Some times litigants sneak weapons in. I’ll never forget the guy who brought the broken bottle in. His wife had held the bottle by the neck, smashed the bottom off, and threatened him with the jagged end. The bottle was not metal, and it did not beep when it went through the scanner at security. There it was in front of us in a small room when we were doing our status conference. He just wanted to show me what she did!
Here is the point. Of all the players, the courts have background information on litigants that mediators simply do not have. Family Court Facilitators and others conduct initial status conferences and actually see the parties up close and personal. These initial contacts are usually made before any mediator has contact with the case. Even if the Courts prefer to issue blanket orders to mediate in all cases, it would be good if those orders were rescinded in appropriate cases. Instead, I believe that the courts have abdicated any responsibility to protect the public and mediators through differential case management. Today in many of Colorado’s judicial districts, the courts simply issue blanket orders to mediate in every domestic relations case, without any thought as to the potential dangers involved. Often these orders do not advise the parties that the presence of domestic violence is a valid reason to object to the order. It is usually mediators who have to figure out for themselves if a case is volatile enough to pose a threat to life and limb.
The Courts alone are protected by a secure line policed by sheriff deputies. I have requested space to mediate in one Denver metro court house, only to be told that all space was reserved for ODR mediators. Today, the Supreme Court recognizes that ODR mediators mediate an ever smaller percentage of domestic relations cases. That puts more private mediators and domestic violence victims at risk in less secure settings outside of the courthouse.
True enough, domestic violence is one reason for a victim to object to an order to mediate, but the vast majority of litigants are unrepresented, so the courts are asking unrepresented victims to know the law well enough to argue against an order from the court.
Minimally, private mediators must be allowed to hold court ordered mediations behind the secure line afforded by courthouse security. Even if such a privilege were conferred on non-ODR mediators, it would only be effective where the mediator is experienced enough to know what to look for when assessing a case. The current proposal for credentialing mediators requires zero actual mediation experience, let alone sufficient experience to recognize a dangerous case. Unless the courts are willing to screen cases and exercise differential case management, I humbly suggest that the draft standards require perilously little on the job training. I think the position taken by the Mediation Association of Colorado is more aligned with the public interest.