Facilitation: A Win-Win for Courts and Unrepresented Litigants
February 7, 2014 by Leslie Dunn
More and more litigants in family law cases are appearing in Indiana’s courts without the assistance of lawyers. Whether this phenomenon is due to economic reasons, the proliferation of self-service information on the Internet, or other factors, the fact remains that these unrepresented litigants need assistance in completing pleading, filing them, preparing for court hearings, and understanding the court process.
Facilitation—a form of conflict resolution that is similar to mediation but less formal—is an effective tool being used by several Indiana courts to streamline and expedite cases involving unrepresented litigants. Many courts have been able to resolve these cases by implementing a facilitation process that ensures that appropriate pleadings are filed and that the litigants understand the process and have an opportunity to reach an agreement on the issues. Streamlining the process starts with making sure that the appropriate pleadings are filed.
In Lake County Superior Court, Judge Elizabeth Tavitas used family court grant funds to develop a pro se legal clinic and pro se forms that comply with court rules. Litigants who meet the financial eligibility requirements can attend the once-a-week clinic, which is staffed by volunteer attorneys. The attorneys assist the litigants in filling out the forms, without undertaking to represent the litigants or providing legal advice.
Judge Tavitas has also created self-represented litigant form packages, which contain all the forms needed to file a divorce, modification of custody, or other related actions. Judge Tavitas stated: “We try to be as accommodating as possible in order to ensure access to justice for people with limited funds and to expedite and simplify the court process.”
After the proper pleadings are filed, unrepresented litigants must learn to navigate through the next steps in the process and how to achieve a cooperative solution. In Judge Tavitas’ court, the pro se cases are set for provisional hearing on a specific day of the week.
On the day of the hearing, litigants meet with a court facilitator at no charge. The facilitator helps the litigants identify the issues and complete the financial declaration forms. Providing the facilitation service on the hearing date increases the likelihood that both parties will be present and be able to reach an agreement.
In an overwhelming majority of these cases, the facilitator is able to resolve all of the issues, help the parties reach an agreement, and help present an agreement to the court. This process saves the court time, expedites the case decision, helps ensure fairness, reduces conflict, and helps families with limited funds have better access to justice.
Judge Tavitas noted: “There may be resistance to self-represented litigants, but courts will save time if they develop a program or process to help them. Pleadings will be more accurate, service will be made correctly, issues will be narrowed, and agreements will be reached. There will be fewer hearings and mistakes. All this improves the experience for both the litigants and the courts.”
In Lake County exit surveys, pro se litigants unanimously had a positive experience with facilitation. It is a win-win outcome for courts and litigants.
Vanderburgh County also experienced an influx of unrepresented litigants and became interested in starting an unrepresented litigant clinic similar to Lake County’s, but lacked funds and staff. The Vanderburgh Superior Court started the clinic on a smaller scale using a modest family court grant and the assistance of pro bono attorneys.
Two times per month, the court operates a drop-in clinic, staffed by attorneys from the Volunteer Lawyer Program of Southwestern Indiana. The attorneys do a brief intake to determine financial eligibility, assist the litigants in filling out the necessary forms, and provide guidance to achieve the required service. They also are available to assist parties who reach an agreement in finalizing a settlement.
Vanderburgh Superior Court Judge Mary Margaret Lloyd, who helped start the clinic, observed that the clinic has been a huge benefit to both the courts and the families. “Judicial officers now have a place to send people to address their needs and help them obtain timely resolutions. The number of continuances in family court cases due to a lack of preparation by the parties has dramatically decreased.”
The Volunteer Lawyer Program of Southwestern Indiana has developed a wonderful resource, called Creating a Self-Represented Litigant Clinic Handbook, to help other courts start an unrepresented litigant clinic. This document is available through the Indiana Supreme Court Division of State Court Administration (Division).
The Johnson Circuit Court operates another example of an effective facilitation process in conjunction with its Family Court Project. Facilitations are scheduled weekly with priority given to cases involving children.
The court provides parties with its “Notice to Self-Represented Litigants” that refers them to forms and resources and explains the court’s process and expectations. Parties must complete the “Pre-Hearing Worksheet” that solicits key information used to narrow the issues and document the parties’ agreements on property and child-related issues.
Porter County Circuit and Superior Courts implemented facilitation to help resolve issues involving children in paternity cases. The courts used Family Court grant funds to train several probation officers as mediators.
Through a partnership with the prosecutor’s office, all paternity cases with custody and parenting-time issues are referred to facilitation. The facilitator’s goal is to help the parents focus on the child. Together they map out a specific parenting-time plan. Parents can return to facilitation before going to court for subsequent issues that might arise.
Porter County Circuit and Superior Courts also used family court grant funds to train attorneys as mediators in exchange for the attorneys’ agreeing to facilitate divorce/custody cases at a reduced cost.
Porter Circuit Court Judge Mary Harper, who oversees the facilitation programs, noted: “The most important aspect of facilitation is that it keeps the case from being a long, drawn-out, high-conflict battle. It stops the turmoil and allows us to intervene right away and get a plan in place. This is ultimately better for parents and kids.”
Developing and implementing a facilitation process for unrepresented parties in family law cases is not complicated or difficult. Many resources—such as forms, handbooks, and experienced court staff—are available to courts that are interested in starting such a process.
Funding, which is often a challenge, is available through the Supreme Court’s Family Court grant program and local Alternative Dispute Resolution (ADR) programs funded though a $20 ADR fee. (See IC 33-32-6 -1).