The cultural mediation I refer to in this article is clan mediation. Clan mediation within the Hmong community is the negotiation process that Hmong married individuals undergo along with both the husband and wife’s respective clans when seeking a cultural divorce.
In a previous article in the State Bar Family Law Blog in May 2021, I addressed what clan mediation is, and why it is important to the parties, their respective clans, and the attorney.
This article generally outlines what the mediation process may look like when it involves clan mediation.
I have applied a similar process – steps are explained below – to my practice, and so far, it has been positive. But it is a work in progress, and has only been applied to clan mediation within the Hmong community. Your situation may be different and may require a different approach.
The steps to using clan mediation in a mediated divorce are:
1) Involve the Clans Early
The first step to obtaining a mediated divorce using clan mediation is to involve the clan. This should be done early, because if the clans disagree to a divorce, there will not be clan mediation.
How I have met this essential step is by having the parties bring their respective clan leader or the head of their family to the first meeting.
During this meeting, I explain how I plan to incorporate clan mediation into my mediation process. If the clan leaders agree that the parties should proceed with their divorce using my mediation process, I next encourage them to schedule clan mediation to negotiate the divorce.
2) Attend Clan Mediation
The second step is to attend clan mediation. It is not uncommon for each clan leader to bring their own advisors, so there may be more people than expected.
Before negotiation starts, the attorney should introduce themselves, explain the legal process to obtaining a divorce, and an attorney’s role in clan mediation. Explaining the attorney’s role is important, because the Hmong people have a difficult time trusting anyone they consider an “outsider,” especially if the outsider is an authority figure. Your disclosure will help calm everyone and hopefully make the process easier.
Let the clan leaders drive the negotiation. Chances are, this is not the clan leader’s first clan mediation, so let them lead the discussion. But be prepared to bring up important issues that may have been missed. For example, legal custody, placement schedule, assets, debts, etc.
3) Draft Legal Documents
The third step is to draft the necessary documents for a legal divorce. Use what the parties have agreed to in clan mediation and draft the divorce documents.
4) Review and Signature
The fourth step is to meet with the parties to review and sign the divorce documents. It would also be beneficial to give parties an overview of the legal divorce process, the divorce waiting period, and explain what to expect at the final hearing.
5) File the Documents
The fifth and final step is to file the documents with the court. Keep in mind that some jurisdictions do not allow a third party to file paperwork. In this situation, the parties themselves will have to file the paperwork.
Clan leaders are usually the older male members of the clan and English may be a barrier. It would be beneficial to have a translator present.
Clan leaders are generally elected by the clan for their wisdom. It would be beneficial to show clan leaders a great deal of respect.
Clan mediations typically occur in one of the parties’ home. Be prepared for home visits.
Clan leaders or their advisors may have day jobs. Be prepared to meet on the weekends.
Conclusion: Saves Costs and Time
Mediation is a cost saving alternative, and if parties already must go through a cultural mediation process to obtain a divorce, such as clan mediation, attorneys can add value by incorporating that process into their mediation practice.
By doing so, the attorney removes the need to renegotiate the issues that were already agreed to in the clan mediation session, saving time and money for the clients. A potential process to use when incorporating clan mediation into an attorney’s mediation practice is to involve the clans, attend clan mediation, draft documents, gather signatures, and file legal paperwork.
This article was originally published on the State Bar of Wisconsin’s Dispute Resolution Blog. Visit the State Bar sections or the Dispute Resolution Section webpage to learn more about the benefits of section membership.