Integrating Non-Conflictual Approaches To Resolving Family Law Cases
by: Hon. Gretchen W. Taylor
©2010 The Daily Journal Corporation
While it is hard to dispute that the family court experience is only randomly effective in servicing the very litigants who are the reason for its existence, the inference that this is the fault of presiding and other judges for failing to implement 'appropriate' case management controls, or that the assumed lack of these controls has itself created a 'backlog,' may miss a more fundamental but nonetheless subtle point: Believing that only the county, government in general, or judicial officers individually can and should provide the solutions for exclusively assisting family law disputants in efficiently overcoming their grievances, and that court officials alone can rescue a broken system and those whom we would serve, is the myopic traditional view that is rarely questioned. This perspective is the real culprit in the failures of the family law justice system to meet the needs and expectations of family law consumers.
Supervising Judge Tim McCoy has voiced the latest challenges of our times on the Los Angeles family law public, including predictions for layoffs and courtroom closures. As these occur they will further pressure a system that is not meeting the needs of those it serves, even in the best of times. But is this the fault of judges, and is it due to a lack of case or court management per se? This is a familiar scapegoat. We need to sharpen our focus if we are to fashion an answer to serving families in crisis successfully.
The California family court experience largely operates today as it has for over three decades. At this unheralded juncture we have an opportunity to rethink what the role of judicial intervention for family law litigants could look like by considering how to devise a method for relying upon, incorporating, or borrowing from innovative models for supervised peacemaking resources that already exist within the private sector of the Bar. Examples that may benefit us include the young but established traditions of transformative mediation and collaborative law interaction, among others. Rather than laying blame for the inefficiencies that derive from the overall assumptions made in adversarial dispute resolution at the doorstep to the courthouse, we ought consider whether we can creatively grow and merge our existing system with other developing models.
The "Elkins Family Law Task Force" draft recommendations for overhauling the delivery of family court justice, enhancing due process, and improving access to dispute resolving modalities are alluring. Implementation of these recommendations statewide could revolutionize the court experience for all including the segment of disenfranchised litigants who cannot or do not want lawyers. Yet, most today are illusory given their focus on more judges and courtrooms. "Elkins" addresses a panoply of family court ills, and the recommendations are inspirational but unrealistic for the near future. To this extent the answer of "Elkins" is to throw money at the problem, money which we don't have.
In the peacemaking realm, "Elkins" recommends ADR assessment at the initiation of a case, early intervention with judicial involvement, litigant education, and settlement assistance and programs. We have a menu in "Elkins" that could form a recipe for enhanced reform. Changes implemented should be complementary and integrated and respond in a healthy way to the needs of its consumers. This cannot occur through government sponsorship alone.
The master calendar approach has been found to be inadequate in meeting families' needs, and lawyers' concerns for consistency in orders, and continuity of case management. Judges do desire in depth knowledge of each family's issues and dynamics in order to make better decisions within the unique context of each case, but the suggestion that one unique family's case can be dissected into "types of matters' and just to be sent out in litigated pieces, issue by issue, to different judicial officers is not an efficient response. We need to adopt a forward thinking paradigm.
Civil judges and lawyers, as well as civil statutes, have implemented mandatory case management tools and some optional dispute resolution opportunities that might be adapted to the family law system. A family law arbitration statute is perhaps long overdue. Meet and confer in family law is practically non-existent. The case management statute for family law is by stipulation only. Local court rules consistent with "Elkins" can be drafted, adopted and implemented to offer opportunities for mediation and settlement using qualified bar members, judicial officers, education, and resolution of cases outside of the courtroom while we await legislative change. Pending a response from Sacramento, we should offer all takers opportunities to do so and learn how to recognize, support, and encourage these alternatives long before cases get to the courtroom.
Peacemaking is one form of therapeutic jurisprudence that is responsive as an aid to the resolution of family or partner conflict and breakup. Whether it is through the use of consensual dispute resolution with trained attorneys or mediators, or workshops focused on resolution, these options can be offered and explored as a precondition to accessing the courtroom.Traditional case settlement efforts inside and outside the court should be offered early and often and not as a last resort just prior to trial.
We must look beyond the state of California, and the court or county officials, to save us. Change must be orchestrated within the court by accessing resources outside it. Peacemaking opportunities need to be created within the family court context and offered to those many families longing for a plan focused on the solution rather than more ineffective court appearances that deal only with the problem. Beleaguered judges, who cannot hear all comers no matter what the reform or management approach is for the system, will benefit by having the road to the courtroom paved with options that allow those who can to opt out or unbundle at many points along the way. The public will soon demand it.
Court management and budget cuts have not caused a backlog; it is the lack of current will to look at family and partner conflict as an opportunity for mindful concern for outcomes rather than encouraging increased access to litigation opportunities that restrains and confounds us today. Is it not time that we consider supporting our constituents in profound new ways?
Gretchen W. Taylor (Ret.) is a Commissioner of the Los Angeles County and Riverside County Superior Courts. She is a certified family law specialist and a private neutral with ARC.