by Tyrie J. Strong
Mediation is a useful and increasingly popular tool that, when used properly, helps resolve cases and reduce docket congestion. In family law matters, custody decisions reached through mediation tend to be more acceptable to the parties, thus minimizing conflict, as well as avoiding the ugliness of airing “dirty laundry” in trial.
However, a growing number of judges are indiscriminately issuing mediation orders in all family law cases without regard to the cost or appropriateness to a specific situation. These automatic orders sometimes require extensive mediation before the parties may even seek a temporary order pursuant to Idaho Rules of Family Law Procedure (“IRFLP”) Rule 504. When abuse is present, a court order that requires mediation prior to a hearing on a temporary order can lead to additional abuse.
Court orders requiring mediation, whether to impasse or for a minimum of three sessions, can undermine access to justice for low-income or pro se parties. Mediation is popular and mediators are busy. In my experience, mediators typically have full schedules one to three months out. This means that merely requiring even a single mediation session before hearing a motion for temporary custody, support, or other matters, may add months of delay.
When mediation is required before a motion for temporary order can be heard, it may: (1) ignore safety concerns such as domestic violence, or financial concerns such as a pressing need for child support; (2) add to docket congestion by increasing the number of civil protection orders filed in an attempt to address custody issues; or (3) result in more failed mediation efforts and thus more cases going to trial due to rushing to mediation prematurely, perhaps even before discovery is completed.
Mandatory Mediation May Harm Low-Income Persons
A mediation order that requires mediation for a certain amount of time, such as “to impasse” or for “three sessions” denies moderate- to low-income parties’ access to justice by ignoring the party’s financial resources. Moreover, requiring a certain number of mediation sessions may waste parties’ time and money if impasse is achieved sooner – while specifying “to impasse” has the potential of requiring an unlimited number of mediation sessions.
Family Court Services funding is only available for up to six hours of mediation, and exclusively for custody and visitation issues. Mediators in District 1 reserve time in three- or four-hour blocks that cost an average of $1000.[i] I surveyed attorneys in most judicial districts and found their costs to be in the same range. These costs are typically equally split between the parties, although the IRFLP state that the default is for them to be apportioned pro-rata based on the parties’ income.[ii]
Mediation for three sessions is approximately $1500 each, to which 43% of Americans do not have ready access.[iii] Since Idaho’s median household income ranks 32nd among states – in 2021, approximately $6,000 less than the national average[iv] – it is reasonable to infer that a significant percentage of Idahoans would not readily have access to the funds for such mandatory mediation. For survivors of domestic violence, the situation is worse: a recent study shows they have access to an average of a mere $288.90; that is not savings, but what they have access to in totality.[v]
Six hours of mediation is not always sufficient to reach impasse,[vi] leaving lower-income parties who qualify for Family Court Services funding unable to pay for additional hours of mediation to achieve resolution or impasse. Therefore, in many cases parties only have four hours before running out of Family Court Services’ funds, since the remaining funds will not cover a second four-hour mediation session.
An order that requires mediation before a temporary order hearing may be scheduled also significantly delays the parties’ access to relief through the court system and creates pressure to accept any custody agreement for those who cannot afford the court’s requirements.[vii] For example, when a party desperately needs child support, the parties’ children may not be financially provided for during the delay caused by such orders and this may lead to housing or food insecurity. Additionally, in cases where financial abuse is present (i.e., no access to marital resources; not paying rent; destroying the partner’s credit; etc.) or there is a single wage earner, these financial issues may be exacerbated and lead to further pressure to mediate an unfair agreement to obtain some financial relief.
The Idaho Constitution admonishes the courts to dispense justice in Article 1, § 18: “Courts of justice shall be open to every person …” Thus, Idaho waives court filing fees for those who cannot afford it so their access to justice is maintained. These fees are all $250 or less.
However, such mandatory mediation orders threaten a low-income party, particularly one that is pro se, so that the judge refuses them a hearing on a motion for a temporary order or a trial in their case because they cannot afford mediation costs and then cannot comply with an order mandating mediation.[viii] This denies those without resources access to justice. Moreover, this denial of access to justice to indigent litigants may constitute a violation of the Idaho Constitution as well as the Equal Protection Clause of the United States Constitution.[ix]
Delaying Temporary Orders Ignores Safety Issues
A temporary order is often sought for safety reasons, but those safety reasons may not immediately meet the threshold of an “emergency” to bypass an order for the parties to attend mediation prior to scheduling a hearing on a motion for a temporary order.[x] When safety issues exist, a temporary order is needed quickly. Based on my experience, I have created a partial list of a few situations that underscore a party’s need for a temporary order quickly in the box on this page. This list shows how a court order requiring mediation before a temporary order hearing, and especially without considering the presence of domestic violence, denies parties relief, endangers children, and may create more problems than it solves.
Non-Emergency Situations That Require Prompt Temporary Orders
- Emotional abuse inflicted on the parties’ child(ren) which can lead to severe mental distress, resulting in a child self-harming or experiencing suicidal ideation, including:
- putting down the child;
- exposing the child to age-inappropriate situations or material, such as pornographic films;
- emotionally blackmailing the child(ren), such as threatening to put them in foster care; and
- physical abuse of the other parent in front of the parties’ child(ren);
- Emotional abuse of the other parent (experiencing a child being blackmailed; following them around while both provoking them and recording their reactions; angry outbursts and acts of violence such as throwing objects or punching walls, etc.);
- Financial abuse (no access to marital resources; not paying rent; destroying the partner’s credit);
- A desperate need for child support, such as when only one parent works, leading to housing and food insecurity;
- Inadequate supervision of the child by one party, leading to safety concerns and injuries, such as:
- falling in unsafe environments;
- access to sharp or other age-inappropriate dangerous objects;
- wandering off and being hurt; or
- fights with or being bullied by neighborhood children;
- The custodial parent withholding the child(ren) from the other party.
Mediating Under Pressure Leads to Bad Agreements
The purpose of mediation is to reach resolutions that work better for and are more acceptable to the parties than a judicially imposed decree, as well as to achieve them more quickly than a full trial would allow, thus reducing court congestion. However, mediation conducted under unrealistic time pressures or extreme emotional stress can work against these benefits.
Pressure to resolve the issue in mediation can come from many sources. One is when judges require mediation before a desperately needed temporary order can be sought. Another is when the mediation order contains a challenging time deadline, such as achieving one, or even multiple, mediation sessions within 42-45 days when, often, the mediators’ schedules cannot accommodate that. This most impacts those who are pro se and may not know that a judge will often not find contempt when a party is making their best efforts to comply with the court order. A third is when there is an order to mediate for more sessions than Family Court Services can fund when a party cannot pay for it, exacerbated by replacing the pro-rata funding specified in IRFLP 603(h) with a 50-50 cost-sharing order. And lastly, when one party is a bully or abuser who misuses the situation to force his or her will on the other, mediation is not appropriate, as recognized by IRFLP 601 (c)(2)(B) and the American Bar Association,[xi] discussed below.
In each of these situations, instead of mediation leading to a good arrangement, a disadvantaged party is pressured to accept an agreement that will likely need to be modified in the future because the disadvantaged party believes that accepting any agreement is better than no agreement. For example, a terrible custody arrangement is better than continuing to live under abuse, and agreeing to inadequate child support today is better than continuing without any child support and losing your home. Any property/debt agreement is better than risking a fine or jail time for noncompliance with an order because you could not pay for the number of mediation sessions ordered. All these concerns result in a denial of justice to pro se or low-income people contrary to the Idaho Constitution.[xii]
Inappropriate Mediation Orders Increase Docket Congestion
Custody Issues are Pushed into CPOs
In my experience, most judges will agree that civil protection orders (“CPOs”) are for emergency safety issues, and not for resolving custody disputes. The idea is to bring these issues to the judge who will be working extensively with a family in a divorce or custody case. To this end, CPOs are sometimes only granted for long enough to enable a party to seek a temporary custody order.
An order to mediate (especially to impasse or three times) before a temporary custody motion will be heard can result in another motion filing and hearing to extend a CPO protecting the parties’ minor child(ren). This wastes court time and resources and does not promote judicial efficiency. Further, the judge hearing the CPO extension is not able to issue a detailed temporary custody order covering the family’s needs until the trial, so a temporary order is still needed.
Mediating early and fast leads to more trials
In cases involving domestic violence, if a temporary order cannot be sought until after mediation, the presence of safety issues creates an unreasonable pressure to mediate early and quickly. Parties then see mediation as a hurdle to cross rather than a process to fully engage in. There is pressure to take the first mediator available, regardless of personal preference or relevant qualifications to a case, and to reach impasse in one session if impasse is required by a court order, so that a party’s Motion for Temporary Order can be heard.
In my experience, early mediation is more likely to fail than mediation engaged in closer to trial for several reasons. Mandatory disclosures and discovery take time to complete, and engaging in mediation while lacking necessary information to make informed choices increases the likelihood of fruitless mediation. Once Family Court Services funding is used up, even after “wasting” it on mandatory additional mediation, it is gone, and lower-income parties would not be able to mediate again later.
Another reason is that time helps parties be open to more solutions. At the beginning of the court process, the parties may be at their most rigid regarding their desired goals. Parties gain flexibility as they work through issues, information comes to light through discovery, and they live with a custody arrangement on a temporary basis. Later, with a temporary order in place and mandatory disclosures provided, mediation may be more likely to succeed.
Next, in cases involving physical or sexual domestic violence, the results of any pending criminal cases may be necessary to successfully mediate a case. Criminal cases are often concluded before a civil case reaches trial, and they can help provide direction related to a party’s custody concerns. Even if the criminal matter has not been resolved, the parties gain an increasing understanding of likely outcomes as the criminal case progresses, which facilitates a mediated resolution as they learn the strength of their position.
And finally, as trial approaches, parties tend to better appreciate the emotional and financial costs of trial, and this may increase their flexibility when mediating.
Thus, although early mediation may appear to be a way to reduce docket congestion by rapidly resolving cases, I believe the opposite to be true: it is more likely to fail through either non-agreement requiring trial now, or a pressured unworkable agreement requiring another lawsuit to modify the agreement. This, I argue, consumes more of the court’s time than simply hearing a Motion for Temporary Order.
Additionally, pushing custody issues into CPOs also clogs court dockets and involves more judges in a case.
IRFLP and Domestic Violence
The IRFLP address mediation, echoing and replacing Idaho R. Civ. Proc. 37.1. If a child is involved, IRFLP rules 601 and 602 apply.
IRFLP 601 authorizes screening on a case-by-case basis as to whether mediation is appropriate. Consequently, the rules acknowledge that mediation is neither automatic nor appropriate for all family law cases. Screening involves several factors, enumerated in IRFLP 601(c)(2), which include the presence of domestic violence.
When domestic violence or other specified issues are present, mediation may not be appropriate. Indeed, the American Bar Association recommends an opt-out provision when domestic violence is present,[xiii] and the consensus in academic literature is that caution is needed with mediation when there is domestic violence, as it is not always safe or appropriate,[xiv] due to the power imbalance between the parties.
IRFLP 602(b) provides for mediation only when custody of a minor child is at issue (which is when Family Court Services funding is available). IRFLP 603 applies to issues other than custody and visitation. IRFLP 603(d) grants a court discretion to order mediation in these cases if all parties agree that mediation would be beneficial.
In my experience in Idaho’s Judicial District 1, mediation is used extensively. Most judges in District 1 order mediation for every family law case, which results in full calendars for mediators and scheduling delays for parties.[xv] Thus, automatic mediation orders for all cases ignores the need to assess the appropriateness and timing of mediation for each case and can also result in impossible deadlines because they do not consider mediators’ availability.
In order to avoid these problems and make mediation more effective, I propose (1) a status conference based upon parties’ affidavits be held before mediation orders are issued, and (2) a removal of mandatory mediation between the parties as a pre-requisite for a party being able to file a motion for a temporary order.
At this proposed status conference, courts would ideally:
Mediation orders are generally not appealable and an interlocutory appeal is nearly impossible which leads to additional concerns related to a low-income or pro se party’s access to justice in their family law case.[xvi] When a pro se or low-income party agrees to a decree out of financial desperation or to comply with a court order and that is not in the best interest of the child(ren) or is unsafe or unfair to that party, equal access to justice within the court system is unavailable. Similarly, when an abused party feels pressured to agree to anything, even an agreement that is bad for that party or the minor child(ren), rather than have no agreement because they cannot obtain a temporary order for relief, the justice system has failed that party.
Tyrie J. Strong
Tyrie J. Strong worked at Intel as a Software Engineer before attending Gonzaga University School of Law. She graduated magna cum laude with her J.D. in 2021. She now helps survivors of domestic violence through her work at Idaho Legal Aid Services, Inc. in Coeur d’Alene. She is also on the Board of Directors for Safe Passage, a domestic violence agency in Coeur d’Alene.
[i] Of the 14 mediators listed for Kootenai county and 9 mediators in Bonner County, I have previously spoken with and had the pricing for 5 of them, 3 of which were available in both counties. (There is no list of mediators in Benewah, Shoshone, or Boundary counties.) Prices ranged from $200 to $300 per hour, with an average of approximately $250/hour. Two scheduled sessions in 3-hour blocks, two scheduled sessions in four-hour blocks, and one did not specify.
[ii] IRFLP 603(h), discussing mediation of all family-law matters other than custody, which is covered by IRFLP 602 and does not discuss compensation of the mediator, presumably because Family Court Services funding is available. However, a recent proposed rule change would divide costs equally under IRFLP 602 for custody and visitation matters, which could further the power imbalance when there is financial abuse occurring after Family Court Services funding is exhausted.
[iii] Annie Nova, Just 43% of Americans say they could come up with $2,000 for an emergency, CNBC (June 26, 2019), https://www.cnbc.com/2019/06/26/less-than-half-of-americans-have-2000-in-emergency-savings.html.
[v] FreeFrom, Support Every Survivor: How Race, Ethnicity, Gender, Sexuality, and Disability Shape Survivors’ Experiences and Needs 50, Available at: https://www.freefrom.org/wp-content/uploads/2022/10/Support-Every-Survivor-PDF.pdf.
[vi] I have mediated a case for 12 hours – double the amount of family court services funding available. I can conceive of more complicated cases that may mediate even longer before impasse or resolution.
[vii] These lower-income people are often pro se, and generally do not know that they could file a motion requesting relief from the judge’s order, nor how to file such a motion even if they knew it was possible. I have not seen an order allowing for financial relief or instructing parties how to pursue it if needed. A recent order given to a lower-income pro se party made no such allowance beyond the 6 hours of funding from Family Court Services available.
[ix] Idaho Constitution, Article I, Section 18; U.S. Constitution, 14th Amendment (“No state shall … deny to any person within its jurisdiction the equal protection of the laws.”).
[x] A temporary order may be sought under IRFLP 504. IRFLP 505, Temporary Order Issued Without Notice, provides for an expedited temporary order when there is an immediate and irreparable risk of harm.
[xi] American Bar Association, Mediation and Domestic Violence Policy (July 2000). (“That the American Bar Association recommends that court-mandated mediation include an opt-out prerogative in any action in which one party has perpetrated domestic violence upon the other party.)”
[xii] Idaho Constitution, Article 1, Section 18.
[xiii] U.S. Constitution, 14th Amendment.
[xiv] See, e.g., Gabrielle Davis, Loretta Frederick, and Nancy Ver Steegh, Intimate Partner Violence and Mediation: A framework for when and how mediation should be used, Dispute Resolution Magazine (Apr 1,2019). https://www.americanbar.org/groups/dispute_resolution/publications/dispute_resolution_magazine/2019/spring-2019-family-matters/11-davis-et-al-safer/; Jan Jeske, Custody Mediation within the Context of Domestic Violence, 31 Hamline J. Pub. L. & Pol’y 657, 661 (2010) (power and control dynamics leave victims little bargaining power with their abuser, leaving “victims of domestic violence in danger of ‘forced’ mediated custody agreements that do not serve their or their children’s best interests.”); Sarah Krieger, The Dangers of Mediation in Domestic Violence Cases, 8 Cardozo Women’s L.J. 235, 245 (2002) (Arguing against mediation where domestic violence is present, because the power and control dynamics between the couple make it difficult or impossible for the victim/survivor to adequately negotiate a fair agreement); Emma Katz, Domestically Violent Men Describe the Benefits of Abusing Women and Children, Dr. Emma Katz Substack ( July 11, 2023), available at: https://dremmakatz.substack.com/p/domestically-violent-men-describe.
[xv] A recent proposed rule change to the IRFLP suggested mandating that the first mediation session occur within 42 days of the order to mediate. When mediation is ordered indiscriminately at the start of the case, this may be impossible time-wise or restrict parties to an available mediator. Additionally, it introduces all the issues of mediating too soon, prior to discovery, prior to parties understanding the case well enough to be successful.
[xvi] See Stephen Adams and Christopher Pooser, Interlocutory Appeals in Idaho, Idaho State Bar (Feb. 1, 2023), available at: https://isb.idaho.gov/blog/interoluctory-appeals-in-daho-is-there-a-better-process/.