Bar News - November 19, 2014
New Family Law Docket to Push Advanced ADR
By: Kristen Senz
Court Borrows from Collaborative Law to Address Complex Cases
Characteristics of a
Complex NH Family Law Case
40% no evidence of a mediation attempt
30% domestic violence protective order
40% both parties represented
73% involve children
40% at least one party owns a business
Based on a recent Circuit Court analysis of about 120 divorce and parenting cases from 2012 and 2013 that took longer than two years to reach disposition.
With an emphasis on shifting judicial resources to provide intensive alternative dispute resolution services in the most complicated family law matters, the NH Circuit Court Family Division early next year will begin diverting cases to a special docket based in Dover and presided over by Judge Robert Foley.
The court plans to apply customized ADR methods – at no expense to the parties during the early stages of the program – and place the cases under the purview of a single, experienced judge, in an effort to resolve these long-lasting disputes more efficiently.
“We looked at how successful we feel our mediation program in our family division is, and we wanted to take that success and build on it,” said Molly Brown, ADR coordinator for the NH Judicial Branch. “We’re hoping that we’re going to be able to offer very specialized and individualized ADR to these parties and hopefully get these cases settled before they even have to go before Judge Foley.”
In 40 percent of recent family division cases that remained open for more than two years, ADR was never attempted, according to a recent analysis by the court. Many of the cases involved business assets and child custody, and there was a domestic violence protective order in about 30 percent of the cases.
Cases on the new docket that have some likelihood of settlement will have access to mediation, neutral case evaluation and a co-mediation model that integrates Collaborative Law concepts.
The Collaborative Law process typically occurs outside the court system and hinges on a disqualifying rule that prohibits collaborative law attorneys from representing parties in court if negotiations break down and litigation is required. Using a co-mediation model that involves a mental health professional and potentially other mediators with specific expertise, the court plans to integrate the principles of collaborative law into its complex family law docket program as a way to keep the settlement process within the courthouse walls.
“I think once a case comes to the court, we have an obligation to help them move forward toward a resolution,” said Gina Belmont, senior Circuit Court administrator. “How can we develop our own brand of a collaborative law process within our own system? Is there a way for us to pull the right resources around for those families?”
Historically, the court has operated under a philosophy of “Do the most for the most.” That means deploying resources with the goal of benefiting the highest number of cases, Belmont said, “but there are cases on the other end of the spectrum that also need more attention.”
Giving more attention to the complicated cases is expected to benefit parties across the family division. “By moving complex, and therefore potentially time-consuming, cases onto a separate docket, we hope to free up resources on our Family Division docket,” Circuit Court Deputy Administrative Judge David King said, “ensuring that all family cases receive the time and attention necessary to meet the needs of the parties.”
The Circuit Court has hired a second staff attorney, Rebeka Fortess, a law clerk since 2007, whose primary assignment will be legal research for cases on the complex family law docket. The court also plans to contract with four private-practice mediators for part-time positions, which each require a commitment to accept at least two new cases per month, and two neutral case evaluators. The court is accepting applications for the contract positions until Nov. 21.
Resources from the New Hampshire Mediation and Arbitration Fund will be redirected to pay the contract mediators – Belmont said the court hopes to eventually have parties pay the mediators directly – and provide other ADR services for parties in complex cases. King said two additional Circuit Court locations would receive additional resources for advanced ADR.
Case Referral and Criteria
Unlike with the court’s still relatively new complex trust docket, attorneys won’t be able to refer cases to the complex family law docket; only judges can refer cases, and Circuit Court Administrative Judge Edwin Kelly will make the final decisions on which cases are added.
“I think part of what we wanted to do was make sure that we’re able to keep all our resources focused on the cases themselves, and we worried that if the parties and attorneys were able to refer cases themselves, then we would be spending a lot of time deciding on which cases should be on the docket,” said Brown, the ADR coordinator.
There are no set criteria for determining whether a case belongs on the Family Division Complex Case Docket, and reopened cases may be considered. According to the court, cases appropriate for the new docket may involve one or more of the following factors:
- Novel legal issues. Do the issues raised require multiple layers of interpretation? Do legal instruments at issue include novel, ambiguous, or complicated provisions? Is the law unclear, complicated, or is there a choice of law controversy? Is there a high likelihood of a unique or controversial appellate issue?
- Complexity of assets. Does the case involve contested division of complex assets, including businesses and intangible assets, or multiple significant assets with disputed values?
- Challenging parties. Does the case involve high-conflict parents, potentially including charges of undue influence or alienation of the child? Is domestic violence an issue, either between the parties or between one or both parties and the children? Are substance abuse or mental health issues interfering with a party’s management of his or her case? Does the case concern a serial litigant or one who uses the system to bully his or her adversary? Is the party an attorney, with or without other representation?
- Projected length of trial. Do the parties objectively, reasonably project a multi-day trial as opposed to only a few hours?
- Urgency of adjudication. Is there a critical need for fast resolution?
- Efficiency. Can the case be more efficiently resolved in a specialized docket?
Times to Disposition
A recent analysis of family law cases that remained open for two years or more showed many had common factors, including complicated business assets, custody issues and “challenging parties.” Belmont acknowledged that “Some cases take that long because they take that long, and that’s how long they have to take,” but court officials believe some of these complex matters could reach resolution much sooner, given more court resources.
Of the 7,574 parenting and divorce cases disposed in 2013, 86 percent reached disposition (judge signed final divorce decree, final parenting plan, etc.) within one year of the petition being filed. Three percent of cases took more than two years to reach disposition.
The court analyzed about 120 cases from 2012 and 2013 that took longer than two years to reach disposition. In about 40 percent of those cases, there was no evidence of mediation having been attempted.
“Although some cases may legitimately not be well-suited for that particular ADR format, we were surprised to find this percentage to have been so high,” Jeannette Bilodeau, court services data specialist, wrote in a summary of the findings. “Of those ‘no mediation’ cases, only about 30 percent had a domestic violence protective order between the parties. Some cases seem to have gotten around the mediation expectation, and we need to be better about enforcing the attempt.”
About 40 percent of the longest-lasting cases involved two parties who were represented throughout the life of the case, and 73 percent involved children, which is higher than average (generally, about half of divorce cases involve children). About 40 percent of the cases involved at least one party who was self-employed or owned a business, and the business interest was an area of conflict in the majority of those cases.
Case Volume and Venue
Using the complex trust docket as a guide, Belmont and Brown said they anticipate that about 25 cases could be on the complex family law docket at a time. However, the emphasis on ADR could result in a higher volume of cases being diverted.
Initially, complex cases from the 7th Circuit will be targeted for the new docket. Under some unusual circumstances, Judge Foley may travel to other circuits to hear cases, Belmont said, “but that would be an exception, not the norm.” The initial phase of the program is expected to last about a year, at the end of which the court will reassess and decide whether to expand, she said.
Confirmed to the Circuit Court bench in December 2013, Foley, a marital master since 2006, has more than 35 years of legal experience and is a proponent of ADR. Although pleadings in cases on the complex family law docket will be filed at the downtown Dover courthouse, Foley will conduct hearings at the Strafford County building on County Farm Road in Dover, which is well-equipped to accommodate multi-party litigation and mediation.
Cases will remain on the complex family law docket until the resolution of all complex legal issues. The administrative judge of the Circuit Court may then issue an order and reassign the case to the court of origin.
The court has created a list of frequently asked questions and answers about the family law complex case docket.