MORE PREDICTABLE and less formal processes in court locations that are closer to litigants are among the innovations in the works for the statewide expansion of the Family Division.

An implementation committee, created as part of the legislation that gave long-sought permanence to the Family Division and will eventually reduce the superior court to 22 judges, is due to report on Dec. 1. The development of the statewide Family Division is expected to be accomplished within existing resources and facilities as much as possible. The eventual savings from fewer superior court judges will help offset the additional funding necessary for the expanded services.

Family Division Administrative Judge Edwin W. Kelly, a member of the committee, said the group's report will provide as much detail as possible for the ambitious task of structuring a new approach to a caseload that includes divorce, unmarried custody, abuse & neglect, juvenile delinquency, guardianships and other matters previously handled by the superior, district or probate courts.

In an Oct. 22 interview, Kelly provided some insight on the committee's direction and explained how it will differ from the eight-year-old pilot version of the Family Division now operating in Grafton and Rockingham counties. Kelly said the legacy of the family division pilot project was that it did succeed in reducing the adversarial nature of cases, and "it did a terrific job of connecting to the community and to service providers." However, it did not go far enough in emphasizing mediation in resolving disputes.

The legislature's charge to the committee calls for an implementation plan starting July 1, 2005, but Kelly said the committee's report will likely establish a multi-year implementation plan, possibly lasting three or four years. "We want to do it slowly enough to give people time to adapt to the system and to obtain the resources we need." He said the group is looking at 29 locations throughout the state, using existing court facilities wherever possible.

Administrative Judge Edwin Kelly, pictured on a non-court day at the Plymouth District Court, said the new statewide Family Division will emphasize less formal means of resolving domestic relations disputes.

Kelly was unable to provide specifics on two sensitive questions -exactly where those sites will be and how much the plan will cost. Decisions remain to be made on those issues, he said.

The new Family Division will de-emphasize on litigation as the main path for resolving issues, Kelly said. From the very beginning, litigants, whether they are self-represented or not, will be presented with less formal conflict resolution venues that will encourage mediation and prompt resolution of disputes.

"Gone will be the days when a lawyer tells a divorce client, 'We'll file the papers and let you know when we have a trial date,'" said Kelly. Instead, there will be a more predictable schedule of activity on each case, involving the litigants earlier in addressing important issues.

For example, the Family Division's designers are looking at creating a process to deal directly and immediately with child support issues. This process will be separate from the main divorce and child custody dispute resolution process, and will be administrative in nature. In some cases, this may result in more prompt, temporary child support agreements, or permanent ones in those cases where the child support decisions are not dependent on other elements of the divorce, such as distribution of property.

"If there are children involved, we will work on child support first, then take cases directly to mediation, and then- if all else fails- go to trial," Kelly said.

In general, processing will not be oriented toward diverting cases from a mainstream litigation-model, but emphasizing mediation as the preferred route for all cases. "Our goal is to change the focus to mediation," said Kelly, acknowledging that recent legislation that attempted to mandate mediation in the early stages of divorce actions has not greatly increased the number of cases resolved through mediation.

The function of case managers, paraprofessionals now used in the pilot counties of Rockingham and Grafton to assist litigants in understanding court procedures as they prepare their cases, will change. Litigants will be assigned to meet case managers earlier in the process and case managers will play a greater role in helping litigants identify resources to help them restructure their lives as well as navigate a new path that relies more on administrative steps rather than the calendar of hearings before a judge or master with long intervals of inactivity in between.

Kelly hopes that these steps will remove some cases almost entirely from judicial calendars. But that won't mean less work for lawyers and judges, he maintains. "As we remove cases from the adversarial track, that means that on a given day, the judge is going to go in to court with a case list of not 20 cases, but maybe eight cases -but those eight cases are going to get the time they really need," he said.

Kelly said he expects apprehension and concern from family law attorneys about the changes underway as divorce cases move from the superior court to the family division, but he said that the use of more informal processes will make life better for both litigants and their lawyers. "These improvements can help move cases along so there is less delay," he explained. "Lawyers will be able to give their clients clearer guidance about what is going to be happening." He does acknowledge that the nature of representation in a more "user-friendly" system may change, and that lawyers will have to adapt how they provide legal services in such an environment.

Kelly, echoing sentiments expressed by a Supreme Court task force on pro se litigants last year, said the trend toward self-representation is too prevalent to ignore and must be accommodated. The family division is being designed to better accommodate the majority of litigants who do file divorce without an attorney. "The [pro se phenomenon] is always on our minds," he said. "In large part if we can handle these cases in a less adversarial environment, it will be a more appropriate setting for pro se litigants than the more formal environment of the courtroom."

The assignment of judges and masters will change in the new family division, with masters and judges being assigned to cases almost interchangeably. Masters will not be able to handle cases involving juvenile matters or domestic violence issues. Judges-drawn from either the district court or probate courts-will be certified to hear cases in the family division and, superior court judges will gradually be phased out from hearing marital matters. The court will adhere to a "one-family, one-judge" model, assigning all matters involving the family to the same judge or master.

Kelly said this will make the master position more desirable, providing these judicial officers some relief from an exclusive diet of marital matters. "It can be emotionally draining to hear divorces non-stop," Kelly said.

On the issue of financing this new approach, Kelly said the family division is looking at conserving judicial resources where possible. "We are looking at things in a new way, trying to find less formal processes to resolve issues whenever it is appropriate.

For example, disputes over breakdowns in child-custody arrangements -the Friday afternoon scenario where one parent claims circumstances prevent him/her from fulfilling the mandated transfer to the other parent-should be handled differently. "The response of the system today is that we need to have a hearing before a judge or master. How long will that take to happen? Does that make any sense?" New mechanisms or venues need to be developed to address such ongoing issues without necessarily using judge time.

"The old response to caseload pressures was to say we need more judges and staff. The new response is to ask, 'Are we processing things as efficiently as we can?' We have to take an honest look at how we do things."

"There's a concomitant response that needs to come from the bar to look at how they do business," Kelly added.

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