hearing can cause irreparable harm to the family."
We know that contentious and
protracted family court litigation damages children and families.
Numerous research studies confirm this. Rule 114.03 requires
attorneys to inform their clients about ADR and Minn. Stat. ¤
518.157 requires the court to educate parties about the impact
of litigation upon families as soon as possible after the case
is filed. Nevertheless, we continue to rely on litigation as
the primary mechanism for handling marriage dissolutions. To
improve the outcome for families, why not divert spouses to alternative
dispute resolution as soon as the case is filed?
There are two main reasons we should divert cases before the
temporary hearing. First, in the Family Court system, the temporary
hearing is the point where the dissolution of marriage first
becomes highly adversarial and expensive. The adversarial hearing
can cause irreparable harm to the family. Parents often cannot
cooperate with one another after proceeding with highly
inflammatory affidavits against one another. How can we,
as members of the bench and bar, expect litigants to cooperate
for the sake of their children after exchanging such hurtful
and contentious allegations? Although countless spouses at temporary
hearings say that they wish to "get off the litigation track,"
frequently their efforts at court-ordered mediation fail. Just
as parties invest a great deal of money in legal fees, they also
invest themselves in the adversarial process. Given the extent
of their investment, divorcing parents find it difficult to admit,
despite evidence that their family is falling apart, that a grave
mistake has been made. By informing parents of ADR prior to the
temporary hearing, we can encourage cooperation between the parents
before the opportunity is lost.
Second, in the Family Court System, temporary decisions carry
a great deal of weight throughout the entire case and can impose
a major burden on the final outcome. Yet, despite the high stakes,
the Court decides all issues after a half-hour motion hearing
with evidence based solely upon affidavits that are at times
poorly drafted. Whenever feasible, all important decisions can
and should be made by the family who will have to live with them.
Just as we have learned in business to customize service to the
market, we as proponents of ADR must also learn to speak specifically
to the individual divorcing couple to maximize the benefit of
the time we spend educating them about their options. Individual
conferences between the couple and the court soon after the case
is assigned are a first step in this direction.
Parties appearing in family court vary greatly in their knowledge
of the process and in their level of cooperation. Having an individual
conference with each couple allows the judicial officer to present
specific information about mediation to them at their level,
greatly increasing the likelihood that they will understand the
issues and be able to make a well-informed decision. Parties
who are already highly educated in the process are bored or insulted
by a "one size fits all" presentation, such as is commonly
used in these programs. Having the actual judicial officer assigned
to the case providing this information is a powerful tool. The
judge or referee is in the best position to explain the potential
pitfalls of family court litigation, usually unforeseen by the
Judges and referees would find this model extremely rewarding.
Most if not all judicial officers enjoy resolving disputes in
a constructive manner. This type of diversion program saves valuable
court time, and court time can then be used for those cases that
truly need to be litigated. Hearings can be scheduled sooner,
and moved along more quickly. Finally, studies have shown that
mediated cases have a much lower chance of returning for a post-decree
hearing, which is a long-term benefit to the court system.
It is critical to inform parties about mediation at the earliest
point, preferably at an early conference with the court. (Cases
involving domestic violence should always be excluded from these
types of joint meetings.) Many courts refer parties to their
own Court Services mediators, but those agencies usually provide
mediation on custody issues only.
In most cases, the parties are also very concerned about the
financial impact of their custodial decisions. The risk in the
current system is that the divorcing couple will fail to settle
custody at all because of their financial concerns. Then we face
the highly unfortunate situation of parties litigating custody
when the true issue may be financial. Court Services departments
should consider expanding their services to include mediation
of financial issues and, if they do not, the parties should be
encouraged to use private mediators so all their issues can be
resolved from the start.
The court should always inform the parties that the information
they share in mediation is confidential, even from the court,
and it will not have a negative impact on their case if they
refuse to mediate. The judge or referee will not be privy to
the parties' decision to mediate, and will only be informed once
there is a mutual decision to go forward with the mediation process.
After speaking with the judicial officer assigned to the case,
the parties should immediately meet with a highly qualified,
court-approved mediator who can answer any questions they may
have about this alternative to litigation. The parties would
have the option of hiring that particular mediator, or could
be referred elsewhere. When the parties choose mediation, the
end result is positive for all concerned -- the parties, the
mediator and the court -- a remarkable contrast to the experience
of litigation in Family Court.
SUSAN COCHRANE was appointed
to the Hennepin County bench as a referee of Family Court in
1995. She hears hundreds of cases each year, in all areas of
family law, including contested dissolution and custody matters,
domestic abuse, contempt and child support cases. She graduated
cum laude from William Mitchell College of Law in 1982.
AN INFORMED CHOICE
Divorcing parties in a contested case have a choice in this
important matter. Because the results of litigation can be disastrous,
the divorcing couple needs the opportunity to make an informed
decision before they proceed with litigation.
This is analogous to requiring a surgeon to inform his or her
patient of the unforeseen risks before a serious operation
so the patient can give informed consent. What if the doctor
knowingly failed to disclose a nonsurgical treatment that would
have provided the same, if not superior results? Both bench and
bar should consider these ethical questions in light of the known
harm to families from the adversarial process.
All too often, Family Court referees, judges, therapists, lawyers,
and family members have witnessed the unintended damage that
resulted from a contested divorce, especially in its the impact
upon the children. We do not need research to show us those unfortunate
results; we see them almost every day. The court is in a unique
position to provide an important public service to families.
If the court acts before the couple decides to dissolve their
marriage through litigation, the court can empower those same
parties to reap the benefits of cooperation by diverting them
to a program for alternative dispute resolution.
The Early Intervention Pilot Project
BEGINNING IN August 2000, Referee Cochrane started an "Early
Intervention Mediation Pilot Project" which was designed
to educate parties about mediation very early in the dissolution
of marriage process, in collaboration with private mediators.
The key components of the project are that the divorcing couple
meets with the referee, and then with a private mediator to help
them make an informed decision prior to any litigation. The primary
goal of the project is to reduce the number of temporary hearings,
and to afford the parties an opportunity to resolve their case
in a cooperative manner. Before this project, the referee would
not have seen any of these parties until the temporary hearing,
where they were in an adversarial posture after filing damaging
and contentious affidavits against one another.
The project has had remarkable success -- the number of temporary
hearings has been reduced by 98 percent. Referee Cochrane was
recently awarded the "Leading the Way" award for district
court for this project. It was found to be an innovative and
valuable public service, which has not only given divorcing couples
control over their own lives, but has also saved many hours of
court time, while costing the court nothing.
"Judges and referees
would find this model extremely rewarding."