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Rule 18 – Mediation

May 14, 2021 | Family Law, Vermont

(a)Applicability. This rule applies to all actions and proceedings under V.R.F.P. 4.0–4.2, 4.3(a)-(c), and V.R.F.P. 8.
(b)Order to Mediate. Except as provided in subdivision (c), the court, on its own motion or the motion of a party, at any time after the commencement of an action or proceeding to which this rule applies may order the parties to participate in mediation of any issue or issues involved in the action or proceeding if the court determines that the issue or issues could be resolved or clarified through mediation and that the interest of the parties and the court in a fair, economical, and efficient resolution of the issues would be served thereby.
(c)Exceptions. The court will not order mediation if

(1) at the commencement of the action or proceeding, the parties jointly certify that they have in good faith voluntarily engaged in mediation with a neutral of their choice regarding the issue or issues that would have been the subject of the court’s order and file with the court a report of the neutral describing the process employed and the results;
(2) at, or at any time after, the commencement of the action or proceeding, the parties jointly agree on the record that they will voluntarily participate in mediation regarding the issue or issues that would have been the subject of the court’s order and will file the neutral’s report of the process and results by a specific date;
(3) a relief-from-abuse action is pending between the parties, or a final order issued in such an action between the patiies is in effect;
(4) a final order issued in a relief-from-abuse action between the parties is no longer in effect; provided that the court may order mediation in such a case if the court specifically finds good cause to believe that mediation would be appropriate in the circumstances; or
(5) the court determines that mediation would not be appropriate due to allegations of abuse, the possibility of undue hardship, or for other reasons.
(d)Conduct of Mediation. In a mediation ordered under subdivision (b),

(1)Appointment of Mediator.

(A) If both parties are represented by counsel. the mediation will be conducted by an individual mediator of the parties’ choice. If the parties do not agree on a mediator, or if one or more of the parties is self represented, the mediator will be appointed under subparagraph (B) of this paragraph.
(B) If the mediation cannot be conducted by a mediator chosen as provided in subparagraph (A) of this paragraph, the mediation will be conducted by an individual mediator from the Family Division Mediation Program’s list of mediators, acceptable to the court and the parties. If the parties are not in agreement, the court may appoint a mediator from the Mediation Program list. If no mediator on the Mediation Program’s list is available to conduct the mediation, the court may designate another mediator with credentials comparable to the minimum requirements for inclusion on the list, including domestic-violence training.
(2) The mediation will be carried out on a schedule prepared by the parties in consultation with the mediator and approved by the court unless the court subsequently, on the request of the parties and mediator, approves a modification.
(3) The mediator will meet with each party separately prior to the mediation and may meet with any patiy separately at any time during the mediation.
(4) The parties are expected to attend all mediation sessions and to mediate in good faith. Attorneys may attend mediation sessions with their clients.
(5) If at any time the mediator determines that the issues are not suitable for mediation, the mediator may refer the matter back to the court to be determined in further proceedings as ordered by the court.
(6) The mediator has no authority to make a decision or impose a settlement upon the parties. Any settlement must be voluntary. The parties may reach a partial settlement of the issues and preserve the right to litigate remaining issues. In the absence ofsettlement, the parties retain their rights to a resolution of all issues through litigation.
(7) Any agreement reached by the parties through the mediation process on all or some ofthe disputed issues must be reduced to writing, signed by each party and the mediator, and filed with the court by the parties within 14 days after the date of the last signature.
(8) If no settlement is reached by the date specified in the schedule approved or modified under paragraph (2), the parties must notify the comi in writing. The matter will then be detelmined by the court as provided in any agreement reached in the mediation and approved by the court or, in the absence of agreement, as ordered by the court.
(e)Sanctions. If a party, lawyer, or other person who is required to participate in mediation under this rule does not appear at the mediation, or does not comply with any other requirement of this rule or any order made under it, unless that person shows good cause for not appearing or not complying, the court will impose one or more of the following sanctions:

(1) The court will require the party or lawyer, or both, to pay the reasonable expenses, including attorney fees, of the opposing party, and any fees and expenses of the mediator, incurred by reason of the nonappearance, unless the court finds that such an award would be unjust in the circumstances.
(2) In addition, the court may upon motion of a party, or upon its own motion, order the parties to submit to mediation, dismiss the action or any part of the action, render a decision or judgment by default, or impose any other sanction that is just and appropriate in the circumstances.

Vt. R. Fam. Proc. 18

Added July 20, 2015, eff. Sept. 21, 2015; Aug. 25, 2016, eff. Dec. 5, 2016; amended Sept. 20, 2017, eff. Jan. 1, 2018; amended Feb. 4, 2019, eff. April 8, 2019.

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 Amendment

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 ofADR 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 ofV.R.C.P. 16.3 f~r 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 ofADR in the Family Rules. V.R.C.P. 16.3 permits or requires the court to order mediation or other forms ofADR 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 ofV.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. I 6.3(h), has been added to assure appropriate participation in the mediation process.