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 The Court, in a 2-1 decision, affirmed the divorce agreement in Pohlman v Pohlman, unpublished opinion of the Court of Appeals, issued January 30, 2020 (Docket No. 344121).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 See also, Nowak v Nowak, unpublished opinion of the Court of Appeals, issued August 23, 2018 (Docket No. 339541).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.

Mediating a Denominational Division

The United Methodists are dividing, and have used a mediator to help them.

Sometimes mediation is used to bring people together, mend fences and repair relationships (e.g., employment disputes). But other times it’s used to help people part ways as amicably as possible, most notably in divorce cases. The split within the United Methodist Church (UMC) is akin to a divorce.

The United Methodists have been wrestling for years over whether to permit LGBTQ individuals to marry and be ordained. After a majority voted last summer to adopt a more conservative stance on the issue, it became clear that all UMC churches could no longer cooperate within the same denomination. But, as in a divorce, the decision to split opens the door to a host of difficult decisions, both financial and emotional. So an international group of Methodist bishops and other church leaders invited Ken Feinberg to mediate.

Mr. Feinberg has mediated a number of high-profile cases in the U.S., including distribution of the 9-11 funds and Catholic priest sex abuse cases. I blogged about him last year, after I heard Michael Lewis’ interview with him.

It does seem a bit ironic that the Methodists selected a Jewish mediator and not a Christian mediator who might be more sympathetic with their core beliefs. Since the main issues in this case involved process and property, they decided that his experience was more important than his religion.  A lawyer, he was assisted by two lawyers from Kirkland & Ellis, Rick Godfrey, who is United Methodist, and Wendy Bloom, a litigator who too is Jewish. By all accounts, the participants were pleased with their mediators. And the mediators benefited too: Ms. Bloom said that, when discussions got difficult, someone would call for prayer, and one of the bishops would pray. “I’ve never encountered pauses for prayer before in mediation, and it really did work. These prayers were inspiring and re-focused everyone on the task at hand.”

Mr. Feinberg told an interviewer that one essential requirement for the mediation was to ensure that the right people were at the table—that all constituencies were represented, and that the representatives truly spoke for, and could “deliver” an agreement. Another was to maintain confidentiality. He saw the three main issues as re-structuring, governance, and financial issues.

The proposal arrived at through mediation, called the Protocol of Reconciliation & Grace Through Separation, must be approved at this year’s General Conference in May. In another irony of this process, the traditionalist majority is the one that’s leaving to form a new denomination, while the minority gets to retain the name. When asked about that, Mr. Feinberg said simply, “That was a decision that was reached by everybody around the table. It became apparent that that would be the result.”

Thoughts on Mediator Disclosures

A Michigan mediator was hauled before the Attorney Grievance Commission for failing to disclose the full extent of her social relationship with one party’s attorney in a divorce case she mediated and arbitrated. I wrote up some thoughts about it, and the Michigan Dispute Resolution ADR Journal published them in their recent Fall 2019 issue, available on the ADR Section website, in an article entitled, “Neutral’s Lack of Disclosure Catches Attention of Attorney Grievance Commission.”

Nursing a Grievance, Resolved

A woman in Brighton MI has settled a dispute with her church regarding breast-feeding at church. I wrote about this shortly after the incident occurred last year, hoping the parties would resolve this by acknowledging one another’s interests, in accordance with Philippians 2:3-4. Instead, it sounds like they resolved it the typical American way, by filing a lawsuit and settling for money.

The mother/plaintiff wasn’t looking for money; the news article says she donated it to non-profits that support breast-feeding. It sounds like the church finally offered an apology that the mother accepted, in contrast with the church’s initial apology last year, which apparently only further upset the mother. She said she didn’t want to sue, and “everything changed” when they agreed on an apology.

It’s sad that this woman believed her only option was to hire a lawyer and sue her church. Instead of contradicting I Corinthians 6:1-7 (“How dare you sue one another?”), she and the church could have looked to one of several biblical peacemaking ministries to assist them, such as Peacemaker Ministries, ICC Peace, or Ambassadors of Reconciliation. These organizations have trained Christian mediators in Michigan (including me) who would’ve been happy to help.

Pastor-Church Conflicts Don’t Belong in Court

Sad to read about the ongoing conflict between James Flakes and his former church, New Mt. Vernon Missionary Baptist. Mr. Flakes served as its part-time pastor for several years, until he was terminated in 2017, which he evidently deemed unfair. Rather than resolve their differences within the church, as St. Paul exhorts Christians to do (I Corinthians 6:1-8), the parties are battling this out in Michigan courts. The Oakland Circuit Court ruled that it did not have jurisdiction over this intra-church dispute – a ruling in keeping with St. Paul’s biblical injunction. But Mr. Flakes persuaded the Michigan Court of Appeals that this should be viewed as simply another contract dispute (Flakes v New Mt. Vernon Missionary Baptist Church, Case No. 345988), so now it will be returned to the Oakland Circuit Court. We hope and pray that the parties will remove this case from the court system altogether, and find caring Christians who will help them resolve this privately. One suggestion for doing that: contact the Institute for Christian Conciliation. The court system is ill-equipped to address the spiritual and relational issues at stake in a dispute like this; these folks need the church.

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