CONCILIATION IN FAMILY LAW

In Arizona, a marital conciliation meeting is granted when either the petitioner or respondent in a marital dissolution proceeding believes that there is a basis for marital reconciliation.1

Some of you may be more versed than I in Alternative Dispute Resolution (“ADR”), so it may not shock you to learn that there is an ADR process to help divorcing couples who may desire to reconcile.

To me, however, that was a total surprise! I had been living in a world where I could count the types of ADR on one hand, the tried-and-true processes of negotiation, mediation, arbitration, and case evaluation. Truly, I had never even heard of conciliation, despite the fact that I had participated in one at the Friend of the Court (“FOC”) when I divorced.

Many ADR Processes

Believe it or not, there actually are more ADR processes in the world than my fave-four, including: mini-trials, early neutral evaluations, med-arbs, “rent-a-judge” processes2, conciliation, facilitation, facilitated negotiation, case appraisal, expert determination, the ombudsman process, private judging3, formal processes, informal processes, self-determinative processes, expert determinative processes, and so on. This article talks about the ADR process of conciliation. At its core, conciliation, like mediation and other ADR methods, is designed to assist people in reaching agreement.

Apparently, I Missed That Day

. . . in law school when Professor Bedikian discussed the SCAO article, “Michigan Taxonomy of ADR Processes”4, or I would have known that conciliation is the first process listed; and I would have known that conciliation is

[t]he least formal of all ADR processes, . . . the facilitation of communication between two or more parties by a neutral third-party. The process assumes a mutual and collaborative effort on the part of the disputants to work toward the resolution of their dispute. Conciliation may occur through telephone contacts, written correspondence, or increasingly, through web-based tools. The main feature distinguishing conciliation from the mediation process is conciliation's lack of formal process. Conciliation may also be thought of as the particular technique a judge may use in settlement teleconferences, exploring with parties alternatives to taking matters to trial.5

Conciliation may take place at any time in the legal process, from pre-filing through appeal.

What Is Conciliation?

This article talks about the ADR process of conciliation in the context of Michigan family law. While there are some Michigan conciliators whose goal is to facilitate reconciliation between divorcing couples,6 that goal is not one that Michigan courts order conciliators to strive for, as Arizona courts do. Judges and Referees often use conciliation techniques at Settlement Conferences. And conciliation is not limited in its use to the area of family law.

Black’s Law Dictionary (“BLD”) defines conciliation as an ADR

. . . method that allows two parties to present their sides to a neutral third-party (the conciliator), who then offers them a non-binding resolution. The parties can then accept or reject the proposed resolution voluntarily. Conciliation is a popular way for two parties to resolve their disputes while also staying out of the courts. In addition to staying out of court, conciliation may encourage both parties to be more open and communicative with one another. As an ADR, it can be used in both personal and business disputes.7

BLD goes on to say that conciliation, although it is an ADR process, is not synonymous with mediation or arbitration, highlighting the following similarities and differences.

Comparing Conciliation, Mediation, and Arbitration

Per Jeremy Hogue, Director of Michigan’s 13th Circuit Court FOC Office, the difference between a mediator and a conciliator is that a “mediator . . . does not suggest solutions, and will not have the authority to make any recommendation, or proposed order, if the parties fail to reach agreement as to the disputed matters.”8

Additionally,

. . . a conciliator, though neutral, will often drive the process toward resolution - offering ideas and scenarios that may be desirable to the parties. Ultimately, the neutral party, acting as conciliator, has the authority to suggest terms for settlement even if the parties do not reach agreement. That is, for all intents and purposes, the process this FOC [13th Circuit] office uses for all clients at their initial appointments. Obviously, if the parties already have reached some type of settlement, or are able to do so during the appointment, their settlement, or agreement, is what becomes the proposed order for the court.9

Further, as the Kent County FOC says, “the goal of conciliation is to quickly obtain a temporary order for custody, parenting time, and support for the minor children.”10

Michigan’s FOC offers both conciliations and mediations, conducted by FOC employees, for divorcing couples in Michigan. Conciliations for divorcing couples are also offered by private conciliators in Michigan, who may be cross-trained in family mediation. Likewise, private mediators and community mediation centers provide mediation services for divorcing couples.

Efficacy of Conciliation in Family Law Cases

FOC records in the 13th Judicial Circuit

demonstrate that approximately 70% of . . . families are either able to reach agreement, or have settlement by default on the matter of custody, and a slightly smaller percentage reach agreement, or have settlement by default, as to parenting time. So, a significant majority of the proposed orders regarding custody and parenting time reflect agreements.11

Conclusion

In sum, most divorcing families in Michigan are assisted by FOC conciliators in developing new visions of their families, by agreement between the parents, or upon the recommendation of an FOC conciliator. While the FOC does not aspire to “save marriages” through conciliation; it does aspire to “save families,” which is a laudable goal. Though they may look different than married families, non-married families are still families. And families are forever, married or divorced.

Conciliation is an ADR process worthy of more study, in family law, and in all areas of the law.

(Footnotes)

1 Regina, Wayne F, Applying Family Systems Theory to Mediation, p 121, University Press of America, 2011.

2 Nosyreva, Elena, “Alternative Dispute Resolution in the United States and Russia,” Annual Survey of International and Comparative Law, 2001, Vol 7, Issue 1, Article 3, available at: http://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=1057&context=annlsurvey, last viewed 08/18/2017.

3 Website of the Australian Government’s Attorney-General Department, available at https://www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Pages/default.aspx,Last viewed 08/18/2017.

4 Available at http://courts.mi.gov/Administration/SCAO/OfficesPrograms/ODR/Documents/Taxonomy-of-ADR-Processes.pdf. Last viewed 08/21/2017.

5 Ibid.

6 Peacemaker Guidelines, available at http://peacemaker.net/guidelines/. Last viewed 08/21/2017.

NB: the guidelines and the organization are not without controversy. See: http://thewartburgwatch.com/2011/08/05/peacemakers-ministries-true-conflict-resolution/. Last viewed 08/21/2017.

7 Black’s Law Dictionary, available at: http://thelawdictionary.org/article/three-surprising-facts-conciliation/. Last viewed 08/21/2017.

8 08/21/2017 e-mail from Jeremy Hogue, Director, 13th Judicial Circuit Court FOC to Marie Walker.

9 Ibid.

10 Kent County FOC Website, available at https://www.accesskent.com/Courts/FOC/conciliation.htm. Last viewed 08/18/2017.

11 08/21/2017 e-mail from Jeremy Hogue, Director, 13th Judicial Circuit Court FOC to Marie Walker.