Pilot Program Applying Mediation to Domestic Litigation
By Judge Barbara Hatfield
Currently there are 6581 open domestic cases pending in Canadian County. I am one of three judges assigned to these types of cases. Our dockets are not just limited to domestic cases, but also include assignments to matters relating to probate, guardianship, criminal, civil, traffic, protective orders and small claims.
Our dockets are overcrowded and create frustration for people wanting to have their cases heard within a month to 45 days instead of three to six months, or in some cases even longer. When cases are set for trial, they normally require a full day of the judge’s time, with some domestic trials lasting much longer than one or even two days. It is important to the judiciary that people receive enough time and our full attention when hearing their case. We need to pay close attention to the issues which will have an effect on their collective future as a family.
The parties to a case have been on an emotional rollercoaster for months and there is a need to move forward with their lives. To complicate matters, most attorneys request a court reporter for matters that are highly litigated, which often applies to domestic matters, especially those in which custody and visitation are issues. In Canadian County, there are two court reporters who are shared by the three judges. Prior to July 2012, the three judges shared one court reporter. Therefore, it is not possible for each judge to have a court reporter every day, and scheduling dates with the attorneys and the court reporter can be challenging.
Going to court can be very stressful for parties who are not familiar with the court process. They are scared of the unknown factors – who will have custody of their children, their financial situations and whether or not they will say the right things in court. Everything is up in the air and the outcome is unknown. It is equally challenging for judges. A decision is made affecting the life of a family who is unknown to the judge. In addition, it is costly for litigants to come to court. Those of us presiding over these types of cases knew there had to be a better way for people to resolve controversies sooner.
At a judicial training in August 2011, I talked with Phil Johnson, assistant director of the Early Settlement mediation program (Early Settlement),2 which is a component of the court system. Early Settlement was a program I had heard of but didn’t know many details. He explained that Early Settlement has an intensive training program for volunteers who wish to become mediators to complete to help parties resolve issues. Volunteers come from all walks of life and can be attorneys or people merely interested in assisting others in resolving differences in the most functional manner possible. At that time, Cleveland and Oklahoma counties both used the program, and I learned that the best thing about Early Settlement was that it provided participants with opportunities to communicate their feelings and thoughts about how they would like to resolve their situations in an environment where their input was valued. By allowing for an open dialogue among the parties, they could clear the air and move forward in a quicker fashion.
I was interested and decided to investigate Early Settlement, especially after I learned that there was no cost to either party for ongoing cases. I remember thinking that when something seems too good to be true, it probably is. But I was willing to stay open-minded, as the benefits to this program seemed to be so promising for our overcrowded dockets. Since Cleveland County was an active participant in the program, I contacted Judge Lori Walkley about her experiences with Early Settlement. She had very positive things to say and informed me that she advised all of her cases go to mediation after filing. Her description of Early Settlement mirrored and detailed the information previously shared and gave insight into how the program worked from a practical standpoint. She added that in most cases mediation usually resolved some, if not all, the contested issues.
My next step was a discussion with the other judges in Canadian County, Judge Gary Miller, Judge Bob Hughey, Judge Gary McCurdy and Judge Jack McCurdy. They were open to trying the process in our county, so we contacted the Canadian County Bar Association to see whether they were receptive to this idea. We were pleased to hear attorneys were engaging in mediation and were very comfortable with it. They liked the results, and their clients were given an opportunity to discuss how they wished to resolve the issues surrounding their marriage and to listen to the other party’s concerns. The bar association members felt that mediation provided a forum where parties could clear the air and figure out a way to communicate with each other. They have the opportunity to craft their own marriage dissolution and tailor parenting time to fit their family lifestyle, division of assets and liabilities and can make agreements that a judge could not order that fit specific needs of their family. They liked the non-adversarial process for parties to meet and talk through their concerns in order to help them move forward to the next chapter of their life.
From a professional standpoint, the attorneys liked the fact that Early Settlement was low cost. The attorneys were satisfied with the mediators who were engaged through Early Settlement in terms of each one’s training and attitude. Although not every trained mediator is someone from the legal system like a retired judge or a lawyer, each person is well-versed in the strategies and goals of mediation. Participating attorneys thought it was beneficial that parties did not have to waste time and money discussing matters on which they could agree in an adversarial setting. They could settle the case in full or narrow down the issues to resolve through litigation. The attorneys, in short, supported this venture.
We decided a partnership with Early Settlement would be beneficial to Canadian County. Early Settlement requested that we recruit potential mediators as our part of the partnership, and we were able to recruit 13 people to go through mediation training as required by the program. Early Settlement has two tiers of mediators. Basic mediators, who assist in re-solving conflicts such as small claims actions, go through a three-day course. Family mediators must complete the basic training and an additional 40-hour intensive training to become approved to handle the high emotion that is part of domestic cases.
The basic program provides training in understanding conflict, communication, active listening, preventing impasse and includes practice scenarios. The Family Mediation Training is an intense 40-hour program involving a wide variety of family law issues.
Early Settlement provided a part-time coordinator to set cases for mediation in our courthouse, and Early Settlement is now part of our ordinary course of business.
This method of resolving issues between the parties instead of by a judge who does not know the dynamics of the family has been very successful. Parents are able to resolve their issues in a non-adversarial manner and move forward to the next chapter of their lives much more quickly and with more satisfaction. The court dockets are still full, but parties who want to resolve their issues amongst themselves have a forum to do so.
Early Settlement has an office in the Canadian County Courthouse, and mediators appear at every small claims docket, held each Monday afternoon. Although parties are not required to take advantage of their presence, the judges encourage each case to at least attempt to resolve issues through mediation first before proceeding to a full-blown hearing. Parties in mediation do not have to follow the rules of evidence; therefore, they can freely speak what is on their mind rather than being held to the limitations of the traditional courtroom testimony elicited through questions and answers. Resolutions can be creative and fit the needs of the parties. Since the project began in late 2011, 135 cases have been resolved through this partnership. Even though this number seems relatively small in comparison to the cases heard in Canadian County, when you factor in the amount of time spent to resolve them in the adversarial process, the time and money savings are significant for everyone involved.
This project has been invaluable because parties can resolve the issues to their satisfaction and have ownership over their own destiny. In domestic cases, although the parties are no longer together, they can compromise and create a schedule which is best for their children, which brings the focus of the case back where it should be — on the children. They can be as creative as they wish, and they can negotiate items that would never be considered by the court.
Parties can also be ordered to mediation when providing a pre-trial and trial date. This gives them an opportunity to attempt to resolve their issues and not lose their court dates if the mediation is not successful in resolving all or some of the issues.
The parties have an additional financial benefit, as mediation is low cost and their attorney fees will be reduced if they can resolve their case through an alternative method rather than a lengthy trial. The benefit to the attorneys is quick settlement, fewer client complaints and a greater likelihood for payment of the attorney’s bill in full — both because the costs are less and the client has become invested in the outcome of the case and therefore is more satisfied with the results.
Canadian County judges now have fewer cases going to trial and have parties to litigation who leave satisfied or, at the very least, can live with the agreement they helped to create. Based upon the cases that have settled through mediation, each judge has 10 or more days to hear other family matters that are not appropriately referred to Early Settlement, such as those involving domestic abuse or in which the disparity of knowledge between the parties is so great that mediation would not create a fair resolution to the contested issues. The judicial system appears friendlier instead of adversarial, not only because cases are processed more timely, but also because the system is seen as being interested in the parties as people, not just as faceless litigants. More cases will settle as the program becomes a part of the ordinary course of business, which is a huge benefit as Canadian County is the fastest growing county in Oklahoma and the fourth largest county in the state. Oklahoma is at the forefront of U.S. court case administration because of their initiation of Early Settlement and other programs that focus on restorative justice as well as their collaborative efforts prior to traditional adversarial litigation places. Canadian County is proud and excited to be a part of that effort.
Editor’s Note: This article was prepared by Judge Hatfield to reflect her experiences at the conclusion of the Early Settlement pilot program in Canadian County.
1. As of June 2013.
2. In 1986 the Supreme Court of Oklahoma adopted rules and procedures for the Dispute Resolution Act, O.S. 12 §1801 et seq., providing guidelines for the establishment of dispute resolution centers. The purpose of the Dispute Resolution Act is “to provide all citizens of this state convenient access to dispute resolution proceedings which are fair, effective, inexpensive, and expeditious.” Early Settlement Centers operate under the authority of the Oklahoma Dispute Resolution Act.
ABOUT THE AUTHOR
Barbara Hatfield received her undergraduate degree with honors from Belmont Abbey College in 1980 and J.D. from OCU School of Law in 1984. The majority of her legal career has been spent in the public sector. She was appointed a special judge for the District Court of Canadian County in February 2011.
Originally published in the Oklahoma Bar Journal, OBJ 85 349 (Feb. 15, 2014)