Article on Appellate Mediation in Domestic Relations Cases


By Deborah Kane Rein 

In September 2009, the New Hampshire Supreme Court launched an appellate mediation program designed to provide final settlement opportunities to parties in most non-criminal cases. [1] Since then, 192 cases have been referred to the Office of Mediation and Arbitration (OMA) for mediation.  The settlement rate of all appeals that have gone to mediation through OMA in the last three years is about 60%.[2]

Despite the success of the appellate mediation program, it is underutilized for domestic relations cases. Of the 192 cases referred since the program’s inception, only 27 have been domestic relations cases. In 2013, the NH Supreme Court accepted 58 domestic relations cases eligible for the Appellate Mediation Program; only eight of those cases opted for mediation.  Since the average settlement rate for domestic relations appeals under the OMA in the last three years has been about 63%, those numbers represent a lost opportunity.

It is unclear why so few domestic relations litigants and lawyers fail to take advantage of the Appellate Mediation Program. This article is an attempt to encourage participation in what has become a great opportunity for parties to reach a satisfactory conclusion to their family dispute.

Deciding to mediate

Because, in New Hampshire, appellate mediation is a voluntary process, a lawyer must help their client decide whether they choose to take this direction.  They can report that mediation has a considerable success rate and should discuss the advantages of mediation: the potential savings in time and money and the opportunity to create a realistic solution that go beyond the parameters of the appeal. The savings in time and money cannot be understated; if the Supreme Court decides in favor of the appellant, the result will be a remand to the trial court, resulting in further litigation costs and, in some courts, unendurable delays.  The disadvantage of mediation is short term only – if it fails, the client has expended $200 for the mediation fee and the attorney’s fees for a day of mediation.

Preparing the client for mediation

As with any mediation, preparing the client’s expectations is key to success.  In order to avoid frustration, a lawyer should clarify that the mediation will take time and they should plan to devote the entire day. Also, there will be long periods of time when the client will not be in active mediation and this is normal.  While it may appear to the client that, during these pauses in action, nothing is happening, they should be assured that quite a bit is happening, the results of which will become clear.

It is also helpful to reiterate that compromise is necessary for a positive result.  The lawyer and client may want to do a cost-benefit analysis prior to mediation to determine the costs of ongoing litigation as well as the benefits of settling within certain parameters.  The mediator does not need to know at the onset what those parameters for settlement are, but the lawyer and the client will need to make that assessment eventually; it is most efficient and accurate to do that prior to the mediation session.

In order to prepare clients for mediation the lawyer can clarify that the mediator will most likely be interested in how they are feeling about the emotions surrounding the case (e.g., the loss of a marriage, relationships with children, financial fears) and will not just focus on the legal aspect of the appeal.  Because this is domestic relations mediation, those emotional feelings and interpersonal dynamics must often be heard and validated in order for a party to move toward a practical solution.  The lawyer can prepare them for some of the conflicted emotions that they will feel throughout the session.

Case preparation

Every case is different and the lawyers involved should make their own judgments as to what documentation they should bring to the mediation. If possible, I will notify counsel[3] if I require other information prior to the mediation.  Otherwise, any relevant court orders will be vital; a review of the notice of appeal and appendix will tell the lawyer what will be in the mediator’s file.  If it is a financial case, a current financial affidavit should always be prepared; even though the party’s current financial circumstances do not necessarily inform the merits of the appeal, it will be crucial in the process of mediation.

Both parties will complete a confidential mediation statement as part of the OMA scheduling process.  It is a form and does not allow for a full and complete confidential summary of a party’s position, but is generally adequate.  On rare occasions, a more complete confidential summary is received either prior to or at the mediation. In most cases, however, an additional confidential mediation statement is not particularly helpful, especially if the notice of appeal and appendix are thorough and complete.

Finally, since mediation is not a judicial process, I am comfortable entertaining pre-mediation questions and comments directly through email, as long as opposing counsel is copied on any correspondence. Patty Cole, the OMA assistant, can assist with questions about the appellate mediation schedule and logistics.

Benefits of the program

According to Chief Justice Linda Dalianis, “The settlement rate for mediated domestic relations cases is equal to, if not a little higher than, the rate for civil appeals.  The Court is very pleased with the results, not just because it creates greater court efficiency, but because it means that individuals can put this chapter of their lives behind them.” In follow-up questionnaire responses, litigants also note the benefits of the process. One litigant wrote, “Many thanks for saving money, time, emotion, and state resources.”  Another stated, “I believe in this program. It saves a lot of grief and costs to both parties involved.”

Results from the questionnaires reveal that the mediations occurring at the Supreme Court result in a positive experience.  Responding litigants generally felt that they had an opportunity to express their opinions and concerns.  All respondents understood that compromise was the foundation for successful mediations and believed that, even though they did not achieve their optimal result, the process was fair and any resulting agreement was appropriate.  The litigants were also appreciative of the creativity that mediation permitted them in fashioning a suitable solution.  Finally, every successful litigant has expressed relief in obtaining closure to a difficult chapter in their lives.

It appears that the NH Supreme Court Appellate Mediation Program is meeting the needs of those domestic relations litigants who have taken the opportunity to engage in this process.  I hope that every lawyer representing a client on appeal seriously consider this as an option with potential long-term benefits that far outweigh the short-term risks.


[1] See Supreme Court Rule 12-A.

[2] This rate does not take into account appeals that settle before mediation and appeals where the consent to mediate was withdrawn.

[3] There is a roster of retired Superior Court Justices and a retired Marital Master who conduct these mediations.  This author is assigned to conduct almost all of the domestic relations mediations.