Fall 2010-#1. Achieving Lasting Settlements for Vermont Families: Justice, Equity, and Self-Determination.

• Author: by Susanne Terry, M.S. and Christine Packard, J.D.

Vermont Bar Journal

2010.

Fall 2010-#1.

Achieving Lasting Settlements for Vermont Families: Justice, Equity, and Self-Determination

THE VERMONT BAR JOURNALVolume 36, No. 3Fall 2010Achieving Lasting Settlements for Vermont Families: Justice, Equity, and Self-Determinationby Susanne Terry, M.S. and Christine Packard, J.D.In 1985 Vermont made its first foray into providing court-related alternative dispute resolution (ADR) services by establishing a pilot small claims program in the Washington County Court. Funded by an American Arbitration Association grant, this project provided enough evidence of success that similar projects emerged in other parts of the state. The creation in 1988 of the Rutland Family Court Program provided the foundation for what eventually came to be known as the Vermont Family Court Mediation Program under the direction of the Court Administrator's office and funded in part by the legislature.

Principles in the Creation of the Mediation Program

The Mediation Program was created and shaped by several guiding principles. These principles are procedural justice, equity of access, self-determination, and protection of the vulnerable.

* Procedural justice is defined by Nancy Welsh, Assistant Professor of Law at Dickinson School of Law and author of a number of articles on procedural justice in mediation, as "an experience of justice."(fn1) It is more specifically defined by Richard Posthuma as "a psychological concept that refers to individual perceptions of the fairness of procedures that are used to make decisions."(fn2) Posthuma distinguishes between procedural due process and the concept of procedural justice by stating that procedural due process is "a legal concept that refers to the fairness of legal proceedings in a judicial setting."(fn3) He points out that with procedural due process "society's rules are consistently and accurately applied" and individuals are provided "with an opportunity to participate in decisions that affect them, thereby showing them dignity and respect."(fn4)

According to Welsh, the three most salient indicators of a dispute resolution system that is considered to be "procedurally just" are that disputants have: (1) adequate opportunity to tell their story and experience control over how it is told; (2) confidence that a fair and evenhanded third party heard and understood the story; and (3) been treated with respect and dignity.(fn5) Procedural justice research demonstrates that the disputants' perception that a process was procedurally fair impacts whether they evaluate the final outcome as substantively fair. Even disputants with a less than favorable substantive outcome reported satisfaction when they experienced procedural fairness.(fn6) McAdoo and Welsh state that the public is likely to view the process as trustworthy if clients perceive that they have been treated with fairness and dignity.(fn7)

* Equity of access to services is a commitment on the part of the court to see that alternative processes have adequate funding so that families with fewer resources can benefit from ADR. When the Mediation Program was created, the judiciary and the legislature agreed that parties should not be required to use a settlement procedure affordable to some and not to others. Vermont is a pioneer state in that its legislature provided funding to be used for subsidies in the Mediation Program. Families with minor children pay for services according to a sliding scale based on need. Through the use of such equitable billing practices every litigant has access to services.

* Self-determination of the parties is a profession-wide principle that insures that parties make decisions regarding what is best for their family rather than what serves the court. According to the Model Standards of Conduct for Mediators, adopted in 2005 by the American Arbitration Association, the American Bar Association, and the Association for Conflict Resolution: "Self-determination is the act of coming to a voluntary, un-coerced decision in which each party makes free and informed choices as to process and outcome. Parties may exercise self-determination at any stage of a mediation, including mediator selection, process design, participation in or withdrawal from the process and outcome."(fn8) The standards also state that "A mediator shall not undermine party self-determination by any party for reasons such as higher settlement rates, egos, increased fees, or outside pressures from court personnel, program administrators, provider organizations, the media or others."(fn9) The prevailing standards for divorce and family mediators make it quite clear that since it is the parties who live with the decision and it is the parties who are the key players in the interactions and negotiations, the mediator and the courts may not take the liberty of exerting pressure upon the parties. As the Model Standards of Practice for Family and Divorce Mediators states: "The family mediator's commitment shall be to the participants and the process. Pressure from outside of the mediation process...