Generally, when I say “ICMC”, “FENE”, or “SENE” to clients I am met with a blank stare. These three acronyms are essentially Minnesota courts’ response to the fact that not enough cases are being settled due to the lack of a uniform screening process which results in cases that should not be litigated being litigated (hence taking more of the court’s limited resources). Furthermore, if a case is evaluated early on in the process, there often is a much higher chance of settling the case as opposed to attempting settlement after parties have become engrained in their positions and spent significant amounts of money. Finally, the best results often come from the parties deciding what would work best for their family as opposed to having a judge order what is best for their family.
ICMC (Initial Case Management Conference). The ICMC hearing is scheduled within 30 days of the matter being filed. At this point, parties are not “stuck” in their positions nor have they started filing public documents that highlight the “flaws” of the other party. The ICMC is unlike most family law hearings. The court is not going to order that the child spend 50 percent of the time with dad. It is not going to order that the parties share custody. Nor, is it going to order that one party pays the other party spousal support. (That is, unless, the parties were to agree to these things.) Instead, the hearing accomplishes the following:
· Allows for the judge to get to know the parties (in many but not all counties the judge will be assigned for the entire duration of your case) and vice versa.
· Discuss the unique issues of your case.
· Provides an overview of the family law process to determine the next appropriate step for your case.
· Affords the parties an opportunity to engage in settlement.
· Educates parties on the different types of Alternative Dispute Resolution ADR (including Financial Early Mediation-FENE and Social Early Mediation-SENE).
Judges often attend these hearings without their robes and sometimes will speak from somewhere other than the bench. Parties are not sworn in; nor, is there a court reporter. It is a very informal hearing.
FENE (Financial Early Neutral Evaluation) and SENE (Social Early Neutral Evaluation). Under the umbrella of ADR are the voluntary and confidential[i] processes of FENE and SENE. The only differences between the two is what they pertain to (FENE relates to financial issues such as support, spousal support, debt, and property and SENE relates to social issues such as custody and parenting time) and how many evaluators are involved (FENE has one and SENE generally has one man and one woman). Parties, with the aid of their lawyers, choose the evaluator(s) often from a list of qualified individuals that the court provides. Each person on the list has a background in finances, therapy, mediation, and/or law and has undergone training specific to ENE. After the parties agree on the evaluator(s), the court issues an order which sets forth the mediator(s), how much each party pays (generally split and based on the hourly rate of your lawyer), and a deadline for completing the process.
Once the evaluator(s) obtain the order, they request information from the parties. For example, if you are seeking spousal maintenance, often you will have to provide a budget (during the marriage and currently), income documents, and bank records. The evaluator(s) then sets up a meeting with the parties and lawyers to start the process.
The meeting will generally occur at the office of the evaluator(s) or one of the lawyers and is scheduled for between 3-4 hours. The meeting starts with an overview of the process (and in SENE the sharing of photos of the child). At this point, the parties are given an opportunity to provide the evaluator(s) with their point of view. For example, in an SENE, a party would talk about what their parenting role has been, their relationship with the child, and what they are requesting. Your attorney may ask you clarifying questions, but will not be allowed to ask questions of the other party. The evaluator(s) are also allowed to ask the parties any questions that they may have. After each side has been given the opportunity to talk and respond, the evaluator(s) take a break to determine what they think the outcome of the case would be if the case was litigated, based on the law and the assigned judge. That opinion is given to the parties and the parties are allowed to speak with their attorney regarding the opinion. At that point, parties have three choices 1) come to a permanent or temporary agreement regarding all issues, 2) come to a permanent or temporary agreement about some issues, or 3) come to no agreement. If the parties are unable to settle all or any issues, they are then given the opportunity to attempt direct negotiation and settlement with the help of the evaluator(s) who switch roles into more of a mediation position. The evaluator then notifies the court if there was 1) no settlement, 2) partial settlement, or 3) full settlement. If there was partial or full settlement, the attorneys draft an agreement based on the settlement.
While the beginning of a family law matter seems almost informal, it is crucial to have representation at this stage. Prior to the process starting, I counsel clients on what to expect, draft documents and organize information, handle all communications, help clients prepare for the process so as to present the most relevant information, and provide answers to questions that frequently arise. At the SENE/FENE, I help clients evaluate the validity of the opinions, fill in gaps that the evaluator(s) may have missed, and brainstorm counterproposals.
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[i] Both FENE and SENE are confidential processes with limitations. For example, while an SENE provider may not be called as a witness, if the SENE provider is a mandatory reporter and they here that a child is being abused in one or both homes, they are required to report the abuse.