Perceptions of Safety: Overcoming a Codified Mediation Objection
Let’s say one party wants to have a mediation and the other party does not. Or let’s alternatively, let’s say both parties want the mediation but one party is physically scared of the other party. In either circumstance, the party does not want to hold the mediation as ordered, or wants something a bit different. When a Texas court orders mediation about a family law matter, the party who does not want to hold the mediation has several different options.
The party ordered to mediation has 10 days to object according to the statute: TCPRC Sec. 154.022. NOTIFICATION AND OBJECTION. (a) If a court determines that a pending dispute is appropriate for referral under Section 154.021, the court shall notify the parties of its determination. Any party may, within 10 days after receiving the notice under Subsection (a), file a written objection to the referral.
The party who does not want to hold a mediation can object to the order to mediate stating a reasonable objection. The statute, TCPRC Sec. 154.022. (c) is clear that if the court finds that there is a reasonable basis for an objection filed under Subsection (b), the court may [elect to] not refer the dispute under Section 154.021.
Even so, the court can overrule objection to mediation. This is found in TCPRC Sec. 154.022. NOTIFICATION AND OBJECTION. (a) If a court determines that a pending dispute is appropriate for referral under Section 154.021, the court shall notify the parties of its determination. (b) Any party may, within 10 days after receiving the notice under Subsection (a), file a written objection to the referral.
One of the key objections that carries particular weight is the family violence objection to holding mediation: The victim of family violence may object to the Court entering the terms reached at the mediation under certain circumstances. This objection may be filed at any time prior to the final order to mediate. Attorneys who handle matters involving family violence should give special attention to this detailed codified basis for objection and the procedures expressed in the Family Code:
- Tex. Fam. Code Sec. 153.0071. ALTERNATE DISPUTE RESOLUTION PROCEDURES.
A party may at any time prior to the final mediation order file a written objection to the referral of a suit affecting the parent-child relationship to mediation on the basis of family violence having been committed by another party against the objecting party or a child who is the subject of the suit. After an objection is filed, the suit may not be referred to mediation unless, on the request of a party, a hearing is held and the court finds that a preponderance of the evidence does not support the objection. If the suit is referred to mediation, the court shall order appropriate measures be taken to ensure the physical and emotional safety of the party who filed the objection. The order shall provide that the parties not be required to have face-to-face contact and that the parties be placed in separate rooms during mediation. This subsection does not apply to suits filed under Chapter 262.
So here is an overview of the Family Violence Objection process: 1) Object on the basis of family violence to either the parent offering the objection or the subject child; 2) On making the objection, the presumption shifts and becomes that the mediation should not be held; 3) hold a hearing to overcome presumption of no mediation, which is decided by preponderance of the evidence; and 4) If mediation is ordered, then Court shall order appropriate safety measures. These can include separate rooms, as well as no face-to-face contact between the parties.
In sum, the parties to a lawsuit do have to be formally notified of the order of mediation, the parties have an opportunity to raise a reasonable objection to potentially prevent the mediation, and the law recognizes family violence as a valid objection to holding a mediation, though the solution in a family violence situation may be an adaptation of the mediation to allow communication without actual contact or threat of physical interaction.
As a mediator, there needs to be a conscious awareness of the power differential between the parties. When one party is physically intimidated by another party, gaining the trust to get the party to open up and share actual feelings that are inconsistent with the power party of the relationship can take time. Patience is essential, as is listening.
Preventing the opportunity for violence is also essential where there is a past history of violent behavior or serious threats of physical harm. To be sure, the mediator should take reasonable steps to remind the parties not to bring items that could be used as weapons to the mediation. Though in the abstract it may sound unusual, it is not unreasonable—and some mediators do this as a matter of practice—to formally ask the parties if they have weapons on their person at the beginning of the mediation. While the parties may be ordered to be in separate rooms, one party may not feel comfortable being at the same facility in different rooms, such as at a law office. The terms of the physical separation may be ordered and the parries can ask the Judge to specify the means by which the physical separation should be carried out. In such situations, asking that the parties agree to a mediation at the courthouse can be a way to help ensure safety. Holding the mediation in a building staffed with bailiffs and fitted with metal detectors can help ensure safety.
In sum, the parties to a heated dispute have options even when violence is threatened or where there is a past history of violence. Regardless of which party may have threatened the other, the mediator should treat both sides the same throughout the process.
About the author: Andrew Tolchin is an attorney and mediator in the greater Houston area, and founder of 713 Mediator, LLC and Tolchin Law Firm, PLLC.