Are We the Canary in the Mine Shaft?

Last week, I had the opportunity to mediate as a volunteer for the Superior Court in Hunterdon County in what is called “the Blitz.” This is a process where the oldest and most difficult divorce cases are brought in by the Family Division to meet with a panel of two attorneys for intensive mediation. The Blitz is intended to be more involved than the Early Settlement Panel (“ESP”) conferences, and follow the economic mediation, which is also required if the ESP is unsuccessful. My panel was assigned four cases that all averaged two years on the docket from date of filing.

The first thing the parties heard from the judge that morning was that the Court did not expect to try any cases until sometime in 2010! If you recall from my March blog post, the Court then had announced that it did not expect to try cases for several weeks. So, the situation has gone from difficult to dire for people having trouble settling their cases. The judge added that if the Blitz did not work, then they still had to endure a very long time before they could expect to start a trial, and then the Court noted that it would not be able to commit successive days to the trial, but rather, call the parties in when the judge’s calendar permitted. Could our situation be anymore critical?

Is Hunterdon unique in this regard? Or, will more and more county courts, as well as those in other states, feel the need to cut back court time for divorcing couples due to cuts in state budgets? Has Hunterdon County become the proverbial canary in the mine shaft?

Understandably, the parties who came to our panel were not happy. First, they had been litigating for two years with no light at the end of the tunnel. Their legal fees were probably already in the tens of thousands of dollars. The economic bust had reduced their retirement accounts, and were further stripped through withdrawals in an effort to keep up with the living expenses of two households. Further, several of the parties owned businesses, so their profits were way down and with no prospect of an upturn anytime soon. How do you determine alimony under these circumstances? One could not have predicted more heart rending situations to mediate just a year ago.

There was no happy ending to the several matters we mediated that day. However, each party lowered their defenses after we gave them the time to lay out the difficulties blocking a final resolution, and once they understood that we were willing to spend as much time as possible to move the case toward a settlement. As soon as they began to trust us and the process, then progress began.

The point here is that the Blitz mediation in effect became a collaboration among the parties, their attorneys and the two mediators. The dynamic was working. Each of the parties left us with what appeared to be a new resolve to work at the difficult issues, and some even came up with action plans to reach the next step toward resolution. My panel partner, Patricia Smits, who is also a fellow member of the New Jersey Collaborative Group, and I were very gratified by what we witnessed and the thanks we received from each of the parties and their attorneys.

If the collaboration method can work for the hardest cases on the docket, then it will certainly work for the average dissolution. Imagine that these parties had a neutral financial consultant available at our Blitz, as they could have had in a collaborative setting, or a divorce coach present to assist in the stubborn parenting issues preventing a resolution of the economic issues. The sessions would likely have been more productive, and the divorces likely resolved much sooner, and with less stress to the family.

Now that the Court here has essentially announced its inability to resolve the most difficult cases by way of trial, alternative dispute resolution, such as collaboration, is the only method available to effectively bring about a final resolution to marital dissolutions.

Perhaps our Court's dilemma is the reason why over thirty attorneys and mental health professionals have signed up for collaboration training in June here in Hunterdon (or perhaps better referred to now as "the judicial ground zero"). Linda Piff of The Jersey Shore Collaborative Group will take the lead in this course. Like me, these professionals will grow from the experience and, ultimately, the public will be better served.

Thank you for reading my thoughts and please visit my new web site: www.kscounsel.com

BE ADVISED that these comments are not legal opinions and are not to be relied upon as legal advice. If you need legal advice, contact your county bar association; most of which have referral services. If you desire a collaboratively trained and certified attorney, go to http://www.collaborativepractice.com/

© Kevin M. Kilcommons, 2009