Safety Screening May Have Helped

The Michigan Court of Appeals just reviewed yet another divorce mediation where the wife claimed that she was “coerced” by her attorney and by the mediator to agree. The Court, in a 2-1 decision, affirmed the divorce agreement in Pohlman v Pohlman, unpublished opinion of the Court of Appeals, issued January 30, 2020 (Docket No. 344121).

But one wonders whether the mediator could have done anything to prevent a result that left one party to the mediation so unhappy.

One of the wife’s post-mediation complaints is that the mediator never did the domestic violence screening required by MCL 600.1035(2) and MCR 3.216(H)(2) before every divorce mediation. The majority ruled that this violation was not enough to set aside the divorce judgment.  The dissent questioned how the law will be enforced if mediated agreements are upheld despite the violation of the law.

Leaving aside the question of how to “punish” mediators who violate this law, it turns out that good mediators screen for reasons beyond safety — and beyond the fact that they’re legally obligated to screen. Mediators who conduct screening as a regular course of their practice will tell you that it helps them to build trust with each party, and to learn all kinds of helpful information that enhances the mediation.  Had the mediator in this case had that screening conversation with each party, even if it turned out that there were no domestic violence concerns (an open question), the mediator would likely have learned about the wife’s mental health challenges, and worked with her and her attorney to develop strategies to accommodate them in the mediation. Instead, this mediator did not speak with the wife until the day of the mediation, and then only briefly at the beginning of the mediation. A lost opportunity.

The wife also argued that she “signed the settlement terms sheet under duress because she was tired and hungry during the 6.5 hour mediation process, and she was pressured by the mediator and her attorney to sign the settlement.” This sounds way too similar to Vittiglio v Vittiglio, 297 Mich App 391; 824 NW2d 591 (2012), another divorce mediation where the wife afterwards sought to set aside the mediated agreement. See also, Nowak v Nowak, unpublished opinion of the Court of Appeals, issued August 23, 2018 (Docket No. 339541). In all these cases, the wife apparently felt that both her attorney and the mediator abandoned her in her hour of need. Divorce is stressful, and divorce mediation is stressful, so maybe there’s nothing the mediators in these cases could have done to help these distraught wives. But these mediations only spawned more litigation, and the unpleasant experiences of these mediation parties give a bad name to the profession.

Complying with the screening law is not just a way to ferret out cases inappropriate for mediation; it’s a way to conduct a better mediation – one that is less likely to be challenged in the Court of Appeals.

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