Has the mediator pushed beyond the boundaries of their duties by providing information about the FCA?

This activity addresses module outcomes 2 and 3. Upon completion of this activity, you will be able to: information about the FCA

MO2: Compose an opinion. (CO1, 5)

MO3: Evaluate a mediation based upon the Standards. (CO3, 4)
The MEAC weighs in on various disputes in a mediation when a mediator or CDRC requests it.

Assume that there is a state law in New York that requires the following:
The laws affecting divorce and dissolution of marriage are not subject to the following amendment to Article 6, Child Custody/Visitation of the Family Court Act (FCA).

FCA Section 6789 (A)(1): That separating parents of child(ren) under the age of 18 years, without already possessing a duly executed Order of Custody made by a family court judge must present to the court one of the following, prior to the court considering any application for an Order of (child) Custody:

A fully detailed and complete parenting plan that conforms with the court-approved standard parenting plan form and has been properly executed with the notarized signature of the parents of the child(ren); or

An agreement made because of child custody mediation. Said agreement must be presented to the court and must be on a court approved CDRC’s letterhead; or

An Order of a NYS Supreme Court Justice directing family court to proceed with deliberations under Article 6 FCA.

For the purpose of this assignment, please read the scenario of Jane Doe and John Buck.
As a member of the MEAC, you have been asked to submit a draft opinion for the committee to discuss at its next meeting. You begin to address the following issues:

Has the mediator pushed beyond the boundaries of their duties by providing information about the FCA?
Has the mediator blatantly violated the quality of process by doing so?
Has the mediator, by suggesting a resolution for the parties to agree to, violate the Standards and ethics of a mediator?
Using any of the Opinions referenced in the course or researched on your own as a template, provide your justification in a MEAC Opinion.

Jane Doe and John Buck scenario

Now consider the situation of Jane Doe and John Buck, parents of Bambi (age 18 months). While both parents habitually fawn over Bambi, they have separated and are in a custody battle over who should maintain primary caretaker of Bambi. Currently, Jane and John have each moved back in with their respective parents. Both maternal and paternal grandparents have been able to act as intermediaries so their grandchild has equal and regular contact with his parents. The grandparents have been able remain neutral in Jane and John’s dispute, as they do not want Jane and John to become legal, permanent residents of either of their households. The grandparents of Bambi have all concluded that Jane and John must get custody formalized for Bambi’s sake.

Since they have never married, their access to court is limited by FCA section 6789(A)(1). Jane and John are currently not on talking terms. Agreeing (without third party intervention) on a complete parenting plan is not possible now. Additionally, they don’t have the financial capability to hire attorneys to undertake the difficult process of FCA Section 6789(A)(1). As a result, John and Jane have contacted their local CDRC to secure access to mediation services, to gain access to the family court under FCA Section 6789(A)(1)(b).

Their CDRC has become very familiar with the recently enacted amendment to FCA Section 6789 and has been struggling with several issues related to the role placed on CDRCs by the law. The first question they need to answer is: are they forced to offer mediation services to couples (recently separated) who have a history of domestic violence in their relationship? Please note FCA Section 6789 (A)(1)(c) does not allow a Supreme Court to issue the necessary Order to gain family court access, based on the sole claim of domestic violence. The CDRCs, statewide, have decided to form a unified response committee (referred to as Committee) to address the problem in the law as it relates to forcing parties with a history of domestic violence into mediation.

Previously, the CDRCs have refused to mediate child custody cases where domestic violence is present. The inherent imbalance of power in the relationship between the parties cannot be overcome even by the best mediator. The Committee is seeking your opinion. They understand that several of the Standards of Conduct for mediators of CDRCs, self-determination and quality of the process come into play here. They are asking for aa drafted response to the law’s impact on the victim of domestic violence being forced into mediation for access to family court to obtain an Order of Custody. They want to know if the Standards involving self-determination and the quality of process have been redefined by the law in question for mediations involving child custody (only for those parents who have not been married and have no existing Order of Custody) or have been so negatively impacted that any mediation under this circumstance would not be classified as mediation at all.

Now assume that Jane and John have not had an underlying history of domestic violence in their relationship and the CDRC has cleared them for mediation. Assuming they have attended three mediation sessions already and have not been able to come to an agreement.

The mediator knows Jane and John have only come to mediation because of the FCA Law.

The parties ask the mediator to draft a letter on CDRC letterhead explaining that they could not come to an agreement now and are requesting the mediator be willing to appear in court to further explain the mediation process did not successfully bring the parties to any agreeable terms.

The mediator is aware that he cannot be summoned to court for this purpose and would be possibly relieved of his mediator duties by the CDRC if he agreed to their request.  However, the mediator is familiar with an amendment to the FCA and offers an alternative suggestion that would be accepted by the parties and by the court.

A simple custody arrangement sharing equally custody of Bambi, John and Jane agree with this arrangement as it will at least give them reason to continue litigation in court for a more specific parenting plan.

The CDRC is very unhappy with the mediator’s suggestion to the party, as it goes beyond the bounds of mediation and the regulations set forth by the CDRC. Because of this, the director of the center refers to the MEAC for an official Opinion on the matter

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