Alternative Dispute Resolution in Family Law Cases
August 31, 2008 by Loretta Oleksy
Judge Elizabeth Tavitas presides in Lake County Superior Court Civil Division 3 where she partners with magistrates and family law attorneys to help parents spend less time in court and more time focused on their children and areas of agreement.
Across Indiana, courts are embracing cooperative parenting and Alternative Dispute Resolution programs to give litigants the tools needed to become partners where possible and adversaries as a last resort.
Following a November 2007 seminar, 75 Lake County attorneys signed a pledge to work with the cooperative parenting plan and they still meet monthly.
“It’s a very collaborative approach between the bench and the bar. We’re all on the same page and we’re keeping everyone’s views in mind,” said Judge Tavitas. “It’s a child-focused perspective. An adversarial setting is not designed to deal with marital discord. People still need to be parents to their children”
Less than an hour’s drive away in St. Joseph County, Beth Kerns agrees that the collaborative approach works best because it focuses on families. She began her career as a counselor 23 years ago and now serves as Director of the Domestic Relations Counseling Bureau, Family Court Project Coordinator, and Alternative Dispute Resolution Plan Administrator.
Kerns said if a member of the bench asked her about the advantages of ADR, “I would tell a judge you will not be seeing these people over and over again.”
In Johnson County, Court Administrator Donna Sipe has seen the evolution in use of alternative dispute resolution. “More than 10 years ago, there was mandatory mediation in almost all domestic relations cases. Judges did that for two reasons: mediated results in family law cases are fairer and last longer,” Sipe said.
One tool Lake County uses is a parental cooperation program created by Charles Asher. The website is: www.uptoparents.org.
“The goal is to leverage as many resources as possible before families come to court, resulting in more agreements and a less crowded docket,” said Judge Tavitas.
“In these highly contested cases, parents never feel good after the trial is over. Problems won’t be solved by a judge’s order. You could have a five-day trial on custody and they are both great parents. Then they have torn apart each other on the stand. It’s too late for a judge to get them to be cooperative,” said Judge Tavitas.
The goal is to help parties agree on as much as possible and leave a smaller number of issues to be argued before a judge.
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How do you convince litigants that this approach is advantageous? “The parties know their lives and situations much better than a judge who hears them for two hours. I tell them they have the opportunity to make decisions,” Judge Tavitas said.
She has found that with ADR or private mediation, even in the most difficult cases at least some of the issues can be resolved outside of court.
It is essential to have the support of judges, litigants and members of the bar, especially when ADR programs become mandatory, according to Judge Tavitas.
“We had a long history in Johnson County of judicial encouragement and enforcement of ADR. It was very common for judges to require mediation in a civil case before they got a court date but there was a little bit of discomfort for the rule requiring it,” Sipe said.
“Attorneys have come to find that mediation isn’t an obstacle to getting to court and they are able to get results they wouldn’t have been able to get in court,” Sipe added.
In St. Joseph County, they have developed a screening tool. “It points out the issues and the real problem areas,” said Kerns. “Maybe they need mediation, community intervention or a parenting class. It could be they need a combination of things.”
Indiana’s first Alternative Dispute Resolution plan started 10 years ago in Allen County, and the success of that pilot program led the Indiana General Assembly to pass legislation in 2003 authorizing the creation of ADR programs in each of Indiana’s 92 counties. Today there are programs in 24 other counties: Boone, Brown, Clark, Crawford, DeKalb, Henry, Jackson, Johnson, Lake, Lawrence, Marion, Martin, Monroe, Montgomery, Orange, Owen, Perry, Pike, Porter, Putnam, St. Joseph, Shelby, Starke and Tippecanoe.
Counties wishing to participate in an ADR program must develop an ADR plan that is consistent with the statute and that is approved by a majority of the counties’ judges with jurisdiction over domestic relations and paternity cases. The Executive Director of the Indiana Supreme Court, Division of State Court Administration must approve the plan. The counties are required to file an annual report summarizing the ADR program each year. The Division of State Court Administration offers an ADR Plan Starter Kit, which is available online, and also provides technical assistance in developing a plan that is individualized to the needs of each county while still meeting the requirements of the statute.
Kerns said she received great support, ideas and input from courts in other counties and other states. “Look to the other programs and counties. They are just a phone call away,” she said.
Sipe added that going through the nuts and bolts of your ADR proposal with the Division of State Court Administration can help make a submission even stronger because you can learn what has worked well in other counties and what needs to be adjusted.
“And, as with any new program, you have to consider costs and sustainability,” Sipe said.
Information on Alternative Dispute Resolution is online at: courts.in.gov/adr.
The contact person for assistance in the implementation or use of ADR in Domestic Relations cases is Family Court Project Manager, Loretta Oleksy, firstname.lastname@example.org.