Why Create ERP?
In family law cases, the traditional adversarial process often increases hostility and fosters long-term distrust between parties by encouraging them to dredge through the other side’s past misdeeds to assign blame or predict future behavior. Setting first appearances months out from filing pleadings can cause anxiety, stress, high emotions, and reactive behavior that necessitates substantial judicial involvement, including expedited hearings and motion practice.
Prolonging the parties’ interaction with each other and the court system is particularly problematic in family law cases involving SRLs. Reliving grievances compromises the ability to see beyond the present conflict and remain open and receptive to new possibilities. Even a perceived victory can come at a high emotional cost that can limit the parties’ motivation to follow through and land them back in court on enforcement motions. ERP professionals work to ensure a durable, fair, and impartial result, while helping parents and spouses shift focus from the past to their present and future responsibilities.
In the Alaska system, ERP began in 2009, when Anchorage Superior Court Judge Stephanie Joannides, inspired by her work presiding over problem-solving drug courts, adopted a process to streamline management of her family law cases with SRLs. Like many states, Alaska has a high rate of SRLs in family cases, ranging from 40 to 80 percent, depending on court location. Judge Joannides partnered with author Stacey Marz, then Director of the Family Law Self-Help Center and current Administrative Director of the Alaska Court System, to create ERP to manage qualifying SRL divorce and custody cases.
Most issues in family law cases are practical in nature and can be resolved through a problem-solving approach; only the rare case calls for first impression legal analysis. The ERP system anticipated that early intervention in the case process and the help of legal professionals would encourage parties to settle their issues rather than endure a protracted court trial. The result would be faster resolutions in which the parties created their own solutions—after benefiting from legal advice, mediation, or a settlement conference—and a reduced workload for trial judges and staff. Thirteen years and nearly 3,000 cases later, ERP continues to serve as a national model for court case flow management, winning the 2021 Irwin Cantor Innovative Program Award from the Association of Family and Conciliation Courts.
How it Works
In the ERP system, six to nine divorce and custody cases are calendared for the same hearing block a few weeks after the pleadings are filed. ERP follows a simplified process: triage; assist; and hearing. The process minimizes time from case filing to disposition and the number of court staff needed to process the file. The ERP Coordinator, coauthor Loren Hildebrandt, receives domestic relations cases with two SRLs to screen about one to three days after an answer is filed. ERP follows a tailored approach to triaging cases with two-level screening. Level 1 screening assumes that all cases would benefit from participation and then looks for reasons to exclude a case. If the case is included, Level 2 screening determines the optimal legal resource to help the parties resolve the issues—volunteer unbundled attorneys, mediator, or settlement judge.
Level 1 screening starts after the court receives the answer to a complaint. This ensures that both parties intend to participate in the case, which is necessary to reach an agreement. The screener reviews the court file, which typically provides information about the marital property and debt in a divorce and about the parties’ positions on parenting plans for children, if any. The screener also reviews each party’s individual court case histories as reflected in Alaska’s electronic court case management system.
Most often, the coordinator declines cases not because of conflict between the parties, but due to a legal problem: a jurisdictional challenge; possible statutory presumption against custody for domestic violence perpetrators; need for dueling expert testimony (especially if the parties own a business); another relevant case that will impact the divorce/custody outcome (such as an open child in need of aid or criminal domestic violence case); or a non-parent requesting child custody. ERP accepts about 55 percent of all screened cases.
The parties’ stated positions, even if opposing, rarely influence whether the program accepts a case. ERP routinely accepts and resolves challenging contested cases in which the parties do not agree on any issue, but a workable solution seems clear. For example, one recently settled custody case involved a five-year-old girl with parents who disagreed on decision-making and parenting time. The mother requested sole legal and primary physical custody, and the father requested joint legal and shared physical custody. The mother also wanted the father to complete drug and alcohol treatment before having unsupervised time with the child. The court history screen revealed that the father had convictions in the past five years for felony DUI and resisting arrest. The mother did not have a criminal record. The pleadings noted that the father currently had infrequent contact with the child at the mother’s discretion.
The coordinator identified the case as suitable for ERP because it appeared straightforward to resolve with a reintroduction period; graduated increases in parenting time to the father, starting with supervised visits and progressing to overnights upon meeting sobriety benchmarks; and a safety plan to address alcohol and drug abuse. The coordinator assigned the case to a mediator with a background in counseling individuals with substance abuse issues. The coordinator kept the case on the ERP calendar even when the father was charged with a second felony DUI between scheduling and the hearing date, because the father was released on bail and the new charge would not change the basic framework of the potential solution.
The case settled in one hearing with a parenting plan that tracked the likely trial outcome the coordinator identified in screening, including joint legal custody and graduated increases in the father’s parenting time. The parents and their daughter thereby avoided a delay of several months simmering in indeterminacy—with the mother limiting contact and the father insisting on visits that could be unsafe for the child.
Level 2 screening determines the appropriate legal resource for the individual case: two volunteer unbundled attorneys, a mediator, or a settlement judge. Assignment depends on several considerations, including the issues involved and whether the parties’ positions fall within the realistic range of possible outcomes given the facts of the case and the legal framework. If the staff attorney finds that the parties could use legal advice because one or both parties’ positions are extreme or unrealistic given the legal framework, there is known or alleged domestic violence, or a party seems particularly indecisive, the court assigns a free volunteer unbundled attorney provided through Alaska Legal Services to each litigant for the hearing. Cases involving parties with children are often assigned a mediator if the parties could benefit from talking through the details of a parenting plan or need assistance communicating. Some cases are assigned directly to the settlement judge if there is nothing in dispute or if relatively few or only simple issues need to be decided.
After a case is selected for ERP and scheduled for the hearing, the rubber meets the road with the attorney coordinator’s involvement with the parties. The coordinator first sends the parties a detailed scheduling notice explaining the purpose of the hearing and provides their direct phone number and email address for the parties to touch base with any questions. The coordinator follows up by calling every party (or emailing when parties do not answer the phone or do not provide their phone numbers) before the ERP hearing to explain how to prepare and what to expect. This prehearing contact adds significant value by guiding parties into the mindset to resolve disputes: calming fears; dispelling misconceptions; and demystifying the process.
The coordinator also discusses any issues identified in staging the case for the judge, volunteer attorneys, or mediator, such as insufficient documentation to calculate child support (the coordinator calculates support in advance based on the best available information), or vague information on property and debt to divide. The goal is to avoid surprises on hearing day. If the parties reach an agreement, the settlement judge makes sure it meets the legal requirements and the parties memorialize it on the record. During the hearing, the coordinator drafts the final orders based on the agreement the judge signs at the hearing’s conclusion. The coordinator then distributes the final orders to the parties in the courtroom (if they are physically present) or mails them the next day if parties participated remotely.
Advocating for yourself in a family law case can feel like trying to operate a roller coaster while riding it. The prospect of an expedited first hearing where the parties can settle with the help of legal professionals tends to reduce anxiety. But sometimes ERP simply replaces trial as an object of dread in the minds of wary participants. Thus, to engage each participant at their present level of mental and emotional preparedness, ERP uses a flexible approach honed through experience managing thousands of cases. Additionally, ERP is a party-propelled process. The court creates the conditions for settlement to occur, but does not pressure the parties about the timing or outcome. Allowing this much freedom has spurred unexpected learning opportunities over the program’s life.
First, we note that we receive a variety of responses from people upon learning that the court scheduled them for ERP. ERP scheduling notices often surprise parties expecting a lengthy process. Parties sometimes call the same day they receive the notice with questions about how to prepare, what to bring, and what will happen if the other party does not appear. Some participants do not realize that they are missing key information needed to finalize an existing agreement or that they submitted an unenforceable parenting plan. The coordinator responds with neutral information about what judges expect in order to finalize a case at an ERP hearing and reassures parties that any final agreement will be the product of their joint and thoughtful consideration. The coordinator also encourages parties to plan ahead for issues such as division of retirement accounts or sale of a marital home and to bring only the materials they will need to reach a settlement. The coordinator informs parties that while participation is voluntary, failures to appear are rare.
In the two percent of cases in which parties fail to appear, the ERP judge gives the appearing party the option to try again at a later ERP hearing or schedule a trial-setting conference with the assigned judge. The availability of a neutral attorney coordinator to provide information and perspective tends to have a calming influence, and although the parties have the coordinator’s direct number, they rarely call more than once between receiving the scheduling notice and the hearing day.
Second, over the program’s life, we have identified a number of unanticipated issues that can serve as barriers to resolution at the parties’ first scheduled ERP hearing. For instance, issues can arise when the parties do not provide property and debt information with their complaint and answer, do not understand the discovery process, and are uncomfortable proceeding based solely on the other side’s testimony about assets and debts. Normally, the ERP coordinator flags these concerns to discuss in prehearing calls or emails, but sometimes the parties do not respond to court contacts during the prehearing process. In such cases, the ERP judge explains discovery, provides a plain language form the parties can complete to comply with the discovery rule, and offers the option to schedule a second ERP hearing in 45 to 60 days. Volunteer attorneys often return to assist the parties at the second hearing, with the understanding they do not represent the parties in the meantime. Even parties who choose not to participate in a second ERP hearing can leave with interim orders and a better understanding of likely outcomes.
Third, in coordinating ERP, we have learned not to underestimate family law parties’ ability to solve their own problems when given neutral legal information about the variables they must address to finalize their case. ERP never requires parties to communicate with each other, although it is suggested the parties talk about possible solutions before the hearing, unless there is domestic violence, or the relationship is so toxic that talking will be problematic. With surprising frequency, between the ERP coordinator’s prehearing call and the hearing date, parties will collaborate well enough to resolve issues on their own.
In one recent example of a contested case, parties without minor children were divorcing after a twelve-year marriage. The parties had unequal retirement accounts that favored the husband and a home in the husband’s name. They disagreed at first about who should retain the marital home because the wife could not afford to refinance it. The prehearing calls to the parties explained basic information available on the court’s website about Alaska law on property division and emphasized that the judge would ask questions about whether any agreement was fair and equitable, and knowing and voluntary. The coordinator offered the parties volunteer attorneys, but they declined.
The parties reached an agreement in which the wife remained in the marital home and retained the home’s equity and the husband kept his retirement. They crafted a creative provision where the home would stay in the husband’s name but the wife would make the mortgage payments and keep any equity upon sale. ERP welcomes such party-produced solutions because it exists to set the stage for early settlement and encourages problem-solving.
Lastly, sometimes factors beyond the court’s control can help gain unintended efficiencies. ERP did not skip a beat during the pandemic, maintaining case volume within the range of its pre-pandemic levels by pivoting to remote delivery of services. Mediations moved to Zoom, and our mediators still prefer that method, although we now offer the option of in-person mediation when the parties and mediator all live in the same community.
Further, ERP’s initial blueprint called for all mediations and volunteer attorney negotiations to occur in-person on the day of the hearing. Since everyone mediated on the day of ERP and finished around the same time, a three-hour ERP hearing block often incorporated long stretches of dead time followed by periods of intense activity at the end of the hearing block—with parties, coordinator, and judge staying late to memorialize agreements on record and prepare final paperwork for cases that finished at the buzzer. Remote delivery has helped us better structure ERP hearing blocks. Now about half of the parties mediate in the hours or days before the ERP hearing. This allows the coordinator to schedule the first several cases in half-hour increments, with parties receiving a guaranteed time within the hearing block. This more efficient arrangement helps SRLs complete their cases while missing less work and permits a more orderly and even distribution of ERP hearing time.
Benefits of a Problem-Solving Model
Family law attorneys stand to gain much from practicing ERP principles in evaluating their cases. The traditional trial model can cost too much and take too long. ERP professionals recognize that the parties’ initial positions are not necessarily reliable indicators of what they really want or expect to happen when the case is decided. Some ERP participants report that their positions represent what they think they should request, leaving room to bargain for a more reasonable result. But negotiation and puffery tactics tend to spawn hurt feelings and distrust; honesty and pragmatism lay the groundwork for cooperation and collaborative problem-solving.
ERP professionals see cases through an impartial perspective that helps parties to relax into the moment, consider creative solutions, and release the mutual desire for control that risks freezing them in conflict. The parties stop fixating on the reasons for the dispute and recognize the issues as practical problems to solve (what parenting schedule makes the most sense given the child(ren)’s activities, parents’ jobs, and past history? what is the fairest way to divide the marital property and debt?). This open-mindedness inspires parties to find collaborative and legally appropriate solutions during their first and only court hearing. Notably, volunteer attorneys have shared that they work better together outside of ERP after working together to help their ERP clients resolve issues.
The traditional adversarial model takes months or years to resolve a family law case, often at great emotional and monetary expense. Given that approximately three-quarters of family law cases involve SRLs, access to justice may be improved by using a problem-solving approach in a simplified early-intervention process like Alaska’s Early Resolution Program. Parties and their families reach finality quickly, with all legal issues addressed, and are able to move on with their lives, typically avoiding a court process that might enhance their dispute and elevate personal discord.