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Bar News - November 18, 2015


Trials in Chambers: An Innovative Approach to Complex Cases

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Judge Foley hopes to see the complex marital docket replicated on a regional basis and in terms of who can refer cases for placement on the docket.

The most important part of planning a wedding may also be the most important part of resolving a messy divorce: setting a date.

“As soon as you’ve got a trial date, you’ve got urgency, and I’m watching families respond to that urgency, most of them by settling,” says Circuit Court Judge Robert Foley, who as of Aug. 1 began presiding full-time over the state’s new complex marital docket. “I believe now that one of the first things I should do when people arrive at the complex docket is give them a trial date.”

This lesson goes against what Foley learned as a mediator in private practice, which was to try to resolve cases before they reached the trial stage. And in spite of his newfound appreciation for setitng the trial date, he still believes that divorce and parenting cases should be settled outside the courtroom, “even though I’m right in the middle of it.”

And Foley is, literally, right in the middle of it. He has developed a method for trying cases around a table in his chambers – no robe, no objections; just the two sides working toward a settlement. The sessions, during which Foley acts as both mediator and trier of fact, are recorded. The parties voluntarily agree to this process and arrangement in advance. “Some attorneys don’t like it, but you can’t have it both ways; I’m going to do both, or I’m not going to do mediation,” he explains.

He calls it “the IEP model,” because it’s similar to the way parents, teachers and other experts meet to determine the best educational path for a child. Foley approaches the parties in a marital case as a student, ready to learn.

“My job is to learn, your job is to teach,” he says during a recent interview in his chambers in the Strafford County court complex in Dover. “In its ultimate form, we can try a case at that table by talking and teaching, rather than testifying and fighting, and in the end, I would have enough information to decide the case, and I’ve tried that and I know I can do it.”

Throughout the process, he “shares ideas” with the parties. “You can think of it as a suggestion to settle the case or however you want, but this is how I’m leaning, and I can tell you I’m leaning in a direction honestly and candidly, and I’m not prejudging,” he says. “There are all sorts of variations on this process that I’m talking to attorneys about all the time.”

Two cases are scheduled to attempt this kind of “trial” in Foley’s chambers over the next few months. In other cases on Foley’s complex marital docket, a team of seven contract professionals specializing in alternative dispute resolution (ADR) are available at no charge to the parties to work with the parties toward settlement. The ADR services offered include mediation, co-mediation and neutral evaluation.

Since December 2014, 49 cases have been transferred to the complex marital docket. Of the cases that have resolved, two have settled using the court’s in-house ADR process, and five settled in private mediation. Ten cases have been decided following trial.

“I don’t think the ADR statistics are fair to the process,” says Foley, adding that there was at least one case in which the court’s ADR professionals helped parents move past a critical obstacle, before they settled in private mediation.

Because Foley can focus all his time on these complicated cases, he has some flexibility and can make himself available to parties, for telephone conferences, for example. This is helpful, given that he is in Dover, and the cases he’s hearing come from all over the state, forcing lawyers to do more travel than usual.

“We do a lot on the phone – status conferences, motions hearings occasionally. It’s not my favorite way of hearing a motion, but it saves the client a lot of money, it saves the lawyers time, and it’s another demonstration of accessibility,” Foley says.

He encourages lawyers to consider the roundtable ADR model and to call him to discuss an issue before filing a motion. But, he says, he recognizes the downside for attorneys who are trying to build a record for appeal. “It’s not for every case or every lawyer, but it is an option, and it’s less adversarial.”

Foley is driven to find the least destructive way for parents to end their marriage and continue co-parenting, minimizing harm to the children caught in the middle of disputes over high assets and longtime familial allegiances.

“If I had my way, I’d have a team of mental health professionals working with us and working with the families to resolve some of these family problems,” says Foley. “I think there ought to be a stable of mental health professionals, just like we’ve got ADR professionals.”

The court process wasn’t designed to facilitate the dissolution of marriages. The inventors of the adversarial system, Foley points out, never intended for a father to sit at one counsel table, fighting against a mother on the other side. “Women didn’t have rights and men didn’t have to fight with them,” Foley says. “The world changed, thank god, but the adversarial system didn’t.”

The complex marital docket is a pilot project of the NH Circuit Court, modeled after the complex trust docket, which handles complicated probate matters. For now, only judges can apply to have divorce and parenting cases transferred to Foley’s docket. But the judge would like to see that change, either by allowing court clerks or lawyers to recommend cases. Discussions about that, and about rolling out regional dockets for complex marital cases statewide, are ongoing, Foley said.

A native of Plymouth, Foley worked as an attorney in private practice for more than 30 years before becoming a marital master and eventually a judge – a role to which he admits he never aspired. Although the cases are difficult and highly emotional, he says, he feels that he is helping to work toward a solution that enables the Judicial Branch to achieve justice for families.

“The system is evolving,” says Foley. “The court wasn’t serving the needs, and so mediation evolved as private justice, and now we’re trying to bring it back. We should be solving cases for families, and this docket enables me to say, ‘I can give you ADR. I can give you a trial, and you don’t have to wait two years.’ I think what we’re trying to do is be that full-service judicial branch and regain that ground that we gave away.”

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