Innovation in the Family Court: Real & Imagined

Some Judges have long recognized the need for what Frank Sander called the "multi-door courthouse," a place where people in a dispute can find multiple ways of resolving that dispute, not just litigation. In a concurring opinion in the Cooper v. Keto case, Massachusetts Appeals Justice Brown pointed out that "Litigation should be the last option, not the first."  He also quoted a retired Judge's article in the Boston Bar Journal lamenting whether lawyers were adequately addressing this issue:

"'technical competence' of lawyers to litigate is greater today than ever, but lawyers often 'fail to consider whether doing it is useful'."

The good news is that many courts, especially family courts, are starting to recognize this need, and there are a more and more pilot programs taking place that provide opportunities for families to find alternative ways to resolve their conflict. 

In Massachusetts, there is a program in the Hampshire County Probate and Family Court called the Family Resolutions Specialty Court which is offering families another way. The FRSC is a voluntary option presented to families with custody or parenting disputes, and is very similar to the collaborative law model (with some notable differences).   The family is provided a mediator and an attorney for the child or children, and a Judge is available to meet with the parties in informal settlement conferences.  More details about the program are available on the Mass.gov site and in these two articles reviewing the FRSC program:

Boston Bar Journal: The Family Resolutions Specialty Court: A Community-Based Problem-Solving Court For Families in Conflict in Hampshire County

IAALS Blog: Massachusetts Family Resolutions Specialty Court: A New Alternative

The IAALS also reported earlier this year on some important steps taken by the Conference of Chief Justices to show their commitment to a less adversarial family court:

IAALS Blog: The Conference of Chief Justices Adopts Guidelines to Make Family Courts Work for the Families They Serve

The Guidelines rely heavily on a report from the Family Justice Initiative which showed that the family court system was not only inefficient but possibly discouraged parties from reaching uncontested settlements.  The findings included:

• "72 percent of cases reviewed involved at least one self-represented party;
• Most cases are uncontested, but contested and uncontested cases took about the same amount of time regardless;
• Many current data systems do not provide judges, lawyers, mediators, and others with enough information to allow them to move cases through the system in an efficient way to help families get the resolution they need."

Improving case management systems, especially for uncontested matters, will obviously help families reduce stress and cost, and the courts can and should go even further, encouraging the use of mediation and collaborative solutions when possible.  The Principles for Family Justice Reform focus on joint problem-solving, triage, training and improving access to information and data.  The experts who are often needed in a divorce are people with mental health, financial, or child-related expertise, rather than legal expertise.

Family conflict should not be the purview of lawyers alone and it is time to question whether lawyers should even be the gatekeepers when family conflict arises. Indulge me for a minute and in the spirit of John Lennon:

Imagine, if a divorcing spouse, a person typically in pain and under emotional stress, was met at the courthouse first by someone trained in triaging their needs and in empathetic conflict resolution, instead of an administrative clerk;

Imagine, if the website for the court encouraged mediation first, and described the benefits;

Imagine, if uncontested divorces could be finalized without a Judge's signature (like marriage certificates);

Imagine, if every dispute involving children included the opportunity to involve an expert in child development;

Imagine, if every dispute involving complicated financial issues included the opportunity to work with neutral financial experts;

Imagine, if we started considering the court as a place people go to make peace instead of a place they go to make war.

Now you may say that I'm a dreamer, but I'm not the only one.