Some judges have long recognized the need for what Frank Sander referred to as a “multi-door courthouse” where parties to a dispute can find multiple ways to resolve this dispute, not just litigation. In a concurring statement in the Cooper v. Keto case, Massachusetts Appeals Justice Brown indicated that “litigation should be the last option, not the first.” He also cited an article by a retired judge in the Boston Bar Journal complaining about whether attorneys were adequately addressing this issue:
“The ‘technical competence’ of litigation attorneys today is greater than ever, but attorneys ‘often do not think about whether it makes sense’.”
The good news is that many courts, especially family courts, are beginning to recognize this need and there are more and more pilot programs in place to offer families the opportunity to find alternative ways to resolve their conflict.
In Massachusetts, Hampshire County’s Probate and Family Court has a program called the Family Resolutions Specialty Court that offers families a different path. The FRSC is a voluntary option offered to families with custody or parenting disputes and is very similar to the model of the right of collaboration (with some notable differences). The family is provided with a mediator and lawyer for the child or children, and a judge is available to meet the parties in informal settlement conferences. For more details on the program, please visit the Mass.gov website and these two articles on the FRSC program:
Boston Bar Journal: The Specialized Court for Family Resolutions: A community-based problem-solving court for families in conflict in Hampshire County
IAALS Blog: Massachusetts Family Resolutions Specialty Food: A New Alternative
The IAALS also reported earlier this year on some key steps that the Conference of Chief Justice has taken to demonstrate its commitment to a less controversial family court:
IAALS Blog: The Chief Justice Conference Adopts Guidelines To Make Family Courts Work For The Families They Serve
The guidelines rely heavily on a report by the Family Justice Initiative, which found that not only was the family court system inefficient, but it may have prevented the parties from reaching indisputable settlements. The results included:
- “72 percent of the cases examined involved at least one self-represented party;
- Most of the cases are undisputed, but controversial and undisputed cases lasted roughly the same time regardless.
- Many current data systems do not provide judges, attorneys, mediators, and others with enough information to efficiently move cases through the system and help families find the solution they need. “
Improving case management systems, especially for uncontested matters, will obviously help families reduce stress and costs, and the courts can and should go further and encourage the use of mediation and collaborative solutions when possible. The principles for family justice reform focus on collective problem solving, triage, training, and improving access to information and data. The experts who are often needed in a divorce are people with psychological, financial or child-related expertise and not with legal expertise.
Family disputes should not be the sole responsibility of attorneys, and it is time to question whether attorneys should even be the goalkeepers of family disputes. Pamper me for a minute and in the spirit of John Lennon:
Imagine if a divorced spouse, someone who is usually in pain and under emotional distress, was first met in the courthouse by someone trained to examine their needs and resolve sensitive conflicts instead of an administrative clerk.
Imagine if the court’s website promoted mediation and described the benefits first.
Imagine if uncontested divorces could be finalized without a judge’s signature (like marriage certificates).
Imagine if every argument with children included the opportunity to involve a child development expert.
Imagine if any dispute with complicated financial issues included the opportunity to work with neutral financial experts.
Imagine if we thought of judgment as a place where people make peace rather than a place where they wage war.
Now you can say that I am a dreamer, but I am not the only one.
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