Rule 18.Mediation

REPORTER'S NOTES--2022 AMENDMENT: Rule 18(d)(2) is amended to clarify that mediation can take place either in person or using remote technology. A.O. 49 was initially issued March 16, 2020, in response to the state of emergency resulting from the pandemic. Paragraph 13 of A.O. 49 authorized remote participation in mediation by video or telephone without a stipulation or court order. Further, in anticipation that at some point A.O. 49 would no longer be necessary, the Supreme Court requested that the Advisory Committee on Rules for Family Proceedings consider whether there should be a permanent change to Rule 18 related to remote participation. After considering responses from attorneys who practice family law to a Vermont Bar Association survey and responses from family mediators, the Committee concluded that both in person and remote participation in mediation should be permissible in family proceedings subject to V.R.F.P. 18 at the discretion of the mediator or by order of the court.

REPORTER'S NOTES--2019 AMENDMENT: Rule 18(d)(1) is amended to clarify the process for appointment of a mediator when appointment has been ordered under subdivision (b). Under subparagraph (A), represented parties may choose the mediator. Under subparagraph (B), if the parties do not agree on a choice, or one or more of them is self represented, the parties and the court may agree on a mediator from the Family Division Mediation Program's list of mediators. If the parties cannot agree on an individual, the court may appoint a mediator from the list. If no mediator from the list is available, the court may appoint a mediator whose credentials are at least comparable to those for inclusion on the list. Those credentials include domestic-violence training.

REPORTER'S NOTES--2018 AMENDMENTS: Rule 18(d)(7) is amended to extend its 10-day time period to 14 days, consistent with the simultaneous “day is a day” amendments to V.R.C.P. 6, which adopts the day-is-a-day counting system from the Federal Rules. See Reporter's Notes to simultaneous amendments of V.R.F.P. 1.

REPORTER'S NOTES--2016 AMENDMENT: V.R.F.P. 18(a) is amended for conformity with the simultaneous abrogation of former V.R.F.P. 4 and promulgation of restyled and reorganized V.R.F.P. 4.0-4.3. See Reporter's Notes to those rules.

REPORTER'S NOTES: Rule 18 is added to make clear that mediation may be ordered in a Family Division proceeding and to provide standards and a procedure for the process. The rule is not intended to preclude voluntary use of mediation or another form of ADR by agreement of the parties without judicial involvement. See discussion of Rule 18(c)(1) and (2) below. Simultaneous amendments to V.R.F.P. 4(a) and 9(a) make clear that the provisions of V.R.C.P. 16.3 for alternative dispute resolution no longer apply in the Family Division. The rule is intended to resolve a difference of opinion among Superior Court judges. Some judges were ordering mediation; others declined to do so because there was no express provision for the general use of ADR in the Family Rules. V.R.C.P. 16.3 permits or requires the court to order mediation or other forms of ADR in many types of civil actions. That rule is expressly incorporated in V.R.E.C.P. 2(d), with the result that the process is being used effectively in the Environmental Division. The rules and statutes of a number of other states, including New Hampshire and Maine, expressly provide for mandatory mediation in family cases. See, e.g., N.H. R. Fam. Div. 2.13, 2.14. The Vermont bench and bar generally support the idea of mediation in the Family Division. When used in Vermont, the process has been found generally beneficial for the parties. Specific benefits include (1) management of conflict and decreasing acrimony between parties in disputes concerning parental rights and responsibilities, (2) promotion of the best interests of children, (3) improvement of the parties' satisfaction with the outcome of Family Division matters, (4) increased participation of parties in making decisions for themselves and their children, (5) increased compliance with court orders, (6) reduction in the number and frequency of cases returning to court, and (7) improvements in court efficiency. Rule 18(a) specifies that the rule applies only in the matters covered in V.R.F.P. 4(a)-(q), whether before a judge or before a magistrate under V.R.F.P. 8. Property matters before a master under Rule 4(r) and parent coordination proceedings under Rule 4(s) are excluded because they provide a different, specialized, form of ADR. The rule does not apply in abuse-prevention proceedings under V.R.F.P. 9. See Reporter's Notes to simultaneous amendment of V.R.F.P. 9(a). Other exceptions, including those applicable in cases involving abuse or abuse proceedings, are spelled out in Rule 18(c). Rule 18(b) provides that, with important exceptions set out in subdivision (c), the court may order mediation of any or all issues at any time after commencement of the action on its own or a party's motion on a determination that mediation would resolve or clarify the issues and that mediation would serve the interests of both the parties and the court in “a fair, economical, and efficient resolution of the issues.” Rule 18(c)(1) and (2) make clear that the rule is not intended to preclude voluntary use of mediation by agreement of the parties. Under paragraph (c)(1), the court will not order mediation if the parties certify that they voluntarily engaged in mediation with a neutral of their choice before the action was commenced and file the neutral's report with the court. Alternatively, under paragraph (c)(2), if the parties agree on the record after the commencement of the action that they will engage in mediation and will file the neutral's report by a specific date, mediation will not be ordered. Note that these two provisions come into play only if one party has moved for mediation and withdraws the motion or the court has indicated an intention to order mediation on its own motion. If no motion for mediation has been made or proposed, the parties are free to engage in mediation or another form of ADR at any time as part of their efforts to settle the issues between them. Rules 18(c)(3)-(5) address the problem of abuse, which is a significant risk in using mediation in domestic-violence situations, where an abuser may seek to manipulate or control the other party's responses in the proceeding. As previously noted, mediation is not available in a relief-from-abuse proceeding under Rule 9. As a further precaution, paragraph (c)(3) provides that mediation may not be ordered if an RFA proceeding is pending between the parties or a final RFA order that has been issued in an action between them remains in effect. Under paragraph (c)(4),the court will not order mediation even if such an order is no longer in effect unless “the court specifically finds good cause to believe that mediation would be appropriate in the circumstances.” For example, a court might order mediation if otherwise appropriate, where the parties had an RFA many years previously but have subsequently lived together for a long and continuous period without problems. Under paragraph (c)(5), the court will not order mediation if, even in the absence of an RFA proceeding, there are allegations of abuse or child neglect; the process could involve financial or physical hardship for a party; or there are “other reasons.” Those reasons could include findings of alcohol or drug abuse or other serious emotional or psychological condition, the unavailability of an acceptable mediator within a reasonable time given the demands of the proceeding, or deliberate use of the process by a party to defer action on the merits. Rule 18(d) provides details of the process by which mediation ordered under Rule 18(b) is to be carried out. To assure that any mediator selected has sufficient training and experience to deal with all issues that may arise, including situations of domestic violence, paragraph (d)(1) provides that the court will ordinarily designate a mediator acceptable to the court and the parties from the Family Division Mediation Program's list of mediators. Individuals on that list are selected after meeting significant requirements of experience and training. If no acceptable mediator on the list is available, the court, with the agreement of the parties, may designate another mediator with credentials comparable to the minimum requirements for inclusion on the list. If no acceptable mediator can be found or agreed upon within a reasonable time, as noted above, under Rule 18(c)(4) the court will not order mediation. Other provisions of subdivision (d) describe standard mediation practice. The mediation schedule prepared by the parties and mediator is subject to approval and modification by the court. The mediator must meet separately with the parties at the outset and may do so at any time during the mediation. The parties are to attend all sessions and participate in good faith. They may be accompanied by counsel. Under paragraph (d)(5), if the mediator determines for any reason that the matter cannot be mediated, the mediator may send the matter back to the court for judicial determination. Paragraph (d)(6) provides that any settlement reached must be voluntary. The parties have the right to litigate any issues not settled in the mediation. Under paragraphs (d)(7) and (8), any agreement reached must be filed in court within 10 days by the parties in a writing signed by them and the mediator. If no settlement is reached by the scheduled date, the parties must notify the court in writing. The court may then determine the matter in accord with any agreement that has been reached, or may order further proceedings in its discretion. Subdivision (e), based on V.R.C.P. 16.3(h), has been added to assure appropriate participation in the mediation process.