Mediation in family law reduces trials, gives litigants more control

Emily Parkin

Matthew Brandes

The Iowa Supreme Court this month continued its mandatory mediation in family law cases in an effort to move along cases that may have been delayed by the pandemic because mediation often can lead to quicker resolutions without trials.

Mediation can help in situations where people are angry or upset with each other, don’t understand each other’s views or when communication has just stopped. It also can save people money and time by avoiding trials or requiring less legal assistance if agreements are reached.

The goal of the court in continuing the mandatory order is to reduce the number of trials and to speed up the process for those needing a trial or reaching a legally binding agreement.

The mediation has to be done within 120 days of when a petition is filed. Individuals must complete mediation before receiving a trial date.

Matt Brandes, a lawyer and approved mediator for family law, said a mediator is just a neutral person who comes in to help two individuals reach a mutual agreement.

“It’s kind of like a coach to help them understand the nature of the dispute and how can it be resolved,” Brandes said. “We have no power to order decisions.”

He has been a mediator since 1995. The 6th Judicial District started doing mediations about 30 years ago. One of the judges, William Thomas, was a “pioneer” of this kind of dispute resolution.

Many of the approved mediators in the 6th District are lawyers, but some are non-lawyers who can “facilitate a thoughtful discussion” and help people resolve their own issues, Brandes said. Mediators must go through 40 hours of initial training.

There are dozens of approved mediators in every district across the state, according to the statewide list. The mediators list what they charge per hour — the majority seem to charge $100 to $200. Those who need financial assistance can apply for a reduced rate.

Mediation can be used to resolve custody and visitation issues, paternity, divorce — anything financial or related to child issues, Brandes said. Mediators are trained on how to keep a discussion productive. They try to find out what can be agreed on and what the actual issues are, without emotions influencing the discussions.

“I usually have a two-hour mediation session because it can very emotional and draining for the people involved,” Brandes said. “You probably don’t want to be longer than that.”

Brandes admits that’s not always easy, but mediation gives individuals more control over the outcome.

“Very few (sessions) are a waste of time, even if there are no solid agreements,” Brandes said. “Sometimes, they may reach an agreement on some things and leave others for a judge to decide.”

A memo of understanding — a mediation report — is the goal of the session. It isn’t legally binding and is kept confidential by the mediator, Brandes said. Some will take it to their lawyer or will include it in a settlement agreement. Some are more compliant with their court order when they have included their agreements from mediation, he said.

Kellee Cortez, 6th Judicial District court administrator, said many of the eight Iowa judicial districts already had mandatory mediation or some form of alternative resolution in family law cases before the pandemic.

The 6th District, which includes Benton, Iowa, Johnson, Jones, Linn and Tama counties, required mandatory mediation in all family law cases before the court ordered it in 2020. A few of the districts had mandatory mediation only in cases involving children.

Iowa Judicial Branch report

The annual Iowa Judicial Branch report shows 36.9 percent of family law cases had been pending over a year in 2021. That number was at 27.5 percent in 2020 and 20.3 percent in 2019. National standards dictate that there shouldn’t be more than 2 percent of family law cases pending over a year.

The judicial branch has been working to move cases through the courts faster, according to the 2021 report. There has been some improvement in the criminal cases, which have a higher priority under Iowa’s case processing order. Nearly 23 percent of felony cases were pending over a year. The national time standard for those also is no more than 2 percent.

More than 43 percent of the 6th Judicial District’s family law cases were pending over a year in 2021, according to Iowa Judicial Branch data. That number was 26.6 percent in 2019 and 35 percent in 2020.

Cortez said the district has always had longer dispositional rates for pending cases, so that trend isn’t a result of the pandemic. She didn’t have the numbers but said Linn County usually has a large number of self-represented litigants, which require additional court resources.

The district has developed some expertise with a court administration staff member who can help those without a lawyer, Cortez said. During the pandemic, this district has implemented some case flow management tools to have earlier monitoring by the court and additional resources available for those without lawyers.

“I think this will result in our dispositional rate decreasing in family law cases, but it will take some time for that to show up in the numbers,” Cortez added.

Task Force Chairman Iowa Supreme Court Justice Thomas Waterman and co-chairs Matthew Brandes and Lora McCollom, both attorneys, and attorney William Howe pose in June 2015 at the CLE Center of the Iowa State Bar Association during the first planning meeting of the Family Law Task Force. (Iowa Bar Association.)

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Mediation in family law reduces trials, gives litigants more control

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