January 22, 2013
COMMENTS FROM THE NEW YORK COUNTY LAWYERS’ ASSOCIATION MATRIMONIAL LAW SECTION REGARDING OCA ADR PROGRAM FOR
The Matrimonial Advisory Committee has proposed rules (hereinafter, the “Rules”) establishing a statewide alternative dispute resolution program for matrimonial actions. The Office of Court Administration has invited comment. This memorandum represents the opinion of the Matrimonial Law Section of the New York County Lawyers’ Association (hereinafter, the “Section”) in response to the Rules.
The Rules arise from a concern about operational efficiencies in the courts and specific interests in reducing the number of cases going to trial and reducing the stress of divorce for litigants (see Letter from Hon. Sharon S. Townsend, dated July 31, 2012, Exhibit A, annexed hereto). Detailed commentary follows below.
Parent Coordination has proven a very effective tool in helping parties comply with divorce agreements and keeping them out of the courts post-judgment. However, the Rules in regard to Parent Coordination place a range of responsibilities on the parent coordinator beyond how that role is defined. In over broadening the definition of parent coordination and citing it as a pre- settlement tool, the Rules dilute and confuse the proper role of a parent coordinator, as well as that of other modalities provided by neutral mental health professionals that may be helpful in the facilitation of settlements. To effectively utilize mental health modalities to aid our work, legal professionals should respect and apply the language and terms of the mental health profession with specificity. “Parent coordination” should not become a catch-all phrase for mediation involving parents.
If ADR by mental health professionals is to be employed, proper modalities with accurate definitions and properly prescribed use should be incorporated in the Rules. We address three below that may be useful to the court on a regular basis:
- Parent Coordination: parent coordination is employed post-judgment in order to help parents to comply with an agreement and/or orders of the court. The Section believes that this should remain the scope of parent coordinators and that there should be no ordering of parent coordination prior to a final judgment of divorce. Naturally, in post-judgment actions, referral to a parent coordinator may be appropriate. The goal of parent coordination is generally limited to preventing court involvement by working with the parents over an extended period of time.
- Parent Education: parent education is a process by which the neutral attempts to facilitate cooperative co-parenting by educating the parties as to practices and conduct that reduce conflict and are beneficial to the children and, in contrast, educate the parties as to practices and conduct that has a negative impact on the children. A referral for Parent Education may be appropriate and helpful during the pendency of a matrimonial action.
- Parenting Plan Development: parenting plan development is a process by which a neutral assists the parties in developing a workable visitation plan. This task is not articulated under the Rules’ definition of Parent Coordination. However, if rules are adopted allowing courts to order neutrals for parenting issues, the Section believes that referral for Parenting Plan Development should be among the modalities available.
On the other hand, if by “parent coordination” the drafters of the Rules really mean mediation relating to parenting issues, then “parent coordination” should be struck in its entirety and parenting issues should be incorporated into “Mediation.”
The Section recommends against the ordering of collaborative law. The ability of collaborative law to produce just outcomes is predicated on the parties – and attorneys – not engaging in the litigation process, which has already commenced if they are being referred by the court.
Moreover, collaborative law requires collaboratively trained attorneys for each party. The attorneys chosen by the litigants to pursue a traditional divorce may not have the training for a collaborative process. In addition, if the collaborative process is pursued with traditional divorce counsel and fails, the litigants will be back to the drawing board for a traditional divorce and, now, without their preferred counsel for such an undertaking. The ensuing delay while the litigants seek new counsel and the case languishes on the court calendar will run counter to the goals of reducing litigant stress and improving court efficiency.
Perhaps, educating the public in general and litigants in particular about the collaborative alternative upon the commencement of the action would prove more productive. As the process requires an agreement of cooperation between the litigants and the parties, they could then select their counsel accordingly, prior to a Request for Judicial Intervention being filed.
Time Allotted by the Rules
The unfortunate truth is that the Rules are inherently impractical in their allocation of time for all of these forms of ADR. For example, under the Rules, the court may order one hour of ADR, although the New York County Neutral Evaluation Program for matrimonial actions and the Commercial Division Mediation Program both offer three free hours of mediation. An effective start to the process of resolution would require a minimum of three to four hours as most of these litigants can ill afford another cost associated with the courts
Cases Referred by the Court
The Section is aware of the Rules’ exception that ADR will not be ordered when there are allegations of “a severe power imbalance between the parties.” However, the parties themselves may be unaware of these dynamics in their relationship and such imbalances are not always perceptible to third parties such as attorneys or the court. We are concerned about how searching the inquiry will be to determine the existence of an imbalance of power between the parties.
The Rules do not provide any protocols for the implementation or administration of the recommended programs, an essential component of the success or failure of the program. The Section recommends that uniform protocols must be established state wide.