In a legal divorce or paternity action, court-ordered mediation assists the parties to resolve issues related to custody and placement. Court-ordered mediation is usually done without the parties’ attorneys. Court-order mediation works because there is a third-party mediator who knows the legal process and helps parties negotiate the agreement in accordance with that process.
Mediation is not new to the Hmong community. In fact, it is expected that there is mediation before a divorce, although the process is more expansive than the custody and placement mediation frequently ordered in family law cases.
What is Clan Mediation?
Mediation in the Hmong community is a little different from court-ordered mediation. This process is generally known as “clan mediation.”
Some background: In the Hmong community, there are 18 family clans, each with a clan leader. Every member in one clan is considered related – therefore, marriages are between two different clans. As a result, there are usually two clans involved in clan mediation. Each clan speaks for their member. The clan is represented by the clan leader who would facilitate the clan mediation process.
The clan leaders are typically the oldest members of each clan, because they have the most life experience. Their job is to help their clan member negotiate the terms of the divorce and to ensure that a divorce is recognized within the Hmong community.
Once clan mediation is complete, the divorce will officially be recognized in the Hmong community. It is common that a written agreement is given to the parties after clan mediation.
However, there usually is no one with knowledge of the law present at a clan mediation, and clan negotiations may not cover all the items required by the legal system, such as requirements about health insurance coverage for minor children.
Cultural Marriage, Cultural Divorce
Clan mediation is a meeting to negotiate what to do when there is an issue that involves two or more family clans. The keyword is negotiation. The term ‘clan mediation,’ is used here to refer to a meeting between two parties and their clan leaders to negotiate a cultural divorce.
Think of clan mediation as the negotiation process in a legal divorce. Clan mediation usually occurs before a legal divorce or soon after the legal divorce has been filed.
In the Hmong community, it is a tradition that each family clan acknowledges a marriage before the two people are recognized as culturally married. Likewise, the clan must acknowledge the divorce before the two people are considered divorced.
Note that clan mediation is for cultural marriages. Most members are married culturally before they are married legally. If the members are married legally but not culturally, clan mediation will not work, because the family clans never recognized the marriage – therefore no divorce is necessary. Some members choose never to be legally married, so clan mediation may come up outside of a legal divorce case, such as in a paternity or property case. The clan leader’s job is to help their member negotiate the terms of the divorce, keep the peace between the two families once the divorce is final, and recognize the divorce once it is completed.
Clan Mediation is Important for Clan Members
Clan mediation is important for a couple of reasons. First, it is expected that when the parties married, they take on the burden of each other’s funeral expenses. A usual Hmong funeral costs $15,000 to $30,000. If the parties do not involve their clan in a divorce, the divorce will not be recognized, and the funeral expense of the other party may become an issue in the future.
Second, the member may not be able to move on if the clan is not involved in the divorce. Clan mediation is not a requirement of the legal system and it may not be on the member’s mind when they are getting a legal divorce. However, once they decide to remarry, they will need their clan to negotiate and recognize the new marriage and the clan may not help because the previous marriage was never properly terminated.
Clan Mediation is Important for Attorneys
As discussed above, clan mediation lacks a person who knows the legal process. While a written agreement is usually provided to the parties, it is usually not enough to be considered a legally binding agreement. I have not seen anything that stops an attorney from attending clan meditation. Usual topics covered during clan mediation are custody, placement, and asset division – important topics to address when negotiating a marital settlement agreement in a legal divorce.
Family law attorneys who attend a clan mediation can use that process to guide the parties through the legal requirements and to document these agreements – effectively completing the negotiation process. This is a win-win situation. It is a win for the parties because it costs less than having to attempt to renegotiate an agreement that has already been reached during clan mediation. It is a win for the attorneys because they do not have to duplicate what has already been done.
Though an agreement from court-ordered meditation sometimes changes, agreements from clan mediation rarely change. This is because the agreements were negotiated and supported by both parties and their family clan. The fact that these agreements rarely change is a good reason for an attorney to be present to document them.
Simply put, attorneys who document the agreements during clan mediation will have completed the negotiation process and, if they are prepared, finish the marital settlement agreement and get the required signatures.
The Hmong community has a difficult time trusting authority. As a representative of the court, you may be seen as an authority figure. You need to make it clear to everyone why you are there and what you plan to do with the information you gathered.
If one party is getting most of the assets, you should voice that marital assets are to be divided as equally as possible, otherwise the agreement may not stand in court.
It is respectful to not make eye contact, so, there may be no eye contact at all.
Divorce is a sensitive topic, and it may take some time to get the conversation started. Let the clan leaders guide the conversation.
It is beneficial to have someone who is fluent in Hmong with you, because the clan leaders may not understand English.
Conclusion: Keep Legal Requirements in Mind
If the parties agree to clan mediation, you, the attorney, should attend and guide the parties through the legal requirement because this will effectively eliminate the need for future negotiations.
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This article was originally published on the State Bar of Wisconsin’s Family Law Section Blog. Visit the State Bar sections or the Family Law Section web pages to learn more about the benefits of section membership.