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The ESP Process in New Jersey Divorce Cases – a Call for Uniformity

The vast majority of divorce cases settle by way of an agreement reached between the parties.  Only a small fraction of divorce cases are actually tried and decided by the court.  Over recent years, the judicial system has encouraged the use of complimentary or alternative dispute resolution proceedings, including mediation and/or arbitration, as a means to help the parties settle cases.  Besides the salutary effect of settlements on the overtaxed judicial calendar and resources, the policy favoring the use of consensual agreements to resolve marital controversies is also in recognition that the parties themselves are in the best position to determine how to resolve their disputes as well as to minimize the financial drain on family resources from continual litigation.

Long before the “mediation” of divorce matters, whether privately or under court auspices,  came into vogue, in furtherance of this policy the courts in various counties along with their local bar associations began establishing on a voluntary basis a proceeding which became known as the Early Settlement Program (or “ESP”) to which contested divorce matters were referred.  By 1981 eleven counties had established such ESP programs.  However, since these programs were established on a county by county basis, each county along with their local bar association developed their own processes and procedures as to how their ESP program was conducted.  Common throughout was that the divorce case referred to an ESP would appear before a “panel” of usually two volunteer family law attorneys.  During the panel each party would provide a brief summary of the issues in dispute and their position for settlement.  The panel would them make settlement recommendations. These recommendations were non-binding and the process itself was generally informal and “off-the-record”.  If the case settled the parties could be divorced that day.  If not, the case went back to the contested list awaiting trial.  However, each county set their own ground rules for how the ESP was administered — at what stage of the case it was scheduled, whether any written submissions were required at or in advance of same, calendaring and the number of cases assigned to each panel, the court’s involvement, etc.  One of the earliest proponents of the ESP program was Union County.  I can recall back in the mid-1980’s appearing either as an attorney or a substitute panelist when the ESP was scheduled during  the court’s “lunch hour” and the panels were conducted in a room located in the basement of the courthouse no larger than a closet.  Despite this, the ESP process was unique and was often the first time the parties had their case analyzed by someone neutral and objective.  A certain percentage of cases settled as a consequence of their participation in this program.  The success of these programs became impetus for a Court Rule requiring that all vicinages establish an Early Settlement Program in conjunction with the County Bar Association. R. 5:5-5.  As a result, all counties have had ESP programs for many years now.  Like the earlier volunteer programs, there are some elements common to each county in terms of how these ESPs are administered – they are held at the courthouse; they are scheduled at a point after initial discovery was to be completed and prior to referral to mandatory economic mediation under R. 5:5-6; they are usually heard by a panel of two volunteer matrimonial law attorneys; the panel hearing itself is conducted informally and “off-the-record”; and non-binding settlement recommendations are made.  While over the years, this ESP process has achieved to some level the salutary effect of helping to settle a certain percentage of divorce cases whether directly or as an impetus for further negotiations, the question posed is whether the lack of uniformity by which the ESP program is handled county by county or even panel by panel has negatively affected the program reaching its full potential.

First, each county has their own standards and guidelines as to what stage of the case an ESP should be conducted.  While the Court Rules appear to recognize that divorce cases may fall into different tracks – standard, expedited, priority, or complex – some counties attempt to impose a one size fits all deadline by which all cases must participate in an ESP whether they are truly ready or not. The terms “early” and “settlement” often run counter to each other.  While one of the goals of the ESP program was to establish a mechanism by which divorce cases could explore settlement with minimal use of judicial resources at a stage before having parties incur the time and expense preparing for or appearing at trial,  it is difficult if not impossible to settle the case –  certainly a settlement that is fair, equitable and knowingly entered into – without a sufficient exchange or “discovery” of financial information (income/expenses, assets/liabilities, identification/values).  Forcing a case to an ESP before this occurs effectively makes it a wasted effort.  While not espousing that a tail should wag the dog, i.e. that the parties dictate when an ESP is conducted, regular and individualized case management should be implemented and would better assure that an ESP is only scheduled when most meaningful and effective.  For some “simple” cases this might be in a matter of weeks.  For the more “complex” cases, it may be a number of months or even years.  Early is relative.  A more uniform approach statewide both in regards to case management and the scheduling of matters for ESP would only improve the efficacy of the program.

Another example of a lack of uniformity county by county is with regard to the parties’ submission of written materials for use at the ESP.  R. 5:5-5 contemplates that parties provide a Case Information Statement or “other required information” for consideration by the Panel.  However, each county seems to have their own rules governing the what, how or when of such submissions.  Some have specific forms while others are more general about what is required.  Some require them to be sent to the panelists directly, others to both the panelists and the court, still others just to the court.  Some require the submissions be served a week or more in advance, while others allow the parties to bring it on the ESP date, if at all.  I submit that the nature and form of these submissions should be more uniform.  They should be detailed and specific enough to enable a panelist to understand the circumstances of the case and the basis for each parties’ positions, without being so voluminous that it becomes burdensome for the panelists to read and digest given the multitude of cases often assigned that day.  Further, these submissions should be provided to the panelists in advance of the scheduled ESP date.  In order for an ESP to be most effective, the panelists should be afforded sufficient time to review the case ahead of time.  Expecting the panel to grasp a case by getting submissions thrown at them the morning of the ESP or hearing about it for the first time from the attorney’s verbal presentations is unrealistic and unfair.  The same is true for opposing counsel.  Expecting panelists to make reasonable recommendations on the fly without an opportunity for due deliberation devalues the entire process.  I also submit that ESP submissions should only go to the panelists and opposing counsel and not be filed with the court.  The purpose of an ESP is to foster settlement.  Most ESP submissions require parties to set forth their settlement positions on the various disputed issues.  If such submissions end up in the court’s files, doesn’t the risk exist, whether real or perceived, that the information in them, including settlement positions, could potentially be gleaned by the court?  Wouldn’t a party be less inclined to set forth their true position for settlement if that risk existed although settlement offers and negotiations are not supposed to be admissible or evidential?  Evidence Rule 408.  Further, while many view an ESP as a somewhat quasi-mediation process, in reality, there is nothing in the Court Rules providing for the confidentiality of this process unlike mediation proceedings themselves under R, 5:5-6 or R. 1:40.  What about the ESP panelist’s recommendations?  While the panelists make clear at the outset that their recommendations are non-binding, can the substance of these recommendations be disclosed to the court?  Most would say no as being a product of inadmissible settlement offers or negotiations; however, there are some counties which require panelists to make a report of their recommendations.  Amending the Rules and/or establishing uniform procedures defining the confidentiality of the ESP process would ameliorate these problems or concerns.

The selection of panelists and the composition of panels varies from county to county. Most counties compile a list of prospective panelists, local family law attorneys who volunteer to serve.  Many, such as Union County, have designated panels along with an advanced schedule on which dates those panels will be serving.  Most panelists are conscientious about serving on their assigned date or arranging for coverage in the event of conflict.  However, there are some counties where it appears that attorneys are often being rounded up on the fly the morning of the ESP to serve as panelists.  Besides the fact that it would be impossible for them to receive, let alone review, any submissions in advance, how attentive or effective can that recruited panelist be particularly if they have their own matters to attend to as well?

For more than thirty years the ESP program has been a valuable tool in helping people settle their divorce cases.  With the advent of mandatory economic mediation, whether it remains a useful process or simply an unnecessary duplication is a topic for another day.  However, if the ESP process is to continue and is to live up to its full potential and be even more effective in fostering settlements, the courts should adopt uniform standards throughout the state of how this program is administered, making them more efficient and productive for the litigants, panelists and the court alike.