May/June 2001 

Early Diversion to ADR:
Improving Outcomes in Family Court

By Susan M. Cochrane

"The adversarial hearing can cause irreparable harm to the family."

We know that contentious and protracted family court litigation damages children and families. Numerous research studies confirm this. Rule 114.03 requires attorneys to inform their clients about ADR and Minn. Stat. ¤ 518.157 requires the court to educate parties about the impact of litigation upon families as soon as possible after the case is filed. Nevertheless, we continue to rely on litigation as the primary mechanism for handling marriage dissolutions. To improve the outcome for families, why not divert spouses to alternative dispute resolution as soon as the case is filed?

There are two main reasons we should divert cases before the temporary hearing. First, in the Family Court system, the temporary hearing is the point where the dissolution of marriage first becomes highly adversarial and expensive. The adversarial hearing can cause irreparable harm to the family. Parents often cannot cooperate with one another after proceeding with highly inflammatory affidavits against one another. How can we, as members of the bench and bar, expect litigants to cooperate for the sake of their children after exchanging such hurtful and contentious allegations? Although countless spouses at temporary hearings say that they wish to "get off the litigation track," frequently their efforts at court-ordered mediation fail. Just as parties invest a great deal of money in legal fees, they also invest themselves in the adversarial process. Given the extent of their investment, divorcing parents find it difficult to admit, despite evidence that their family is falling apart, that a grave mistake has been made. By informing parents of ADR prior to the temporary hearing, we can encourage cooperation between the parents before the opportunity is lost.

Second, in the Family Court System, temporary decisions carry a great deal of weight throughout the entire case and can impose a major burden on the final outcome. Yet, despite the high stakes, the Court decides all issues after a half-hour motion hearing with evidence based solely upon affidavits that are at times poorly drafted. Whenever feasible, all important decisions can and should be made by the family who will have to live with them.

Just as we have learned in business to customize service to the market, we as proponents of ADR must also learn to speak specifically to the individual divorcing couple to maximize the benefit of the time we spend educating them about their options. Individual conferences between the couple and the court soon after the case is assigned are a first step in this direction.

Parties appearing in family court vary greatly in their knowledge of the process and in their level of cooperation. Having an individual conference with each couple allows the judicial officer to present specific information about mediation to them at their level, greatly increasing the likelihood that they will understand the issues and be able to make a well-informed decision. Parties who are already highly educated in the process are bored or insulted by a "one size fits all" presentation, such as is commonly used in these programs. Having the actual judicial officer assigned to the case providing this information is a powerful tool. The judge or referee is in the best position to explain the potential pitfalls of family court litigation, usually unforeseen by the parties.

Judges and referees would find this model extremely rewarding. Most if not all judicial officers enjoy resolving disputes in a constructive manner. This type of diversion program saves valuable court time, and court time can then be used for those cases that truly need to be litigated. Hearings can be scheduled sooner, and moved along more quickly. Finally, studies have shown that mediated cases have a much lower chance of returning for a post-decree hearing, which is a long-term benefit to the court system.

It is critical to inform parties about mediation at the earliest point, preferably at an early conference with the court. (Cases involving domestic violence should always be excluded from these types of joint meetings.) Many courts refer parties to their own Court Services mediators, but those agencies usually provide mediation on custody issues only.

In most cases, the parties are also very concerned about the financial impact of their custodial decisions. The risk in the current system is that the divorcing couple will fail to settle custody at all because of their financial concerns. Then we face the highly unfortunate situation of parties litigating custody when the true issue may be financial. Court Services departments should consider expanding their services to include mediation of financial issues and, if they do not, the parties should be encouraged to use private mediators so all their issues can be resolved from the start.

The court should always inform the parties that the information they share in mediation is confidential, even from the court, and it will not have a negative impact on their case if they refuse to mediate. The judge or referee will not be privy to the parties' decision to mediate, and will only be informed once there is a mutual decision to go forward with the mediation process.

After speaking with the judicial officer assigned to the case, the parties should immediately meet with a highly qualified, court-approved mediator who can answer any questions they may have about this alternative to litigation. The parties would have the option of hiring that particular mediator, or could be referred elsewhere. When the parties choose mediation, the end result is positive for all concerned -- the parties, the mediator and the court -- a remarkable contrast to the experience of litigation in Family Court.

SUSAN COCHRANE was appointed to the Hennepin County bench as a referee of Family Court in 1995. She hears hundreds of cases each year, in all areas of family law, including contested dissolution and custody matters, domestic abuse, contempt and child support cases. She graduated cum laude from William Mitchell College of Law in 1982.

Divorcing parties in a contested case have a choice in this important matter. Because the results of litigation can be disastrous, the divorcing couple needs the opportunity to make an informed decision before they proceed with litigation.

This is analogous to requiring a surgeon to inform his or her patient of the unforeseen risks before a serious operation so the patient can give informed consent. What if the doctor knowingly failed to disclose a nonsurgical treatment that would have provided the same, if not superior results? Both bench and bar should consider these ethical questions in light of the known harm to families from the adversarial process.

All too often, Family Court referees, judges, therapists, lawyers, and family members have witnessed the unintended damage that resulted from a contested divorce, especially in its the impact upon the children. We do not need research to show us those unfortunate results; we see them almost every day. The court is in a unique position to provide an important public service to families. If the court acts before the couple decides to dissolve their marriage through litigation, the court can empower those same parties to reap the benefits of cooperation by diverting them to a program for alternative dispute resolution.

The Early Intervention Pilot Project
BEGINNING IN August 2000, Referee Cochrane started an "Early Intervention Mediation Pilot Project" which was designed to educate parties about mediation very early in the dissolution of marriage process, in collaboration with private mediators. The key components of the project are that the divorcing couple meets with the referee, and then with a private mediator to help them make an informed decision prior to any litigation. The primary goal of the project is to reduce the number of temporary hearings, and to afford the parties an opportunity to resolve their case in a cooperative manner. Before this project, the referee would not have seen any of these parties until the temporary hearing, where they were in an adversarial posture after filing damaging and contentious affidavits against one another.

The project has had remarkable success -- the number of temporary hearings has been reduced by 98 percent. Referee Cochrane was recently awarded the "Leading the Way" award for district court for this project. It was found to be an innovative and valuable public service, which has not only given divorcing couples control over their own lives, but has also saved many hours of court time, while costing the court nothing.

"Judges and referees would find this model extremely rewarding."