of interest cases, child abuse and neglect cases, and domestic violence cases
4. Confidentiality consultation required with participants
5. Prohibits coercion by mediator to get agreement or make substantive decisions
6. Restricts participation of children in mediation
7. Regulates mediator advertising

Establishment of Court Mediation Program Standards

Adopts standards that shall apply to all court-connected family mediation programs, voluntary or mandatory (including referrals by judge to court annexed and court referred programs). The standards adopted were promulgated by the State Justice Institute and cover the following areas:

Elimination of barrier to access to mediation
Program standards for court, program management, complaint mechanism, timing of mediation, referral and attendance, and evaluation
Information provided to public, bar, bench and court personnel
Mediator qualifications (comply with Rule 17)
Selection of mediators (party choice or from Rule 17 list)
Role of lawyers in mediation
Pressure to Settle
Communications between mediators and the court

Institutional Recommendations

1. Continuation of ADR Commission
2. Adoption of Implementation Model in non-urban areas: funding by Family Court surcharge or tri-county collaboration with ADR program specialist
3. Establish an ADR Coordinator in Office of State Court Administrator to:
4. Develop infrastructure to support statewide implementation
5. Serve as centralized resource for technical assistance
6. Conduct ADR research
7. Develop partnerships with other ADR groups
8. Develop educational tool targeting judges, attorneys and public
9. Identify and access funding at state and local levels
10. Local circuits are responsible for handling consumer complaints and removal of ADR providers from court-approved list



COMMENT: I think, frankly, it would be easier to just ask the legislature to adopt the Uniform Mediation Act with Missouri variations. It would be simpler than "re-inventing" the wheel as this draft appears to suggest. Elgene

COMMENT: The recommendation for a statutory provision that provides for mediation in adult abuse cases (chapter 455) should be amended to exclude adult abuse cases. The efinition of "good cause" should be broadened to include cases where there is evidence of abuse or domestic violence." Nina

COMMENT: I favor the increase in mediator training and cross-training for mediators of various professional backgrounds. The continuing education requirement is also a good idea to encourage mediators to improve their skills. Where did the mediator standards come from? They don't mirror standards set by ACR, AFCC or ABA, all heavily researched and vetted by the mediation community. Blogspeaker

COMMENT: I read the entire ADR Commission report. It was very interesting to me to see what trials are taking place in relation to mediation in Missouri. In (AMM) training sessions I have attended where judges were present, I was impressed with the judges' statements about how mediation helped their court system. I had no awareness of this when I began my education in mediation. I think it is important that more judges make themselves available to speak about how mediation impacts thier court system. I was pleased to see how favorably mediation is viewed by everyone across the board from the parties to the court staff. Linda

OK to Vent?

Is it a good idea to allow people to vent during a mediation?

Yes. Particularly when parties have not communicated with each other by choice or at the recommendation of their attorneys. Allowing parties to vent and clear the air often enables them to move forward and do the work at hand. I feel, however, it is the mediator's responsibility to maintain a sense of decorum and use the parties' time wisely. R. Pearce

Perhaps. Venting needs to be expressed in an appropriate manner that doesn't derail the mediaiton. It can be helpfyl to let people express things they may have never been able to say before and often they can move past it to get to work on the issues. if they are using it as an opportunity to berate the other party without any beneficial purpose in the mediation, then I recommend not going there. It's a judgment call for the mediator baed on style, insights into the parties and trusting instincts. K.Robinson

Some mediators do allow parties to "express their opinion" at the beginning of the mediation. One (family) mediator begins the session stating, "I am sure each of you feel that the other person has wronged you in some way. I will allow each of you five minutes to express yourself in a respectful manner to the other person, and then we will be moving on to the issues that concern your children." The mediator believes people seem ocntent after stating their minds to then put the personal issues behind them and begin formulating a parenting plan for the children. It seems to go smoother beuase they have "said it" and gotten the issue off their chest. C.Harbour

Yes, it is frequently helpful. The challenge for a mediator is to channel that energy, communication, frustrations. Observe both parties, learn and discern hidden agendas, and look for common interests. Help the parties embrace conflict. E. ver Dught

Venting is an important part of the mediation process. It can't be the only part. Venting needs to be like a slowly kinda-but-not yet- but almost whistling tea pot. Something is happening and changing, just not an annoying screaming whistle. Benting needs to be purposeful, as in heating and cooling. Mediators must be the thermostate. Zenmed8r