I believe that in 2012, Minnesota Family Law will continue on a trend towards private resolution of divorce cases.  In large part, this is dictated by the current legislative attitude towards raising revenue and funding services, specifically funding the Minnesota district court system.  A few years ago, the Chief Justice of the Minnesota Supreme Court gave a candid and forthright interview in which he described the financial crisis that the Minnesota courts were in at that time.  Well folks, it hasn’t gotten any better.

So, what does private divorce case resolution look like?  Well, first, you have to pay for it.  Whether you hire a private mediator, a financial or custody Early Neutral Evaluator, a private arbitrator, or a consensual special magistrate, you – the person getting divorced – have to pay for it.

Mediation is a process where the parties and attorneys meet with a mediator in an effort to negotiate a resolution to their disputes.  While mediation is often required by the court, you cannot be “forced” to settle a case on terms you do not like.  In other words, while participation in mediation is often mandatory, settling a case in mediation is voluntary.  If you do not like the final offer of the other side, you can walk away from mediation and go to trial.  Mediation is confidential, and if you do not settle the case, the divorce judge is not allowed to know what it is that you talked about.

The Early Neutral Evaluation (ENE) process is similar to mediation.  Many counties offer Early Neutral Evaluation for both custody and financial issues.  The primary difference between mediation and ENE is that in the course of the ENE process, the evaluator will give the court an opinion about how a judge would decide the case, if the case went to trial.  The purpose of this is to give both parties an unbiased insight into their facts and legal issues, in an effort to prevent continued litigation.  Counties in the metropolitan Twin Cities area offer an ENE process.  These include Hennepin, Ramsey, Anoka, Wright, Sherburne, Washington, and some others.  I have some problems with the ENE process.  Often, the persons giving the evaluation are not licensed attorneys.  It is illegal for a non-licensed attorney to apply a legal analysis to a fact situation.  That is called “practicing law without a license.”  But, the courts do not seem to mind.

An arbitrator or consensual special magistrate functions like a privately-paid judge.  Unlike mediation, you cannot be required to participate in arbitration.  It is voluntary.  An arbitrator is an attorney, not a judge.  If you hire an arbitrator, he or she will conduct a trial and decide the disputed issues, just like a judge does.  The benefit is that you can usually resolve a case through arbitration much more quickly than you can if your case goes to trial before a judge.

Hennepin County offers something called a mediated settlement conference.  As far as I know, Hennepin County is the only Minnesota county that authorizes this in divorce cases.  Participation is voluntary.  Essentially, the parties meet at the courthouse for a settlement conference.  The settlement conference is mediated by a private mediator.  The judge presiding over the case is also available to give an opinion on disputed issues.  This is sort of like getting the judge’s opinion, without actually going to trial.

Many judges will informally offer an opinion on disputed issues, directly or indirectly, whether the parties or attorneys ask for it.  Technically, judges are not supposed to do this and are supposed to remain “ignorant” of the facts until the trial begins.  But, in the context of a mediated settlement conference, the judge is free to give his or her opinion.

I believe that there is a problem with arbitration, consensual special magistrates, and mediated settlement conferences.  The problem is that in the Twin Cities, the system is too inbred.  Historically, there has been an imaginary wall between judges and lawyers.  This is as it should be.  It is not good for judges and lawyers to be too familiar with each other because subtle and unconscious biases and find their way into the judicial decision making process.

However, lawyers do hang out with other lawyers.  Lawyers refer cases to each other, they work on committees together, they form friendships and get together for drinks after work.  If you are a lawyer in a small shop, it is a bad thing when the lawyer you hire to decide your case has a continued financial interest in selling his services as mediator, in the future, to the larger firm you are up against.  That pecuniary interest will color his or her decision making process.  Psychologists have studied unconscious biases similar to this extensively.  It is a legitimate concern.

Lawyers and judges should be concerned both with actual, real bias, and also with the appearance of bias.  In order for our legal system to work effectively, people have to believe in it.  If they begin to lose their belief that our legal system operates in a manner that is unbiased, our legal system will begin to lose credibility.

I am aware of a circumstance in a metro-area county in which a law firm first acted as an early neutral evaluator on a case.  Then, later on a post-decree matter, the same law firm became involved as attorney for one of the parties.

I am aware of a case in which an early neutral evaluator worked on a case as a neutral, when one of the attorneys was also the evaluator’s attorney in his own divorce case.

In my view, the answer to this problem is twofold.  First, I believe the legislature needs to provide sufficient and adequate funding for the Minnesota district court system.  Presently, it does not.

Secondly, I believe that the court rules need to be modified so that there is more regulation of people who serve as arbitrators, consensual special magistrates and early neutral evaluators.  If a person is going to “act” like a judge, he or she needs to be held to the same ethical standard as a judge.  There are clear rules that govern judges and referees.  There are clear rules that govern lawyers.  There needs to be a set of rules that govern mediators, arbitrators, early neutral evaluators, and consensual special magistrates.  Persons in this class should be required to make full disclosure of their relationships with both law firms involved in the case.  This includes pending cases in which they are serving as attorneys for one party, and pending cases in which they are being paid by the law firm to work as mediator or arbitrator.