Anthony J. Libassi, M.S., C.R.C. Clarks Summit, PA (585-7961)
In effect since January, 2000 in Lackawanna County
A) WHAT IS IT?
The Lackawanna County Family Court Mediation is an alternative to litigation where a neutral person helps two (2) parties in conflict reach a resolution with the ultimate goal of agreement. The parties can agree to mediate any issue of Custody. Attorneys may agree to send their clients to Mediation. The parties may also be Ordered to Mediation by the Court as a requirement before a custody hearing is scheduled after a Custody Conference fails to yield an Agreement or if custody issues are unresolved after a PFA hearing.
The sessions are conducted by an individual called a "Mediator". Mediators follow written Standards of Practice set out by the Society of Professionals in Dispute Resolution and the Academy of Family Mediators. This publication is available at the office of the Program Administrator. Mediation Administrator, Anthony J. Libassi, either conducts the Mediation sessions himself or assigns parties to a specific Mediator based on information received from the referral source.
The Mediators have completed a specialized
training program approved by the Academy of Family Mediators. Specifics
on the training program can be obtained from the Mediation Program
Administrator. There are approximately forty (40) lawyers or health
care professionals in the Lackawanna County Area who have completed
specialized Mediation training, however, some are not currently part of the Lackawanna County Family Court Mediation Program. A list of Mediators is available at Lackawanna County Family Court. Attorneys are free to refer clients to trained Mediators who are not currently part of the Lackawanna County Family Court Program, however, the Family Court funding arrangements may not be applicable (See Section F - below).
Upon amval at the Mediator's office, the parties are requested to fill out a simple intake form which will include general information, attorney's names and a brief statement of the issues to be Mediated. They are also required to sign an Agreement to Mediate (Exhibit "C"). The Agreement outlines the responsibilities of the Mediator and the parties and explains the mediation process and confidentiality. Mediation sessions include only the parties and the Mediator. The Mediator may choose to meet with the parties separately at some point during the mediation process. The Mediation sessions do not include attorneys, non-parties or children.
The Mediator does not give legal advice or provide psychological therapy for the individuals. The Mediator also does not review psychological reports or custody evaluations and will not render a decision or recommendation of any kind if the parties do not reach an agreement. The parties are informed by the Mediator that Mediation is an opportunity for the parties to avoid litigation by attempting to resolve their differences themselves with the help of the Mediator. However, parties should be aware that Mediation is not therapy. They will be permitted to state their reasons for their positions but will not be permitted to engage in extensive arguments. The Mediator will try to keep them focused on the conflict issues.
party will be asked to state what issues are in conflict. The issues
will be addressed one by one with difficult issues handled last. If
issues can not be settled after several sessions, the Mediator will
terminate Mediation. If the parties reach agreement on issues, they
will enter into a Proposed Memorandum of Understanding which will be
turned over to their attorneys. The Memorandum of Understanding
presents the agreements of the parties in plain language. It is not
B) WHEN IS IT APPROPRIATE?
Mediation is designed as a method of alternative dispute resolution that can be used in an attempt to resolve almost any type of conflict. Exceptions are cited in Section C - below.
Parties otherwise Ordered to stay away from each other under a Protection From Abuse (PFA) Order may still participate in Mediation if there is not a determination of stalking or severe violence and/or the parties agree to Mediate. The issue of severity should be decided by the Judge and appropriate notations or Modifications to the PFA Order should be made through Court and Counsel before these Parties begin Mediation.
C) WHEN IS IT NOT APPROPRIATE?
Mediation may not appropriate for cases which focus on the following issues:
- a jurisdiction issue is pending
- either party has been diagnosed with a psychological disorder which would hinder his/her ability to participate effectively (IE: bi-polar condition, schizophrenia, personality disorders)
- psychiatric reports are pending
- a history of serious physical violence/stalking
- an Indicated finding of physical/sexual child abuse
- a pending CYS and/or police investigation of physical/sexual child abuse
Mediation consists of one (1) to four (4) seventy (70) minute sessions. The sessions are usually held weekly until completed. The Mediation process is complete when: 1) Agreement has been accomplished by the parties; 2) The parties fail to reach Agreement after three (3) or four (4) sessions OR 3) The Mediator dismisses the parties from Mediation in the first or second session with a Notice to the Court that Mediation has been unsuccessful.
Mediation Sessions are usually held at the office of the assigned Mediator by appointment.
The first three (3) sessions of Mediation through the Lackawanna County Mediation Program are currently free of charge if Ordered by the Court. The fourth session will also be free of charge if that session is used to finalize a Memorandum of Understanding that appears to be forthcoming at the end of the third session. If the parties choose on their own to continue Mediation after the third session or if the parties choose on their own to return to Mediation after the free sessions are completed, they will be billed personally at the standard hourly rate of the Mediator. Tony Libassi currently charges $40.00 per person per hour for Mediation outside of the Court Program. The cost of other Mediators may vary.
Since the Lackawanna County Mediation Program began in January of 2000, statistics are not currently available.
H) WHERE IS THE ATTORNEY DURING THE PROCESS?
The parties are expected to cease litigation during the Mediation process but are instructed to utilize their attorneys throughout the Mediation process to ensure that legal issues do not conflict with the Agreements of the parties. However, since Mediation is completely confidential, Mediators can not discuss cases with the attorneys. If there is a legal issue that is in conflict with an Agreement proposed in Mediation, the attorney should advise the client of the conflict and the client should bring the matter to the attention of the Mediator.
According to the Mediation Program Administrator, the role of the attorney is vital throughout Mediation. The goal of Mediation is to produce a Proposed Memorandum of Understanding which will include the Agreement that the parties accomplished during Mediation. The Memorandum is not synonymous with a Custody Agreement and is in no way binding on the parties. The Memorandum will be presented to the parties' respective attorneys for review at the end of Mediation. The attorneys then discuss the Memorandum with their clients, make changes if necessary with opposing counsel, draft a Custody Agreement based on agreements contained in the Memorandum and present it to Court with an Order.
I) TESTIMONY AND EVIDENCE
The Mediation Program offers the Attorney very little in terms of testimony and evidence. Mediation is a completely confidential process aimed at amicable resolution. The only exception to confidentiality is if a situation arises where the Mediator believes that a parry is a danger to himself or to others. Under such circumstances, the Mediator will contact the attorneys, the Court and the appropriate legal authorities (IE: police or CYS).
The Mediator will not testify in Court and will not keep records and notes. The Mediator's report to the Court consists only of whether the parties appeared for Court Ordered Mediation and whether Mediation was successful or unsuccessful. If Mediation was unsuccessful, the Mediator does not provide a reason for why Mediation was unsuccessful.