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An alternative to colosseum of family court

  • Article by: STEPHEN K. ERICKSON
  • January 15, 2012 - 6:58 PM

When I passed the bar in 1974, I went back to see one of the district judges who had urged me to go to law school in 1971 when I worked as a young Hennepin County probation officer.

He sadly told me that he was no longer hearing criminal cases, explaining that he had been "exiled to the family court" and "sentenced to a year of duty on the combat court."

I asked what he meant, and he explained that if a judge got on the bad side of the chief judge, you were sent to the family court (which they called "combat court").

Unfortunately, I see not much has changed in the Hennepin County District Court these past 40 years. Judge Lloyd Zimmerman may have a valid claim about safety and metal detectors, but the flap reported recently about his describing his transfer to family court as "punishment" ("New job for judge who insisted on secure court," Jan. 10) reveals more than the large egos involved.

Although some judges hate the family court assignment and view it as punishment, definitely not a rotation that will make their careers, an even more important problem is overlooked: One judge I know described it best when he said the reason so many judges dislike family court is that everybody there is angry and no one is ever satisfied.

Granted, a few like Judge Kevin Burke, Judge James Swenson and others relish family court because they hope to help families.

But they are handcuffed by an outmoded and costly process of helping people that says: Go out and find the most aggressive advocate you can, stake out the most extreme claim you can and turn the whole process into a contest to determine who is a better or worse parent or whose attorney is better at predicting what a judge (who by the way does not want to be there in the first place) will do if your case were heard after you each spend $10,000 to $20,000 preparing for the battle.

And be prepared to spend more on appeal when you don't like the result issued by the person who doesn't want to be there in the first place.

After practicing as a family lawyer for about five years in the 1970s, I left the practice of family law in favor of family mediation. I felt it was no longer ethical for me to represent one member of a family against another family member.

Along the way, we family mediators invented the concept of parenting plans, which ask parents a different question than the court does.

Instead of trying to determine who is a better or worse parent and awarding one of them custody, we ask parents to create a parenting plan where both parents create agreements and ground rules about schedules and other concerns, encouraging both to reach their potential as separate parents without one of them being labeled a noncustodial, visiting parent for the rest of their lives.

Out of the laboratory of mediation, couples began to engage in creative thinking, and rather than plotting the demise of their opponent, one couple invented the concept of a joint checking account for shared expenses of the children, contributed to by both on a pro-rata basis according to their incomes.

This allows for modification of expenses and contributions as incomes and the needs of the children change, without the need to run back to court every time to request a modification of child support.

Instead of trying to get as much alimony as possible, or to beat back the outrageous demands of the other party (i.e., if the person would work to their potential, they wouldn't need alimony), we tried a more sensible, nonadversarial approach in mediation: We ask people if it is possible to try to increase the self-sufficiency of the lesser-income spouse in order to meet the demands of the greater expenses of two households.

If so, then they can jointly work on creating a plan for accomplishing that goal.

Along the way, we family mediators have been told we are not being realistic about the true nature of the parties who get divorced. Yet, if judges don't want to be there, why do we send couples into such an inferno?

There is a growing movement around the country, not just among mediators, calling for the removal of divorce from the courts. Divorce is not a contest.

Families are not a meal ticket for gladiator lawyers to use to make large fees in pursuing the contest. People in divorce will only be protected when we provide guidance about how they can be more cooperative, not more combative.

This will only occur when the public recognizes it is in their best interests to stay away from family court and enter a mediation process with a trained, client-centered mediator -- one who doesn't just pretend to be a mediator by keeping people in separate rooms and telling them what they would get if they went to court, but with a mediator who actually cares about people enough to help them find balanced, shared and fair results rather than victories and losses.

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Stephen K. Erickson is a mediator in Bloomington.

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