THE NEW ERA OF MEDIATION IN FAMILY COURT

Maybe your attorney suggested mediation. Maybe your trial judge ordered you and your wife to mediate. Maybe your friends, coworkers, relatives, the guys who’ve gone down “the terrible trial path (read: expensive and ego-busting)” before you have told you that mediation is definitely     the way to go. Or maybe you’ve done your reading on mediation and think it will be a reasonable alternative to, or attempt for a resolution before, a domestic relations trial. If so, then you’ve probably heard these myths:

Mediation is Mandatory

This may be the spoken rule, but there are always exceptions. It is common for judges and mediation-prone attorneys (who avoid trial, even if that mean cramming a settlement down a client’s throat) to pass mediation off as “mandatory.” “Hey, you’ve got to do this,” or “we have a standing order for this,” or “This judge expects us to mediate,” or “Everyone mediates in this county,” etc., are the reasons you will hear. Not so – at least, not for all cases.

For some cases in many counties, mediation may be mandatory. These are usually cases in which one party is or both parties are unrepresented and cannot conduct a trial, cases in which the parties have attorneys and there are several issues that need airing (judges do not like to weed-out the emotional issues from the legal issues) and narrowing and cases in which the parties have attorneys and there are only a few issues, which makes little economic sense for trial. That is, most cases.

However, for cases involving domestic violence, from either party to the other or a child, unequal bargaining power or an absconded party, who has nothing to do with the case, mediation is usually not required. For cases involving domestic violence or unequal bargaining power, the victim-spouse’s safety is more important than reaching a deal. For cases involving an absent party, one who is either physically not present or who refuses to cooperate, mediation is a waste of time and money.

That may be commonsense, but what may not be commonsense is whether your case falls into an exception. If there is a history of domestic violence in your relationship, if you do not feel that your wife will cooperate (maybe she will give a “take it or leave it” offer and sit at mediation for three hours, draining your time and racking-up your attorney fee bill), then you should discuss with your attorney whether you can opt out of mediation. This may require an order from your judge, so be sure to act immediately.

Mediation is Usually Expensive

There are expensive mediators, true, but many counties and private organizations offer free or low-cost mediation services, too. The trick is knowing where to locate them.

You should start with a county list of mediators. Most courthouse clerks keep a list of approved mediators, who sometimes meet licensing and training requirements, depending on the county, with office locations, hours and hourly rates. Do not shy-away from the more expensive mediators, as they may have a success rate better than the cheaper ones. Why spend $200/hour for four hours with a cheap mediator to get the same result you can get in one hour with a mediator who charges $350/hour? You should, of course, pay particular attention to attorneys who are members of a domestic relations association and/or who practice family law.

Ask your attorney for recommendations. Who has the attorney used for other cases like yours? What was the attorney’s success-rate with that mediator? What was the average cost and the cost for cases similar to yours? You can ask these questions of friends, co-workers, etc., who have been divorced, too, but always take their comments with a “grain of salt” – if there were unhappy with the fact of divorce altogether, that will reflect in their appraisal of the mediator.

Or seek private organization mediators. The Association of Attorney-Mediators Online Database is a helpful place to begin your search. The AAM is a non-profit trade association of over        300 attorney-mediators throughout the country who must meet stringent licensing and ethics qualifications. You can search for mediators by case type and location, number of mediations, and even language, at www.attorney-mediators.org.

Mediation is Just Deal-Making

Yes, mediation is about make a deal – a settlement agreement. However, mediation comes in several forms, and not all of them are about making a deal.

For evaluative mediation, the mediator will evaluate the strengths and weaknesses of your and your wife’s respective arguments and make a recommendation based on that mediator’s appraisal of the case and experience with the judge assigned to your case. The mediator may issue a written recommendation, and there may be penalties (such as attorney fee) for not accepting the evaluation if a trial results in a less favorable outcome, but, usually, the mediator’s job end with telling you “how it will probably be at trial.” The point is not to strike a deal, necessarily, but to determine whether you have a shot at winning in trial, then making a decision to settle based on the likelihood that you will or will not win that argument.

For facilitative mediation, the mediator’s job is to help you and your wife reach an agreement regardless of what a trial judge might do. The mediator will help you overcome the pent-up emotions in a divorce and focus on the practical aspects – particularly settling your case before you spend your kid’s college fund on an attorney.

For arbitration-mediation, the mediator will make a decision – which could be binding – if you and your wife cannot reach an agreement. Although some parties and attorneys are fans of arbitration-mediation, it is not advisable when there are children or significant issues (that have not yet been thoroughly investigated) in your case. Matters involving children are almost always subject to the judge’s approval, and you could allow the arbitrator-mediator to make a decision for your property and debts without having all of the information, which a trial judge would, to make that decision.

Moreover, while your statements to a mediator are confidential and cannot be used against you in trial (meaning, the trial judge will probably not hear you say, “She’s just after my money.”), what you say to the arbitrator-mediator, sitting as a mediator, can be used against you as he or she sits as an arbitrator.

There are some good things to engaging in deal-making, however. For most counties, what you say and the documents you produce during mediator are confidential and cannot be used against you to prove liability or a reasonable outcome to your case later. Therefore, you can be free to suggest that you take on a credit card bill to prompt your wife to settle, even if you would argue that she should pay one-half of it if your case is tried. Be sure to talk to your attorney about how the confidentiality rules work in your county, and know what you can and cannot say before mediation.

If mediation is a “must” or, more likely a “to do,” in your case, now you are a more informed. You should, as always, discuss your case progress with your attorney. You may find that trial is, and it often is, more efficient than a day of mediation. But you may also find that, if your case fits the mediation criteria, you can find an affordable mediator and you define your goals for mediation, a day of mediation will settle your case or allow you to evaluate where your case stands before trial.

Suspicious Minds: The Legal and Non-Legal Costs of Surveillance in Domestic Cases

She trounced into the courtroom with an armful of my client’s text messages and e-mails, a briefcase housing a secret video of him kissing his girlfriend swaying with her pointed steps. This was the kind of case I knew would be difficult from the outset. Try as I might to keep the judge from getting bogged down in the battle over who was more at fault for the marriage’s breakdown (which is usually irrelevant to divorce proceedings, anyhow), opposing counsel in this case wanted to rehash every discord that ever erupted in this 20 year marriage. To a certain extent, over my objections, the judge let her – I suppose in a half-pitying gesture to let her client have the proverbial “day in court” and/or to discern whether, amid all the documents and recordings, there was something relevant to property distribution or spousal support. After about ten minutes, the judge threw up his hands and exclaimed, “I’m not hearing this. I’ve had enough. What do you have, a suspicious mind?” The attorney and her client sat speechless. My client leaned over and in a sarcastic/ relieved tone hummed the opening to Elvis’s “Suspicious Minds.” Comical.

But also frustrating. After hours spent arguing over whether the judge would consider these documents and recordings, and hundreds of dollars in attorney fees unnecessarily incurred, we ended right where we could have with a reasonable, rational attempt to settle the case: an equitable division of the marital estate.

You are not alone if you have ever considered tape recording your spouse’s conversations, monitoring her e-mails, hiring a private eye to follow her with her boyfriend, etc., etc. The temptation is great, particularly because technology has advanced so much that tracking and recording devices are small, efficient and affordable. But there are moral, ethical and strategic costs – and, under certain circumstances, criminal costs – that you must understand and discuss with your lawyer first.

The Law

Federal and state laws prohibit surprisingly more surveillance activity than most people think. You should consult with a lawyer in your state to learn more about the law in your state. State law may prohibit more activity or provide different remedies for violations. Michigan, where I practice, for example, prohibits some of the same surveillance methods as federal law (albeit in addition to or when federal law does not apply) but does not provide the same remedies.

The two main federal laws are the Federal Wiretapping Act (FWA) and the Electronic Communications Privacy Act and Stored Communications Act (SCA).

The Federal Wiretapping Act prohibits what most people have in mind by the term “wiretapping.” The pertinent part of the FWA is 18 USC § 2511(1), which provides, in part, that violations occur when one:

   (a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;
   (b) intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when--
      (i) such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; or
      (ii) such device transmits communications by radio, or interferes with the transmission of such communication; or
      (iii) such person knows, or has reason to know, that such device or any component thereof has been sent through the mail or transported in interstate or foreign commerce; or
      (iv) such use or endeavor to use (A) takes place on the premises of any business or other commercial establishment the operations of which affect interstate or foreign commerce; or (B) obtains or is for the purpose of obtaining information relating to the operations of any business or other commercial establishment the operations of which affect interstate or foreign commerce; or
      (v) such person acts in the District of Columbia, the Commonwealth of Puerto Rico, or any territory or possession of the United States;
   (c) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;
   (d) intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; or
   (e) (i) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, intercepted by [certain authorized means],  (ii) knowing or having reason to know that the information was obtained through the interception of such a communication in connection with a criminal investigation, (iii) having obtained or received the information in connection with a criminal investigation, and (iv) with intent to improperly obstruct, impede, or interfere with a duly authorized criminal investigation . . . .
 

A person who violates the FWA is liable in a civil action for, among other things, preliminary and equitable relief, the greater of actual damages or statutory damages of $10,000 or $100/day of violation, punitive damages and reasonable attorney fees and costs. In addition, records and interceptions obtained in violation of the FWA cannot be used as evidence in any proceeding according to 18 USC § 2515.

The FWA does contain an important exception commonly referred to as “the consent exception.” According to 18 USC § 2511(s)(d), it is not unlawful under the Act for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception.

The Electronic Communications Privacy Act and Stored Communications Act, as amending it since 1986, 18 USC § 2701 et seq., prohibits certain methods of accessing electronic communications stored electronically (e.g., the e-mail stored to your “old mail” inbox on an AOL server). The SCA makes it an offense to “intentionally access without authorization a facility through which an electronic communications service is provided . . . and thereby obtain . . . access to a wire or electronic communication while it is in electronic storage in such system.” This is essentially a prohibition on accessing stored electronic messages.

The Situations

Could you commit a civil or criminal wrong simply by tape recording your spouse’s conversations, copying her e-mails, following her with a camera or doing any of the number of things your friends have suggested, you have seen in movies, and so forth? Leaving aside my caveat that you should check the laws in your state, here are some common situations in which the federal laws do and do not apply:

The Fight on the Phone: Your wife calls you in a rampage to complain about the children, your last settlement offer, why you will not pay more child support, the night she thinks she saw you with a girlfriend, your father’s drinking habits, etc., etc., and you record the conversation while it is happening to use as evidence of your wife’s aggressiveness toward you and your family. Because you are a participant to the conversation, you have not violated the FWA.

The Fling on the Phone: You secretly record your wife’s telephone conversation with her boyfriend, during which she complains about the children, your last settlement offer, why you will not pay more child support, the night she thinks she saw you with a girlfriend, your father’s drinking habits, etc., etc., and you record the conversation while it is happening to use as evidence of your wife’s infidelity and her aggressiveness toward you and your family. Because you are not a participant to the conversation and did not obtain the boyfriend’s consent, you have violated the FWA, are liable for damages, costs and attorney fees, and cannot use the recording in court.

The Fling in the Home: You secretly record your wife’s conversation with her boyfriend in your home, where she and the boyfriend have been residing. You are still a titleholder to the home and enjoy access to the home every weekend to be with your children. Have you violated the FWA? The federal circuit courts are split. Some circuits, like the           5th Circuit and the 2nd Circuit, have read an interspousal immunity exception into the FWA under these circumstances, reasoning that Congress did not intend to intrude into domestic relations cases with the FWA because those cases, including the evidentiary rules applicable to them, are “normally left to the states.” Anonymous v Anonymous, 558 F2d 677 (2d Cir. 1977). The majority of circuits, however, hold that the plain language of the FWA contains no interspousal immunity exception. According to one circuit, furthermore, “the legislative history of [the FWA], testimony at congressional hearings, and debates on the floor of Congress inescapably lead to the conclusion that [the FWA] establishes a broad prohibition on all private electronic surveillance and that the principal area of congressional concern was electronic surveillance for the purpose of marital litigation.” Heggy v Heggy, 944 F2d 1537 (10th Cir. 1991).

The Flirt on the Hard Drive: You suspect that your wife is having an affair with someone she met online, so you take your computer harddrive to a computer technician, who retrieves your wife’s AOL saved mail from the hard drive. The e-mails include e-mails between your wife and her lover. Your wife thought she only saved the e-mails to the AOL server. You have probably not violated the FWA because your have not intercepted messages. These were post-transmission e-mails. You have probably not violated the SCA, either, because you did not access the AOL facility through which your e-mail service is provided to retrieve your wife’s e-mails.

The Not-So-Friendly Follower: You suspect that your wife is using the child support you pay to party, so you hire a private investigator to follower her. The investigator takes pictures of her at a party, where she is spending lavishly on drinks with a younger man. The investigator then approaches her, grimacing, and smacks her martini out of her hand, exclaiming “caught ‘ya.” The FWA and the SCA do not apply, but state stalking and assault and battery laws might. Stalking must be conduct without a legitimate purpose, and most states by statute or case law authorize licensed private investigators to obtain information to be used in a legal proceeding. However, approaching the subject in a threatening stance and physically attacking her (such as smacking a drink from her hand) is likely assault and battery.

The Key Stroke Tracker/E-mail Hacker: You suspect that your wife is having an affair online, so you install a free key logger program on the computer in your marital home, where you still reside. The program records every keystroke made on the computer and stores them to a text file on your hard drive. The program records your wife’s passwords to a secret e-mail account. You sign in to her e-mail account using the passwords and print sordid e-mails that she stored to the account sever. You have likely not violated the FWA because you have not intercepted an electronic communication contemporaneously with transmission, but you could have violated the SCA because you printed the saved   e-mails, without authorization, from the account server, not your computer’s hard drive. Bailey v Bailey, 2008 US Dist LEXIS 8565 (February 6, 2008).

The Costs: “We can’t go on together with suspicious minds. . . .”

Keep in mind, these hypothetical situations only apply federal law. Your state laws may afford greater protections – i.e., prohibit more conduct – or mirror federal law. In particular, not all states apply the “consent exception” to state wiretapping laws like the FWA. That means, even though you are a participant to a conversation and would not violate the FWA if you secretly recorded the conversation, you may violate your state’s laws. Your best move is to err on the side of caution – forgo recording, wiretapping, tracing, monitoring, tracking, etc., etc., altogether and always consult a lawyer in your state.

The costs could be great.

Legally, they include criminal charges and civil liability. Not only could you run afoul of the FWA and the SCA, you could violate state counterparts. You could also commit torts (wrongs against persons) for invasion of privacy, infliction of emotional distress, stalking, defamation, and a host of other wrongs.

Morally, you become “the sneaky one” in your family, the tattle-tail everyone else avoids. Every family has the weirdo-uncle or the loner to avoid at reunions or the Chatty Kathy or the Blabbermouth Bill. He or she is the de facto outsider no one trusts. Why jeopardize your status with your loved ones merely for the sake of obtaining information about your soon-to-be-ex neither your attorney nor the judge will likely want to hear/use anyhow?

Strategically, you lose considerable credibility in your case if you stoop so low as to snoop. While compromising photographs posted on Facebook, revealing instant messages about your children, e-mails confirming your spouse’s secret stash of money, etc., do have their place in court, the everyday chatter with a new lover, the occasional trip to the mall, the mundane e-mail that you think has a secret message, and the other things clients typically bring to their lawyers, do not. They may shed light on the breakdown in your marriage. They may prove that your spouse really is cheating on you. But unless they are relevant to child custody or (in some states) spousal support and property division, they are unhelpful. You will only annoy the judge, waste your limited court time (and your money) and look like the crazy spouse with the suspicious mind – or, worse yet, the unfriendly, overbearing, untrustworthy, sneaky spouse who most certainly will not raise friendly, loving, trusting children who respect their mother. In other words, you jeopardize your chance of obtaining a favorable case outcome.

If, after considering the costs and the benefits, you do intend to snoop, be sure to discuss your plans thoroughly with your lawyer or, if you do not have one, a lawyer in your state. Not all snooping is bad, and some could be profitable in court. But the costs of going-it-alone without appropriate legal advice could be greater.