Mass. couple’s divorce decree can’t compel mediation

BOSTON — A husband and wife could not be compelled to engage in mediation at their own expense as a condition of their being permitted to file actions in the future to enforce or modify the terms of their divorce, the Massachusetts Appeals Court has found.

The husband argued that his right to free access to the courts under Article 11 of the Declaration of Rights of the Massachusetts Constitution was violated by a clause in his divorce decree requiring the parties to engage in, and pay for, court-directed mediation before either could file any subsequent action in court.

The Appeals Court agreed, vacating an order by Hampden Probate & Family Court Judge Anne M. Geoffrion.

“The effect of the judge’s order prevents the parties from bringing a subsequent action in the Probate and Family Court until they have borne the costs of mediation,” Judge William J. Meade wrote for the unanimous panel. “This is an unconstitutional burden to the parties because it delays an objecting party’s right to file a complaint in our courts, and also because it forces the parties to bear a likely costly expense for court-ordered mediation services.”

The 13-page decision is Ventrice v. Ventrice, Lawyers Weekly No. 11-026-15. The full text of the ruling can be found by clicking here.

Voluntary process

The husband was represented by William M. Driscoll of Chelmsford. He attributed the mediation order in his client’s case in part to a “push” in the Probate Court to obtain some relief on the docket.

“The downside is, you can’t mandate that; it takes people’s access to the court away,” he said.

A former mediator, Driscoll said the process has to be voluntary.

“If one party doesn’t want to do it or wants out, it has to end,” he said.

Driscoll also said the “no file” aspect of the lower court’s mandatory mediation order could be particularly problematic for parents seeking a modification of child support.

“That’s retroactive to the day that the person gets served, but they can’t get served until you file,” he said. “The person who is defending is going to want to postpone mediation and push out that first date.”

Bradford B. Moir of Westfield represented the wife. While his client took no position on the mandatory mediation issue in the appeal, Moir agreed with the Appeals Court’s resolution of that issue.

“I’m sure this decision is correct, otherwise it makes it really tough for these litigants to get back into court,” he said.

However, Moir sympathized with the trial judge’s effort to steer the case toward mediation, noting that the parties had already experienced a highly contentious three-day trial.

William M. Levine, who runs a family law dispute resolution service in Westwood, said his work as a mediator does not have him at odds with the holding in Ventrice.

Apart from the constitutional basis for the court’s decision, court-ordered mediation simply is not a good idea in highly contentious divorce proceedings, Levine said.

“People enmeshed in that kind of fight are least likely to make good use of mediation, particularly when they lack the emotional skills,” he said.

Jennifer A. Bingham of Grindle Robinson in Wellesley noted that in addition to violating Article 11, the lower court judge’s order was contrary to the Supreme Judicial Court’s Uniform Rules on Dispute Resolution, which define mediation as a “voluntary process.”

“The Ventrice order wasn’t in conformity with those uniform rules because one, it required the parties to pay for it privately, and two, it then precluded them from seeking judicial intervention,” she said.

Bingham called it “very unusual” for a court to mandate mediation, particularly at the parties’ expense.

“Conversely, if the parties had included enabling language in their separation agreement, the court certainly would have been well within its authority to enforce that provision through a mechanism like a complaint for contempt,” she said. “We do see that often.”

Greenfield domestic relations attorney Mark I. Berson said he had never seen a mediation order as definitive as the one in Ventrice.

“Most judges will explain to litigants that they cannot order mediation because of the fact that it’s a voluntary process,” he said.

The decision shows the resistance of the Appeals Court to judges surrendering their ultimate decision-making authority, he said.

“If somehow the [lower] court doesn’t get the final say, the [Appeals Court] is going to turn it down as an abrogation of the litigant’s right to have his or her case decided by a court or impartial magistrate,” Berson said.

Mandatory mediation clause

The parties were married in 2001 and had four children while they were together.

The wife filed for divorce in 2010. A guardian ad litem appointed by the trial court to conduct an evaluation of the family described the husband as being “the stable parent” and noted that the children were calmer when they were with him. The GAL described the husband’s house as “clean and orderly” and the wife’s home “unorganized and chaotic.”

The GAL ultimately recommended that the husband be given sole custody of all four children.

After a May 2012 trial, Geoffrion found that the parties were unable to co-parent and awarded sole custody of the oldest daughter to the husband, and sole custody of the three younger children to the wife.

In addition, the judge’s divorce decree contained a provision expressly imposing an obligation on the parties to attempt to reach an agreement regarding compliance with the judgment.

Further, the judgment stated, “[i]f the parties are unable to reach an agreement, the parties shall engage the services of a mediator before either may file an action in this [c]ourt. The costs associated with mediation shall be shared equally by the parties, unless otherwise reallocated by the mediator.”

Unconstitutional restriction

On appeal, the husband argued that the mediation order violated his Article 11 rights. The constitutional provision guarantees each person the right “to obtain right and justice freely, and without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws.”

Meade found instructive Bower v. Bournay-Bower, the 2014 decision in which the SJC vacated an order of the Probate Court that appointed a parent coordinator over the objection of one parent, and granted that coordinator binding authority to resolve conflicts between the parents.

“While recognizing that courts have the inherent power to appoint dispute resolution officials in appropriate circumstances, the Supreme Judicial Court [in Bower] stressed that it is the judge — and, absent agreement of the parties, only the judge — who shall make the final, binding decision in each case,” Meade wrote.

Similar to Bower, Geoffrion in Ventrice had “delegated her decision-making authority to a court-appointed official, doing so over the objection of at least one party,” Meade noted.

The court concluded that the mandatory mediation order unconstitutionally burdened the parties by preventing them from bringing a subsequent action in Probate Court until they paid the costs of mediation.

“[T]his precondition could discourage or even prevent one of the parties from seeking to modify the divorce judgment if a material change in circumstances or the best interests of the parties’ four children so required,” Meade said.

And because the Probate Court has exclusive jurisdiction, Meade noted, the parties had no alternative forum in which to pursue such a claim.

“In this light, we conclude that the amended judgment does precisely what art. 11 of the Declaration of Rights forbids, i.e., it chills the Ventrices’ right to freely petition the courts,” Meade wrote.

In addition to vacating the mandatory mediation order, the Appeals Court overturned the parties’ custody order on the basis that the record did not show that the lower court properly weighed the factors concerning the best interests of the children.

The case is Ventrice v. Ventrice, Lawyers Weekly No. 11-026-15

This article was written by Pat Murphy and is from Massachusetts Lawyers Weekly, a sister publication of Maryland Family Law Update.

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