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The Massachusetts Commission on Judicial Conduct publishes an annual report on the complaints they receive. The 2022 Annual Report (released in 2023) gives us some insight into what causes people to be dissatisfied with the court system. Of the complaints that were docketed, 1/3 of them were against the Family and Probate Court. The most common complaints were that the judge showed an inappropriate demeanor (included in 2/3 of the complaints) or that the litigant was denied a full opportunity to be heard (in almost half of the complaints). In addition, almost 30% of complaints alleged bias (including gender, race, or bias against self-represented litigants).
This may seem like just sour grapes, with many of the complainants likely having been on the losing end of their court case. In a family court case, though, many participants must still interact with the dissatisfied party. Divorcing and unmarried parents potentially have a lifelong relationship with the other parent, and if they feel slighted by the process that decided parenting time or child support, then that conflict will continue outside of the court.
That is why we often tell clients and potential clients that court is there if needed, but it should be considered a last resort when you are experiencing family conflict because there are other proven out-of-court methods for resolving many conflicts without the need for court (or minimal court involvement). Mediation and Collaborative Law are both processes that focus on reducing conflict for families and trying to create long-term solutions with buy-in from all involved. In this article, I want to specifically focus on how we can address the most complaints people have about court using the core principles of Collaborative Law. The core principles of Collaborative Law are:
- A Non-Adversarial Process
- Uses Interest-Based Negotiation
- Focuses on Identifying Goals and Seeks Solutions that are Mutually Advantageous
- Active Client Participation in Joint Problem Solving
- Hiring Neutral Experts & Working as a Team
- Transparency of Information & Sharing all Relevant Information
- Structured Decision-Making Process
- Disqualification Clause: Focused Representation as Settlement Counsel Only
Solution: Choose a process that respects your inherent dignity by retaining/returning to you the power of deciding.
If someone accuses the judge of having an inappropriate demeanor, they're really saying that they didn't feel that the judge respected the seriousness of these issues or the inherent dignity of the person in front of them. It's understandable that one would want to feel fully respected by someone who is deciding some of the most important questions in their life (how often you can see your children, how much money you will have, etc.). While many judges strive to show respect and dignity to the people in front of them, the court cannot give each case the attention that they deserve because of a lack of funding, lack of staffing, and a lack of time. The process of having someone else decide important life decisions for you is inherently disempowering. Especially when that person is a stranger.
Even a judge who cares deeply about the people in front of them is being asked to substitute their own judgment for that of the parties. Collaborative Law resolves this dichotomy by empowering the clients to make decisions for themselves through a structured non-adversarial process designed to make sure they are fully informed about those decisions and have a chance to consider the best options available to them. The collaborative coach helps the participants have a respectful discussion and even difficult conversations can be had in a safe and dignified way. The collaborative lawyers help prepare their clients to advocate in a cooperate rather than adversarial manner. Through this guidance and preparation, the participants in a collaborative negotiation control the tone and demeanor of their experience.
The 2nd Most Common Complaint: Denial of a Full Opportunity to be Heard
Solution: Choose a process that doesn't limit the topics, information, or time.
The most important decisions in someone's life should be made in the amount of time they decide it takes, not the amount of time a court has to give them. The Collaborative Law process takes as much or as little time to make decisions as is needed by everyone involved. The clients won't be rushed by a court schedule, or have to wait for the next available court date, and all the decisions are made by them after being fully informed of their options. This can be more time consuming than a court process, but can be more efficient long term if it prevents future trips to court for appeals or modifications when a party is dissatisfied with the outcome or the process of obtaining that outcome.
In addition to time limitations, the court must enforce rules of evidence. Information is only admissible if it fits within those rules and the hearing constraints of the legal process. It's no wonder people don't feel fully heard, because the system is specifically designed to limit what can be heard. The Collaborative Law process doesn't limit the discussion to just the legal problem, or limit itself to just the legally admissible evidence, but instead starts with a commitment to the transparency of information and sharing of all relevant information.
The Collaborative Law process can address the overlapping issues with communication, making legal decisions, making financial decisions, and making parenting decisions. Collaborative Law encourages the use of experts in each area. Is your lawyer also a therapist, child development expert, financial expert? Usually we're not and the Collaborative Law process addresses this by encouraging the use of a team of professionals necessary to give each case the proper attention and expertise needed.
These three principles combined (controlling the timeline, the flow of information, and the professionals involved) make it considerably more likely that a participant will feel fully heard through the Collaborative Law process.
The 3rd Most Common Complaint: Bias
Solution: Choose a process that is designed to respond to the diversity of individuals and their issues.
The court make-up is evolving, but the judges and staff still do not reflect the diversity of the population they serve. This is also true of the professional pool of people that provide dispute resolution services. Diversity amongst our professions is an issue that continues to need more work. However, the power imbalance in the court discourages parties from raising concerns about bias during their case. In contrast, the Collaborative Law process encourages it.
The professionals are hired by you, so if you think they're biased you can move on to other professionals or raise the issue and collaborative coaches have been trained to address these types of issues with the collaborative team. Of course this doesn't always guarantee an individual professional will agree they have a bias, but the team approach helps these types of issues get addressed and the impact of any bias is minimized because ultimately the parties are still deciding any outcome.
In addition, one particular type of bias that often concerns clients is the inherent disconnect between the financial motivations of the professionals and the clients; in simpler terms the more a lawyer fights or drags out the fight, the more money they could make. The Collaborative Law process directly addresses this issue in two ways. First, the disqualification clause of the Collaborative Law Process Agreement prohibits collaborative lawyers from participating in litigation, which means that they are focusing their representation only on settlement. Second, the use of neutral experts as often as possible reduces the work of the lawyers. While there is often some additional time necessary to coordinate between the team, having each team member focus on their expertise is ultimately more efficient for the clients and reduces overall cost.
To learn more about Collaborative Law visit Skylarklaw.com.
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