There is a recent phenomenon in the Family Law Courts in New Hampshire that can be described politely as gridlock. There is no secret that the state’s resources for keeping the courts operating have been dwindling with the poor performance of the economy and accompanying decrease in state revenue. People are not getting access to the court to move their cases along. Add to that the nature of family law and you have a very difficult situation. This essay will attempt to address the reasons why it is the way it is and what possible solutions might be available to ease the untenable status quo.
I attended a recent luncheon that addressed the economic circumstances of New Hampshire. I learned that the state’s revenue is basically at the same level it was in 2006. The economy is growing as is revenue but there has been so much of the state’s revenue earmarked for the payment of interest on debt that was accumulated during the slowdown that we are in effect in a worse place than we were six years ago. Growth is projected and predicted but on a very slow and steady pace over the next few years. I believe this slow growth is a good place for the state to be because all systems will have an opportunity to adapt to the new economic frontier. Unfortunately, it does not do much for people who are in current crisis and need access to the court. Eyes turn toward the question of what to do.
Litigants cannot afford to litigate as they have in the past. The days of slow march through Georgia in the form of a “motions practice” are over. Results from this type of practice will come so slowly that it will be intolerable for the litigants who are attempting to address the needs of their families. There are three ways to address this problem starting with the parties’ attitude toward the litigation. Family law has always been an emotionally charged subject. Unfortunately, if you are going to enter the process, you need to look at it as a businessman would look at a problem to be solved and not as an emotional upheaval that will somehow bring a psychological payoff in the end. My experience is that this expected emotional payoff will be a disappointment. A litigant is much better off getting through the process and beginning to change his or her life in a positive direction.
Second, the system has adapted by setting up discovery rules that are mandatory and expeditious. While everyone is angry about these rules in the present because they are difficult to follow, there will be benefits in the end. Getting right down to the economic issues of any family law problem will expedite the results. The less time that is spent on expensive discovery, interrogatories, and depositions will be money in the pocket of the parties.
Lastly, mediation has been ordered as mandatory by the court in most situations. This is recognition of the fact that continued war between the parties without at least finding which issues can be agreed upon is a waste of time and the court’s resources. It only makes sense to narrow down the issues that need to be litigated before embarking upon costly, difficult to schedule, and emotionally turbulent court hearings.
I am also a believer in private mediation and, when necessary, private binding arbitration. For parties with some resources, it makes sense to purchase access to the system where it is possible. There will be long term savings if the parties can agree on most issues and then have an expert decide those few issues that they cannot decide on their own. An open minded and realistic view of the system is necessary. Collaborative law is also an alternative to the litigation road. I became certified as a collaborative law lawyer last spring through the training offered by the Collaborative Law Alliance. It is a very different way of looking at the processing of marital cases. Some people do not believe it will be successful in the long run. It is not right for every case. In some cases, however, it can be a better solution to resolving parties’ issues than the current system that exists.
The parties will have to adapt to the resource limitations that currently exist within the family law system. Those who do not will pay more both in terms of economic resources and their own emotional investment in the case. We are in for the long haul with the system that we have. Those who adapt will be doing themselves a favor.
By: Kent M. Barker