Question: My wife and I made the mistake of trying to mediate our domestic dispute and, in the process, wasted almost a year and a lot of money. In retrospect, it seems as if (1) the court wanted us to go to mediation in an effort to get us "out of the courtís hair" and (2) without time lines to get things done, our lawyers seemed to drag their feet. Having read a good bit about mediation, and, having now been a "victim" of that process, I feel that the court needs to be more involved. My question: Why donít the judges take the time to move what could be a productive process along?
Answer: Believe it or not, we found one judge who does Ė and does it successfully: The Honorable Mary L. Davidson, Family Court Judge of the Hennepin County Minnesota District Court. Designed around the principle that it is the duty of matrimonial lawyers and the court to enable the parties to negotiate a settlement which meets their needs and objectives, "Divorce with Dignity" has had significant success over the past six years in Minneapolis. Hereís how it works:
The first step is to help the parties learn their options so they can determine what they want. To this end, experts tell them the value of their assets and help them fashion the appropriate parenting plan for their children; lawyers explain the law of support and property division; and judges describe the probable outcome of litigation. With this input, the parties can understand their options and make realistic choices about what they want and need.
Soon after the case is filed, the judge schedules a meeting with the parties and their attorneys and explains the rules of the program. Then the parties meet separately with their lawyers to decide whether they will use the program. If they "opt in," they meet as a group to narrow the issues and perhaps negotiate a temporary order and a scheduling order to keep the case on track. Then they meet with the judge or the judgeís clerk to report on their progress. They may draft a memo or proposed order confirming their agreements or schedule another conference with or without the court. Throughout this process, there are time deadlines against which they work.
The judge and court staff manage the case to make sure it moves through the system at the appropriate speed. If there is no activity for 60 days, the judge asks the lawyers for a status report. If there is no report, the clerk notifies the lawyers that the case will be closed unless there is a response within 30 days. Once the response is received, the court may schedule a meeting or phone conference to get the case back on track. Otherwise, the case is placed on the docket for trial. Because one judge is involved in this process, judicial economy is served by not having three or four judges familiarizing themselves with the case.
Some of the rules of the Divorce With Dignity program are: First and foremost, the parties make a commitment to try to settle their differences. No motions are allowed unless pre-approved by the Court. There is informal discovery with the parties affirming under oath that they have provided full disclosure. The lawyers commit to stay focused on the issues and not to fight with each other. The parties use an independent neutral expert (or experts) if necessary. The Court decides the issues of attorneys fees. Conference calls with the Court are used to resolve sticking points Ė For example, if all issues are resolved except for spousal support, the parties can submit that issue to the Court for determination within the context of the rest of their agreement.
Using this system, Judge Davidsonís case disposition rate is better than the traditional approach. Based on evaluations of the program by litigants, 67 percent felt the program influenced the decisions made in the case, and only 22 percent were dissatisfied with the process. Lawyers gave the program high marks: 89 percent of those who participated liked the program, and 70 percent felt DWD was an improvement over the traditional litigation model.
From the Judge Davidsonís perspective, she can handle more cases with less stress since she is the person who controls her calendar. This allows her to be flexible enough to be available to the lawyers if problems arise. And as a result of this hybrid form of alternative dispute resolution, Judge Davidson she has seen lawyers and the parties come up with more creative solutions to their problems than she could have been able to effectuate under the law.
While the program does not work for everyone (i.e., those who are motivated by anger and seek to punish their spouses), it is an alternative that gives the parties a time-limited way in which to try to resolve their issues without lingering litigation. In this day of increasing caseloads and decreasing budgets, we recommend that this time-tested approach be considered as an alternative by Courts throughout the country.
Judge Davidson can be reached at the Hennepin County District Court, 12-C, Government Center, 300 South Sixth Street, Minneapolis, MN 55487.
Jan Collins is an award-winning writer and editor. Jan Warner is a matrimonial, elder, and tax attorney. Both are based in Columbia, South Carolina.
Please send your questions by e-mail your questions to email@example.com or by mail to P.O.Box 11704, Columbia, S.C. 29211.