The Massachusetts Probate and Family Court, which hears cases related to divorce and other family law matters, has proposed changes to its Standing Orders (rules) which would promote greater use of Alternative Dispute Resolution (ADR) case settlement techniques such as mediation, conciliation, dispute intervention, and settlement conferences. The proposed rules are in the public comment process and the public will now have until September 20, 2016 to comment on the possible rule changes.
One of the purposes of the proposed rule changes is to provide a “child-focused” process that is better adapted to cases which involve conflict between parents and care givers regarding children. The Preamble to the proposed rule changes states that a “consistent research finding is that children are harmed when they are exposed to conflict between their parents.” My own experience handling hundreds of divorce cases confirms what the research suggests – a high conflict divorce and parental separation process can have profoundly negative effects on children. The process of battling out a divorce via courtroom litigation correlates with negative effects to children because it is almost impossible for two parents to hotly litigate a divorce case without increasing their children’s exposure to negative conflict. The Preamble to the proposed rule change essentially acknowledges this when it states that the “importance of resolution without trial is reaffirmed.” The proposed rule changes are intended to reduce conflict between divorcing parents and they would apply to all divorce, paternity, and modification cases involving custody or child-related disputes or property division, debt allocation, or alimony disputes.
Proposed Standing Order Xa-16 would facilitate the early settlement of divorce or family law cases by establishing an “Early Case Settlement Process” having the following characteristics: (1) Limited discovery (the process of obtaining documents or information relevant to a case); (2) Limited Motions (a limit of 2 court appearances to obtain a temporary decision or relief from a judge while a case is pending); and, (3) Required participation in a “Settlement Conference” before the court will schedule a Pre-Trial Conference date or a contested trial date(s). The Early Case Settlement Process will be available in cases where both parties agree to utilize it . To participate in the Early Case Settlement Process both parties must make a written request to the court using a court supplied form and both parties must have already complied with certain specified discovery tasks. The discovery tasks which must be completed include the exchange of asset and liability documents, pension documents, deeds, loan applications, appraisals, credit card statements, Social Security statements, tax returns, paystubs, credit reports, and other specified documents.
Proposed Standing Order Xa-16 also includes a requirement for mandatory ADR screening in Hampden, Norfolk, Plymouth, and Worcester counties in all cases involving a contested custody dispute. The proposal defines “contested custody in divorce” as any case where the parties “are not in agreement as to all terms of a parenting plan including legal custody, residential and parenting schedule.” In these cases, the Court will refer the case to an approved provider of court-connected dispute resolution services (as defined by S.J.C. Rule 1:18) before a Settlement Conference or Pre-Trial Conference date is assigned by the Judge. This significant change in court procedures would essentially require that the parties to a child custody dispute participate in mediation/conciliation/dispute intervention before their court case could proceed into the more substantive parts of a litigated child custody case. This watershed change would not require that the case be resolved via ADR but it creates a process where the parties would have to attempt to resolve their child custody dispute via ADR before their contested custody court case could proceed.
In addition to the establishment of an “Early Case Settlement Process” option and required ADR screening for contested custody cases, the proposed rule changes would also require “Settlement Conferences” in all contested divorce and divorce modification cases involving disputes over child custody/parenting, property division, debt allocation, or alimony. The Settlement Conference would be required before the case could be assigned a contested trial date. The Settlement Conference would take place after the parties had completed their parent education course (if applicable) and after discovery had also been completed. Under current Probate and Family Court procedures, most divorce cases cannot obtain comprehensive settlement input from the assigned judge until the date of the Pre-Trial Conference. If the proposed rules are enacted, a divorce case would more or less get settlement assistance from the judge on two separate occasions prior to a contested trial date – at the Settlement Conference date and then again later at the Pre-Trial Conference date. As a practical matter, this change should increase the number of divorce cases that settle without contested trial because the parties will be exposed to substantial input from their judge on what the fair terms of settlement might be.
So what is the bottom line of these proposed changes ? The courts themselves appear to be acknowledging that divorce and family law type disputes are often poorly suited for resolution via the litigation process. Notwithstanding that mediation is growing more popular every day and is being embraced by Judges and court administrators – divorce cases involving physical abuse, significant financial fraud, or criminal type conduct will likely continue to be resolved primarily by the courts – and that is proper and appropriate. But for everybody else, and that is most divorce cases, mediation will be your lowest cost, lowest conflict, and most child friendly process for ending a marriage or addressing a family law issue.