Minn. Stat. § 518.1751 adopted by the 1989 Minnesota legislature authorized the use of a visitation expeditor to resolve visitation disputes arising under visitation court orders. Even though the visitation expeditor process is 10 years old, it is still foreign to many family law practitioners and a preliminary survey of courts shows that the visitation expeditor procedure is used infrequently in some counties and never used in others. The following is a summary of the major provisions of the visitation expeditor statute and a pragmatic look at some problems with its use.
When Visitation Expeditor Can Be Used
Visitation expeditors resolve visitation disputes involving existing visitation orders that arise under Minn. Stat. §§ 518, 257 and 518A, either while the matter is pending, or after a final decree. The statutory definition of a visitation dispute includes: (1) anticipated denial of a future scheduled visit; (2) a custodial parent's claim that a non-custodial parent is not visiting; (3) a claim that a custodial parent is denying or interfering with visitation; and (4) any other dispute about court-ordered visitation.
Obtaining A Visitation Expeditor
Parties may stipulate to the appointment of a single expeditor or a pair of expeditors, naming the individuals to be appointed. Alternatively, a party may request court appointment of a visitation expeditor. Finally, while a matter is pending before it, the court, on its own motion, may appoint an expeditor. Without agreement, however, a party may not be required to submit a dispute to an expeditor if: (1) a party claims to be a victim of domestic abuse by the other party; (2) the court finds probable cause that a party or a child has been threatened or physically abused by the other party; or (3) the party is unable to pay the costs of an expeditor. Stipulations and requests for a visitation expeditor are submitted to the court for review.
Naming Visitation Expeditors
Parties may agree and name a visitation expeditor. Parties who do not initially agree to a named visitation expeditor are given a roster of visitation expeditors and are required to exchange names of three potential visitation expeditors by a specified date. If, after exchanging names, the parties still are unable to agree upon a visitation expeditor, the court may appoint either a single expeditor or a team of two.
To be listed as a visitation expeditor on the court's roster, a person must complete a minimum of 40 hours of family mediation training and be certified by the Supreme Court. In addition, to retain one's listing on the roster, a person must annually attend three hours of continuing education. The court may appoint an agreed-upon expeditor even though the person is neither trained nor certified.
Visitation Expeditor Appointment Orders
A written agreement naming a visitation expeditor will also identify the: (1) nature of the dispute; (2) responsibilities of the visitation expeditor, including whether the appointment is to resolve a specific issue only, or is ongoing; (3) term of appointment; and (4) agreed upon apportionment of fees and costs. When the parties submit a written agreement, no court appearance is necessary.
The court reviews all agreements and thereafter signs an order. The court order appointing a visitation expeditor: (1) identifies the individual appointed; (2) states the nature of the dispute; (3) establishes the responsibilities of the visitation expeditor (specific or ongoing); (4) sets the term of appointment; (5) apportions fees; and (6) notifies the parties that if they do not reach an agreement, the visitation expeditor is authorized to resolve the dispute and the decision is binding until vacated or modified by the court.
Role And Authority Of Visitation Expeditors
The role of the visitation expeditor is both similar to and different from the role of a custody-visitation mediator under Minn. Stat. § 518.619. A visitation expeditor may be used only after a visitation order is established, while a custody-visitation mediator may be used for an initial visitation order. A custody-visitation mediator is limited to assisting the parties in arriving at an agreement. On the other hand, visitation expeditors act as neutrals employing a mediation-arbitration process to resolve visitation disputes. A visitation expeditor may move from mediation to arbitration when the parties do not agree. In the arbitration mode, visitation expeditors are authorized to enforce, interpret and clarify existing orders, address circumstances not specifically noted in an existing order, and decide whether an existing order has been violated. Such arbitration decisions must be made within five days of the final conference and submission of all necessary information. If, however, circumstances beyond the visitation expeditor's control make it impossible to meet the five-day time line, the visitation expeditor may still proceed to decide the issue.
A visitation expeditor must meet with the parties, either separately or together, within five days of notice of appointment. The five-day meeting requirement also applies to a notice of a subsequent dispute. Where immediate resolution is required, the meeting may be by telephone conference or some other similar method. And, where a visitation expeditor makes a good-faith effort to confer with a party but the party chooses not to participate, the expeditor may decide the dispute without conferring with the non-participant.
When a visitation expeditor determines that visitation has been deprived, the expeditor may award compensatory visitation under Minn. Stat. § 518.175, subd. 6 and may recommend to the court that the noncomplying party pay attorney's fees, court costs, and post a bond. Decisions interpreting and clarifying a visitation order include determining a specific schedule where an order grants "reasonable visitation." Unless the parties agree, however, a visitation expeditor may not decide a dispute inconsistent with an existing visitation order. Agreements and decisions are reduced to writing and copies are provided to each party. If an agreement or decision is not complied with, the visitation expeditor has no additional authority to enforce it.
The court, in effect, supervises all appointed visitation expeditors. As noted, the court appoints the visitation expeditor, sets the terms of the appointment, apportions fees and determines the nature of the disputes to be submitted and whether the process is ongoing. A party may move the court to enforce an agreement or decision after visitation expeditor mediation or an arbitration decision. The court may enforce, modify, or vacate either an agreement of the parties or a decision of the expeditor.
Fee Apportionment
Before the court appoints a visitation expeditor, the parties receive notice that the expeditor's fees shall be apportioned among the parties. A party who cannot afford to pay the fees of a visitation expeditor may not be forced to submit a dispute to a visitation expeditor. If the other party agrees to pay the fees, however, the court still may order the dispute submitted. While the initial apportionment order divides the fees, after fees are incurred, by motion a party may request that fees be reapportioned. On such a motion, the court may consider the: (1) parties' resources; (2) nature of the dispute; and (3) bad faith of a party. The bad faith determination may be made based on information submitted by the visitation expeditor.
A pro se party seeking appointment of a visitation expeditor, where no previous court-ordered apportionment of fees is established, may be required by the court administrator to pay visitation expeditor fees in advance.
Mandatory Visitation Dispute Resolution
A judicial district may establish a mandatory visitation dispute program. A party who could not be required to refer a visitation dispute to a visitation expeditor because of domestic abuse or inability to pay visitation expeditor costs, however, is exempt from any mandatory program. Where a judicial district has established a mandatory program, parties may be required to submit visitation disputes to a visitation expeditor before a motion on the dispute will be heard by the court.
Confidentiality And Discovery
The visitation expeditor statute establishes a rather broad confidentiality rule. Unless otherwise discoverable, all statements made and documents produced during the visitation expeditor process are neither subject to discovery or disclosure, nor admissible for any purpose, including impeachment, in any other proceeding including trial. Sworn testimony, however, may be used in subsequent proceedings when otherwise admissible. Neither visitation expeditors, lawyers nor parties may be subpoenaed or called as witnesses concerning their participation in the visitation expeditor process.
Unless all parties and the visitation expeditor agree in writing, or disclosure is required by professional codes or law, all records, notes, or recollections of visitation expeditors are confidential and may not be disclosed to anyone including the parties. Even the court may not review such records or notes without a hearing and a determination that they should be reviewed in camera and thereafter may be released only when they show a violation of criminal law.
Underutilization
Hennepin County has mediation centers placed around the county, and most of the disputes submitted to them are post-decree. In Ramsey County, out of 498 visitation disputes that used alternative dispute resolutions, only five chose visitation expeditors. Other counties report using guardian ad litems instead of visitation expeditors for visitation issues. Many counties report few party requests for visitation expeditors, but some court referrals.
Why is the visitation expeditor process so underused? A pragmatic look at the process suggests some systemic problems.
- Mediation Versus Arbitration. Some counties steer parties to mediation instead of to the visitation expeditor process because of the potential for arbitration and strong possibility of court involvement in the expeditor process. Those counties believe that mediation alone is more likely to produce an agreement. They conclude that participants are more likely to comply with their own agreement than with an arbitrator's decision.
- Visitation Expeditor Fees. Counties surveyed report visitation expeditor fees ranging from $30 per hour to over $100 per hour. Because training and certification is expensive, few visitation expeditors are willing to charge at the low end. Parties who cannot afford visitation expeditors are not required to participate; those that can afford it may choose a less costly alternative.
- Court Review. Whether the dispute is resolved by agreement, or a visitation expeditor decides the dispute, one or both parties may decide not to comply and, instead, contest the decision, or seek a review of the agreement. One expeditor reports that 90% of his visitation expeditor decisions are challenged in court. Apparently, on court review, the matter is heard de novo based on the "best interest" standard, not the standard used by the visitation expeditor which is limited by the terms of the existing visitation order. This likelihood of further litigation may be a disincentive to choose the visitation expeditor process.
- Limited Decision-Making. Where the dispute arises out of the terms of the order itself, the visitation expeditor may not change it without agreement of the parties. Only clarification and interpretation are authorized. When a visitation order combines some specific visitation with other "reasonable visitation," developing specific schedules may be difficult because the visitation expeditor may not change the original specifics. To do so would be "inconsistent with an existing visitation order" and in violation of the statute. The limited authority of a visitation expeditor to change any part of an existing order may not only preclude a reasonable visitation expeditor's decision, but also deter use of the process.
- Enforcement. If a party fails to abide by a mediated agreement or an expeditor's decision, the non-offending party must still bring an enforcement motion before the court. A visitation expeditor does not have enforcement authority. Upon bringing such a motion, the court may modify, vacate, or enforce the agreement or decision. While the statute and notice accompanying the appointment of a visitation expeditor state that an expeditor's decision is binding until modified or vacated, there is little consequence to a noncomplying party, except for the possible reapportionment of costs.
- Another Third Party. Custody and visitation decisions usually involve the use of experts. In addition, guardian ad litems are frequently appointed. Mediation and parenting classes are required. By the time an existing visitation order is in dispute, parties may have become exhausted with the multiplicity of third party involvement, if not financially drained.
- Bad Faith Versus Confidentiality. The statute provides broad confidentiality protection prohibiting visitation expeditors, lawyers and parties from testifying about their participation in the visitation expeditor process. Further, unless all parties and the visitation expeditor agree in writing, or disclosure is required by professional codes or law, all records, notes, or recollections of visitation expeditors are confidential and may not be disclosed to anyone. Finally, even the court may not review such records or notes without a hearing and a determination that they should be reviewed in camera and thereafter may be released only when they show a violation of criminal law. However, contrary to these apparent confidentiality protections, when reapportioning fees, the court may consider whether a party acted in bad faith and may consider information from the expeditor in determining bad faith, which potentially negates confidentiality.
Conclusion
The visitation expeditor process is yet another option available to resolve visitation disputes. The process, however, is underutilized. Familiarity with the statute may increase the use of visitation expeditors. On the other hand, parties and practitioners may want to consider visitation expeditor costs, the limitation on visitation expeditor decision-making, court involvement, the disadvantages of arbitration, and questions concerning confidentiality before agreeing to or requesting a visitation expeditor.