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Case LawFamily law today is very different from what it was even 5 years ago. There has been almost a paradigm shift towards a more collaborative family law process. There are probably many reasons for this. More family lawyers have mediation training, the advent of collaborative family law (where parties agree not to go to court), and a greater awareness of the tremendous emotional costs of acrimonious litigation on parties who often have to interact frequently for access reasons or support payments, are but a few of the reasons. But there is one procedural innovation which probably has done more than anything else to change the face of family law: The Judicial Case Conference!
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Forcing a Separation of Emotions from Legal Issues
A Judicial Case Conference may at first glance appear to be a very simple administrative step along the litigation path but in fact it is an ingenious device to put an emotional break on the cycle of acrimony, which often rush to Chambers with lengthy “mudslinging” Affidavits. Today, prior to a JCC being held, litigants are prohibited from proceeding with any contested matter and can not even serve an interim Motion or Affidavit on the other side, except with leave of the Court. This means that the initial further the already damaged relationship between the parties.
The significance of this can not be underestimated. By being prevented from making inflammatory accusations against each other at the beginning of the lawsuit often on legally irrelevant matters, the parties have a chance to focus on the substantive legal issues. The sooner they can separate their emotions from the legal issues, the sooner they can see a path to a sensible resolution.
The Magic Authority of Courts
Some might wonder why a meeting at Court with a Judge or Master is necessary if parties could just as easily sit down with a mediator. The answer is simple. The Court process is not voluntary and has authority and legitimacy that mediation can never attain.
Being in a Court room has a special aura. Some view it almost as a “secular church or temple”. Essentially all the parties are on their best behavior. This is particularly important given the intense emotional climate in many family law proceedings.
Facing the Alternatives
The parties are made acutely aware of the alternatives to settlement. They are generally warned about the substantial legal costs of ongoing litigation. Being forced to face fixed dates for discoveries, pre trial conferences, and trials, not only do they have a definite time line in which to try to resolve their differences but by having a clear path ahead, they know that they must deal with their problems or face substantial legal costs and uncertainty of a trial.
As lawyers, we sometimes fail to understand that most litigants are very reluctant to proceed to trial. While we may consider a trial exciting, for many of our clients it is downright terrifying.
Informal Judicial Guidance
JCCs are a unique opportunity to hear from a judge or Master on relevant evidentiary and substantive legal issues. Not all Judges and Master at JCC express opinions but when they do, they generally assist greatly in the process.
An experienced Master or Judge can reinforce the advice that we as lawyers have hopefully already given. For example, if a husband is reluctant to seriously consider spousal support, it is often very useful for the “difficult husband” to hear from the Court in a less formal setting than an open court room the harsh reality which he has to face.
Forum for Creative and sensitive Solutions
By having a face to meeting in a formal but not too rigid setting, the parties and their counsel have an opportunity to hear each other and exchange views with ongoing judicial input. It is the first time that the parties have an opportunity in a formal setting to say in their own words what it is that is truly bothering them. It allows the opposing lawyer to see and hear directly from your client. Your client can sometimes convey emotions which can humanize the process and lead to a fuller understanding from the other side.
Counsel writing letters back and forth trying to settle cases can easily reach an impasse. Face to face negotiations before a judicial figure, provides for immediacy and sensitivity to the other side’s position, which is hard to obtain in any other setting.
If the other side is also represented by counsel, with the Judge or Master, there are 3 legally trained experts, who can collectively fashion solutions which may require subtlety and complexities which are not possible in the usual adversarial setting of the court room.
Creative and customized solutions may spring to mind as the parties and their counsel engage each other, with guidance from the bench. The focus is on striving towards “win, win solutions” and not on a “zero sum game”. The interests of the parties are at the forefront rather than satisfying their craving often to “get even”.
I personally have been able to settle cases at JCCs or shortly after JCCs which would have been very difficult to settle any other way.
Opportunity for Early Disclosure
Last but not least, the opportunity for early disclosure should never be underestimated. One of the explicitly stated purposes of a JCC is to force early disclosure. Since September 1, 2006, Supreme Court Rule 60E (7.1) and (7.2) now require parties to exchange Form 89 Financial Statements prior to a JCC taking place. This will greatly enhance the settlement opportunities at JCCs since proper financial disclosure is a fundamental component of any rational negotiating process.
Counsel should focus on all disclosure issues well ahead of any JCC and should be careful to consider what it is that they truly need during the JCC. Clear time lines for disclosure are important and should be enforced, probably much more strenuously than they are currently.
Clearly the earlier the disclosure takes place, and if counsel have properly set out their client’s positions in attempted negotiations even before a JCC occurs, the higher the chances of reaching a settlement at either the JCC or shortly after it.
The foregoing is not meant to be an exhaustive listing of why JCCs have worked. What we do know is that JCCs have now become a permanent fixture of the family law process and if they are properly utilized, the chances for settlements increase substantially.
There are, of course, always improvements which could be considered. One of these might be to provide an option for litigants to elect a more formal “settlement conference” instead of simply a generic JCC. This would be particularly useful where there has been a long history of negotiations and relatively full disclosure. One or both parties should be able to request settlement briefs from the other side, which would then be exchanged within a reasonable period of time prior to the “Settlement Conference” JCC. In other words, the JCC would be turned into a formal Settlement Conference.
Other improvements may involve giving JCC Judges and Master more jurisdiction to make relatively simple substantive orders which not be by consent. For example, what would be wrong with having a JCC judicial officer make a child support order based on the information before him or her with an opportunity for the litigants to have the matter reviewed on a without prejudice basis in open court within say 14 days?
In summary, the more collaborative nature of family law today is due in large part to the JCC process. The system has become more “user friendly” and thereby added to the satisfaction of our family law clients.