Recently the San Francisco Superior Court announced that by the end of September 2011, there will be severe cut backs in courtrooms and judges and custody mediators available for civil litigation and divorces. The staff lay-offs and court room closures in San Francisco are expected to have a devastating impact on the ability of families to separate, settle their family and custody matters, and obtain even a simple divorce. Uncontested divorces may take up to a year and a half to be completed – instead of the minimum of six months and a day now allowed by state law. The San Francisco Family Law Court formally announced its recommendation in support of ADR (“Alternative Dispute Resolution”) approaches, including Mediation and Collaborative Law. As one of the earliest and most experienced practitioners of SF Family Law Mediation, Collaborative Law and other ADR specialties, we could not agree more and are here with more experience and options to serve the SF community
The severe cuts in service are already creating havoc with access to the courts and the ability of San Franciscans to obtain vital services. Long lines are forming at court clerk offices. Local and national newspapers including The San Francisco Chronicle, The S.F. Examiner, and The New York Times are featuring stories about this crisis and the impact on our citizens who are seeking resolutions of their family conflicts and justice.
While this news is likely to hurt many San Francisco couples and families, there are some excellent alternatives to the public court system presently available that provide fair and faster resolutions for families than what the courts will be able to provide. Anyone in a position to help families who need to separate or divorce or resolve parenting disputes should become versed in the various “Alternative Dispute Resolutions.” Even the San Francisco Superior Court is advising all couples who file divorces to explore these alternatives to the traditional judicial system. Couples can find professionals who will facilitate their peaceful separation, parenting plans, and division of assets without having to resort to lengthy waits for judges and courtrooms.
Besides traditional negotiation between the parties, with or without attorneys present, there are four well-established methods from which to choose a path to settlement and the results of these methods are usually more favorable and far less expensive than traditional litigation. These alternative resolution options presently available with many trained professionals ready to assist couples and families in need include: Mediation, Collaborative Law, Arbitration, and Private Judging.
In Family Law matters, couples have been “mediating” their divorces and custody matters since the mid 1970’s for far less cost than a traditional adversary litigated divorce. Couples meet alone with the neutral mediator who is on neither party’s side. The clients may have a consulting attorney who at times can also be present or on phone standby. All decisions are made by the parties with the mediator assisting with suggestions and facilitation. Couples find solutions that benefit everyone, especially the children. Most attorney mediators help by preparing the divorce papers and sending them on to the court for filing. The parties may engage consulting attorneys to review the agreement or provide advice along the way, but these engagements are usually limited in time and expense to a specific issue or document review.
For the past fifteen years or so, a new method involving attorneys and clients working all together has evolved called “collaborative law”. Much like in mediation, everyone is working for the good of all parties and especially the children. However, in this model, each party has his or her own attorney present at the meetings and the couple with their attorneys and other professionals as needed all meet together to reach an agreement that encompasses the goals of the parties. The attorneys have been specially trained not to revert to traditional litigation tactics and attitudes, and all professionals agree not represent the parties should matters need to be later litigated.
Another method familiar to many civil attorneys is “arbitration” where the clients and their attorneys prepare the case and present it to an arbitrator who is often a specialist in family law. Unlike with mediation and collaborative law, the arbitrator actually makes a decision for the parties, so this is more like being in front of a judge. Arbitrations can be “binding” or “non-binding”, meaning that you get the opinion, but you do not have to abide by the decision. These proceedings are usually informal with no court reporter, and no waiting to have a judge or court room available. They are most often used for property disputes in family law.
Family Lawyers are frequently turning to “private judging” to have contested issues tried more efficiently and rapidly than in the public system. Private Judges may be retired judges or commissioners, or family law specialists. The parties usually share the cost and the judge makes an actual decision which is binding upon the parties and submitted to the court for filing in the official case. The judge also sets up a process to handle interim disputes so it may be possible to avoid costly interim hearings and motions. There is a criticism that this system favors the more wealthy clients and families who can afford private justice. However, given that there is no waiting and no wasted time and the judge who is hired is devoted to your case, this can often be a less costly alternative than waiting for a regular judge to have time to hear your case. Going to trial, which used to be done piecemeal and on different days and stretched over weeks or months can now be efficiently accomplished in a few consecutive sessions.
As difficult as it may be, the closing of the courts and lay-offs of personnel actually creates an opportunity for couples and families to explore methods to resolve their conflicts in which they themselves will participate and have a much greater role in the making of the decisions which will impact them and their children for many years to come.