The fact is that I do not know what is going to happen in the future, anymore than anyone else does. But, I think it is possible to make some prognostications based upon what is happening now.
In my opinion, the Minnesota district court system, including the family court, is facing a crisis of funding. There are not enough tax dollars to fund all of the programs that a healthy family court system requires in order to effectively meet the needs of the record numbers of people who are getting divorced. The result is a family court system that is only partially effective in resolving problem divorces.
Often, people who are getting divorced are at their emotional and financial worst. They can engage in arguing and bickering and worse. They can appear unreasonable and mean spirited. But, regardless of how a party comports himself or herself, he or she is entitled to legal representation and legal services that fairly and promptly resolve disputes.
If the resolution of an issue is not prompt, it is not fair.
Let me repeat that: if the resolution of an issue is not prompt, it is not fair.
Because of the lack of funding, there can be tremendous delays in getting a matter heard and decided by a judicial officer. One parent can be unfairly denied parenting time by the other parent, and during the months it can take to get the matter before a judicial officer, incalculable and unrepairable damage can be done to the child and parent relationship. And there can be tremendous delays in establishing child support and spousal maintenance which can lead to hardship and even the loss of a home.
I believe that in the future, we will see more and more “private” judges–that is, Consensual Special Magistrates who are hired by the parties to act as an arbitrator. In my opinion, this is not a particularly good idea for two reasons: 1. the parties usually have to pay a significant amount for this. 2. Consensual Special Magistrates usually wear two hats. Sometimes they work as magistrates and sometimes they work as attorneys. They can have great familiarity with one attorney on a case, but not with the other. They can tend to favor attorneys from big law firms, because they know that if they do, they are more likely to get repeat business.
I am aware of two prominent family law judicial officers who are leaving the bench soon in order to open up their own private mediation firm. My guess is that they will also serve as Consensual Special Magistrates. They have access to hard to get information about case levels, funding, staffing and other issues that are important to running a healthy family court. My guess is that, while I cannot predict the future, they probably can. And in that future, privately paid-for justice will figure prominently in the future of family court in Minnesota.
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