Judiciary Interim Committee
Members Present:
Sen. Craig L. Taylor, Chair
Sen. David L. Buhler
Sen. Robert C. Steiner
Rep. Patrice M. Arent
Rep. John B. Arrington
Rep. Loretta Baca
Rep. Afton B. Bradshaw
Rep. Katherine M. Bryson
Rep. Keele Johnson
Rep. Tammy J. Rowan
Rep. Glenn L. Way
Members Absent:
Rep. Byron L. Harward, Chair
Sen. Lane Beattie
Sen. Lyle W. Hillyard
Rep. J. W. "Bill" Hickman
Rep. Martin R. Stephens
Staff Present:
Mr. Jerry D. Howe,
Research Analyst
Ms. Esther Chelsea-McCarty,
Associate General Counsel
Ms. Glenda S. Whitney,
Secretary
Note: A list of others present and a copy of materials distributed in the meeting are on file in the Office of Legislative Research and General Counsel.
1. Call to Order and Committee Business - Chair Taylor called the meeting to order at 3:07 p.m. He then explained that the House and Senate Caucuses had ran later than expected. Because of the Special Session, he indicated that the committee's agenda would proceed as follows: the first item, Administrative Enforcement of Civil Fines and Penalties will be postponed, the committee will discuss item two, Alternative Dispute Resolution, and then proceed as time permits.
MOTION: Rep. Arrington moved to approve the minutes of the November 29, April 23, and May 21, 1997 meetings. The motion passed unanimously with Rep. Rowan absent for the vote.
2. Administrative Enforcement of Civil Fines and Penalties
Postponed.
3. Alternative Dispute Resolution
Ms. Emma Chacon, Director, Office of Recovery Services (ORS), said that ORS endorses a study of alternative dispute resolutions (ADR), especially to modify child support orders. During the last General Session, Ms. Chacon explained that ORS supported the creation of a task force to examine this issue in depth. She explained that an expedited modification process could save substantial amounts of time, and help ORS become more efficient in collecting owed support for children.
Mr. Billy L. Walker, Division Chief for the Child and Family Support Division of the Attorney General's Office, Office of Recovery Services, supported a study of alternative dispute resolution in cases involving modification of divorce decrees. He explained that mediation usually provides non-binding solutions, and that arbitration can be either binding or non-binding. When making modifications to court orders in divorce, he suggested a legally binding process. The process for ADR, he said, needs to be quicker than the current court process, it should be legally binding, needs to receive sworn testimony, and have subpoena powers.
Rep. Arent asked if other states had taken this course and what their success rate had been? Ms. Chacon responded that some states have implemented an administrative process to modify judicial orders and others have implemented family courts. Mr. Walker added that ADR may not be the only solution and recognized the need to look at other methods, such as family court.
Ms. Diane Hamilton, Director of ADR, Administrative Office of the Courts, distributed a handout, "Mediation Programs in the Utah State Court System" and presented an overview of the following mediation programs:
. Court-Annexed ADR Program
. Landlord-Tenant Mediation
. Juvenile Court Mediation Program
. Visitation Mediation Program
Ms. Hamilton explained that mediation is an assisted negotiation process where the parties use a neutral third party to help settle their dispute. The mediator is not the decision maker. In arbitration, she said, the parties empower a neutral third party to make a decision in the same way that a judge would make a decision, although an arbitrator is a non-judicial officer. She said that mediation and arbitration can be voluntary or ordered by the court.
Ms. Hamilton informed the committee of the domestic mediation program. She spoke in support of using ADR in divorce modifications. However, she expressed concern with individual programs designed for a limited, specific purpose. She suggested looking at domestic relations as a whole and develop an ADR program for the big picture. She pointed out that a comprehensive all-in-one domestic mediation program would be more beneficial.
Chair Taylor asked Mr. Mark Jones, Administrative Office of the Courts, to brief the committee on the status of family court. Mr. Jones explained that the judicial counsel asked that the issue of family court be postponed until court consolidation is completed because it was agreed that too many changes at once could be problematic.
Ms. Marci Keck, Mediator, Accord Mediation, distributed a handout, "Judiciary Interim Committee - Divorce Modification Mediation." Ms. Keck explained that her practice included all
aspects of the process from the pre-separation
, original divorce, child custody, property division, and support issues. Ms. Keck said that mediation works when clients are ready to settle. She
referred to the handout that identifies when cases are appropriate for mediation and when they are
not. She emphasized that mediation is a process that enables two people to talk through their issues and try to resolve them before surrendering the process to a judge. If people are not capable of
doing this she said, then the case is not appropriate for mediation.
Chair Taylor asked what the committee could do to help encourage ADR. Ms Keck said the divorce lawyers could help clients understand the dynamics of divorce and what the legal
system can and cannot do. The reality is that no one can change another person's psychological
state. It takes the attorney to explain that a judge will not tell them that they are right and their
spouse is wrong. She also noted that the Cohabitant Abuse Act is problematic because it favors
the party who files first in temporary custody issues.
Ms. Hamilton explained that people are cultured to participate in the adversarial system and when it comes time to get a divorce people expect there is going to be a fight. She said that
by changing the judicial system and the expectations of the public, people will need to participate
in their own resolutions. She added that as mandatory ADR requirements are created, the notion
that divorce can be handled without the acrimony will become common.
Chair Taylor queried whether the waiting period was too long and if "irreconcilable differences" should be abandoned? Ms. Keck responded that she was not aware of any studies that indicate that the waiting period has anything to do with whether or not people get divorced. It
only has to do with how long they stay in the process.
She explained that when starting her practice irreconcilable differences was not a ground for divorce, but mental cruelty was, so many
people claimed mental cruelty. She observed, that people need to work harder at their marriages.
There are times, she said, when people need a divorce. Her concern about lengthening the waiting
period is expense to clients, and the situation of domestic violence.
Ms. Gerta Rock, Citizen, agreed with the mediation process. She expressed concern that
divorcing parents use their children to meet their individual objectives without concern for the
children's needs.
Chair Taylor asked for recommendations from the committee.
Rep. Arent suggested looking at the big picture. Chair Taylor said the committee could
develop a piece of legislation or look to create a task force. Rep. Way pointed out that the
Judiciary Interim Committee could do the same work as a task force.
Chair Taylor suggested getting a group together in assisting with ideas. He asked for participation from those who testified at the meeting, the courts, and the family law section of the
bar, and staff to produce recommendations for future bill drafting. The committee concluded that
the recommendations from this group would be considered at another meeting.
4. Office of Recovery Services and Noncustodial Parents
Postponed.
5.
Evaluation Criteria for the Selection of Judicial Nominees
Postponed.
6.
Adjournment
MOTION: Rep. Way moved to adjourn the meeting at 4:00 p.m. The motion passed unanimously.
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