Burdening access to justice: The cost of divorce mediation on the cheap

St. John's Law Review, Spring 1999 by King, Carol J

Systems of funding are crucial to the implementation of mediation. Unfortunately, private mediation can be costly. In St. Croix, mediators charge $150 per hour.73 In St. Thomas, the hourly rate increases to $200.(74) Some jurisdictions have attempted to deal with the expenses that result from private mediation by dividing them amongst the parties. For example, courts in the Virgin Islands can order parties to pay for court-- ordered divorce mediation, with the cost to be split equally between the parties.75

Other jurisdictions show similar patterns. South Dakota authorizes mandatory dispute resolution and fee allocation between the parties.76 In Wisconsin, judges may order mediation and may also include the mediator's fee in judgments for property division, maintenance, attorneys' fees, and maintenance modification.77 Wisconsin does not address the allocation of mediation fees in custody and visitation disputes, although mediation is favored in such cases and often disfavored in cases involving monetary issues.78

South Carolina permits mandatory mediation of custody and visitation disputes.79 Fees are normally divided equally between the parties.80 Indigent litigants can petition the court for a waiver of the mediator's fee81-a potentially expensive process unless the parties have free legal representation. In Alaska, courts can mandate custody mediations82 and mediators can charge parties up to $150 per hour.83 In Alabama, the court can divide fees-of $100 per hour and up-between the parties.84 In Michigan, the mediating parties may never enter mediation and still be responsible for their fees. In that jurisdiction settling a matter before the mediation hearing does not ensure the return of paid fees. The parties must put the mediation clerk on notice fourteen days before the hearing date or forfeit the paid fees.85

A subset of programs that normally assesses the costs of mediation to parties, provides for free services for the indigent. Some counties in Florida have mandatory party-paid mediation at fees ranging from $75 to $200 per day, but provide subsidized services to the very poor.86 Georgia also refers parties to privately paid mediators, unless the litigants are indigent.87 In Kansas, custody and visitation mediation can cost parties $125 per hour, but free services are provided to the poor.88 In Kentucky, parties in family cases pay fees of $60 per party per session, but volunteer mediators are used where available. In such cases, mediators' fees are waived.89 In Utah, indigents can receive free services, but other parties can expect to pay mediators up to $200 per hour, divided by agreement.90

Rules and statutes permitting the court to assess the mediator's fees between the parties can create expensive, timeconsuming satellite litigation. Attorneys for each party have to prepare for a contested hearing on the parties' relative abilities to pay the fees if the parties do not agree on their own. This further burdens the parties and creates extra work for the court-- work that is meant to be avoided through the implementation of mediation.