Are You Facilitating the Creation of a Post-Divorce Functional or Dysfunctional Family?
Like it or not, if there are children of the relationship (regardless of their age), the family still exists after the relationship ends. The manner in which you end a relationship determines whether your family will be functional or dysfunctional from that day forward.
Abraham Lincoln’s Notes for a Law Lecture dated July 1, 1850, provide in pertinent part as follows: “Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough. Never stir up litigation. A worse man can scarcely be found than one who does this…. A moral tone ought to be infused into the profession which should drive such men out of it….” (Lincoln, 1953) I would like to point out that, among other things, Abraham Lincoln specialized in family law.
In 1984, Warren Berger, then Chief Justice of the United States Supreme Court, while speaking about the American legal system to members of the American Bar Association, said, “Our system is too costly, too painful, too destructive, too inefficient for a truly civilized people. To rely on the adversary process as the principal means of resolving conflicting claims is a mistake that must be corrected…. The obligation of our profession is, or has long been thought to be, to serve as healers of human conflicts.” (Burger, 1984)
More recently, Supreme Court Justice Sandra Day O’Connor made the following statement: “The courts of this country should not be the places where resolution of disputes begins. They should be the places where the disputes end after alternative methods of resolving disputes have been considered and tried.” (Alternative Dispute Resolution Section of the State Bar of Texas, 2006)
On November 25, 2011, David B. Saxe, an Associate Justice of the New York Supreme Court wrote, “If matrimonial lawyers focus on the larger picture, they might recognize they stand to gain more in the long run from the good will and recommendations of satisfied clients following successful mediation, than from the backlash of dissatisfaction in the wake of a typical unpleasant divorce.” (Saxe, 2011)
A “Stress Assessment” based upon the Homes and Rahe Life Change score established in the late 1960s or early 1970s is still validated by most mental health experts. The death of a spouse or child is the highest level of stress that one can experience. Approximately 75 percent of couples who lose a child to death ultimately divorce because of the way in which they handle the stress. When someone loses a spouse to death, they are unable to act out against that spouse for leaving the marriage because the spouse is dead. Almost all experts agree that one should avoid making any major decisions within the first year following the death of a spouse. The stress of a divorce comes second only to the death of a spouse. Moreover, when it comes to divorce, certain aspects of loss become slightly magnified. In other words, the manner in which people process and manage the stress and loss caused by a divorce is more destructive to themselves and others because they are able to act out against the other person who was involved in that relationship. Additionally, I would like to point out that marital separation falls just below divorce in the stress assessment. What is disappointing to me is that nothing has been done to alter the way in which people are encouraged to handle the grief resulting from the death of a marriage (or a non-marital relationship involving children).
How often does a friend or family member refer a person going through a divorce to a support group or to a mental health care professional to help the person cope with the loss and grief caused by the death of their marriage? Instead, we encourage people going through such losses to handle their loss and grief in destructive ways by going to war with each other in the courtroom (the family law court).
The assumption that because a client is an adult, that he or he is thinking clearly and wants what they say they want or think they want is a very big assumption. We all need to be aware of our personal prejudices, biases, values, beliefs and assumptions that we bring to every interview with a client.
Studies over the past 30 year or more have found that I.Q. levels can decrease by 20 percent (Thompson, 2005) from low stress to high stress and this applies to everyone from children to corporate leaders. When a person’s stress level is sufficiently elevated, their ability to fully and effectively use their cognitive ability and emotional intelligence in tandem to make timely and effective decisions is significantly impaired. If the elevated stress becomes high enough for a long enough period of time, however, deleterious effects will follow regarding the “higher” level thinking processes, e.g., logic, analysis, decision making, etc.—a significant portion of the IQ. Too much stress results in a drop in cognitive ability (including IQ) and an oversensitive heightened state of emotion. A person loses a significant amount of ability to “control” their emotions, thus becoming temporarily less emotionally intelligent! Stress reduces a person’s ability to fully access their IQ and emotional intelligence abilities. This results in displays of some or all of a characteristic set of deleterious behaviors, such as: not listening; over-analyzing; stops making decisions; makes “emotional” decisions; “flip-flops”; makes reactive, short-term, fear-based or anger-facilitated decisions; acting in such a way as to satisfy the minimum requirements for achieving a particular result; hedonistic; or the failure to notice something in plain sight.
Earlier, I pointed out that “almost all experts agree that one should avoid making any major decisions within the first year following the death of a spouse.” The reason for this advice is that the temporary decrease in one’s IQ level lasts for approximately one year when the person has suffered such a great loss. In a divorce, the temporary decease in one’s IQ level lasts until approximately 1 ½ years after the divorce has been finalized (Divorce takes 18 months to get over, 2009).
If our client’s “effective decisions” are “significantly impaired”, are we acting responsibly when we make statements such as this: “I consider my adult clients to be independent adult moral actors, and I do NOT consider it to be my job to substitute my moral judgment, or my personal views as to the “savability” of their relationships, for theirs.”? Do we have an obligation to our clients to make sure that they really want what they are telling us they want? As family law attorneys, we are in a different position than our colleagues in other fields of law because the stress that our clients are under is greater than the stress that clients our colleagues deal with are under. Thus, the “effective decisions” our clients make may very well be “significantly impaired.” This is true whether the “effective decision” is to divorce or the manner in which our clients decide to proceed with the divorce (in terms of the process and the constructive or destructive nature of the proceeding). Therefore, do we as family law practitioners have a higher ethical duty than attorneys in any and all other fields of law? Should our ethical obligation be to ensure that our clients really want what they say that they want? Do we as family law attorneys respect the importance of relationships and family or are we just interested in our clients as a means of making our mortgage payments?
I am by no means advocating for the elimination of no-fault divorce. While divorce rates did rise as a result of no-fault divorce, domestic violence rates fell by approximately 20 to 30 percent and wives’ suicide rate fell by 8 to 13 percent (Vedantam, 2011).
However, if the attorney does not inquire about the reasons the client is seeking a divorce, how will the attorney know if the client really wants a divorce and/or whether the marriage can be saved? Remember that marital separation falls just below divorce in the stress assessment.
I recently took part in a discussion of family law on the Los Angeles County Bar Association’s Listserv. After one lawyer pointed out that “the code of ethics requires attorneys to advise their clients about mediation possibilities,” a number of others chimed in with reason after reason for opposing the use of mediation in family law cases. Eventually I spoke up. “Why is it that mediation and collaborative divorce is very successful in other countries (such as the UK), and in some states in the US, but the family law litigation community here seems to have a completely different impression? Is it that people in Los Angeles somehow differ from people everywhere else?” Disappointingly–but not surprisingly–no one even acknowledged my question.
Within the past year, I had the pleasure of hearing Tobias Desjardins, the Director & Founder (Desjardins, 2011) of the International Center for Peaceful Shared Custody, speak. During his talk, he mentioned that families are frequently referred to him by judicial officers when a child becomes suicidal as a result of their parents protracted custody battle. He told us that by the time he sees these families, both parents have worked with several different attorneys and that they have consistently told him that the first time they learned about mediation or collaborative divorce was through him. This reality is not only indicative of unethical conduct by family law attorneys, but it is just plain tragic.
In 1996, the Australian government reformed its family law system in an effort to make it “more responsive to families in need and by making it simpler to negotiate appropriate outcomes. It accomplished this by shifting “the focus from litigation as the first choice for the resolution of family law disputes.” (Australian Government Attorney-General’s Department, 2000) Since then, mediation has become the “primary dispute resolution in family law.” The Australian government recognized that “litigation is usually slow, expensive and by its nature, adversarial.” The government found that “in family law matters, such behavior may make it difficult for the child to maintain an ongoing relationship with both parents and for parents to maintain their ongoing responsibilities.” But when people are able to settle matters for themselves, the arrangements they make are far more likely to suit all parties, they will have been reached more quickly and will cost less than if they are determined in Court.”
Australia has transplanted troubled families away from courts and into 65 Family Responsibility Centres in cities across the country. Parents or spouses who visit the centre sit first with an adviser, who hears their story, and then directs them to the services needed – mediation, collaborative divorce, addiction treatment, financial advice or parenting support. I would like to point out that the kind of mediation offered there seems to be family systems and service based, meaning that there are value-added inputs being offered to the families, not merely brokering of deals.
Since its initial reform, the Australian government has continued making improvements to the family law system. Currently, whether the case involves parenting issues, financial issues or both, “each prospective party to a case in the Family Court of Australia is required to make a genuine effort to resolve the dispute before starting a case.” Moreover, “unless there are good reasons for not doing so, all parties are expected to have followed these pre‑action procedures before filing an application to start a case” and “there may be serious consequences, including costs penalties, for non‑compliance with these requirements.”
On April 6, 2011, England and Wales followed Australia’s lead by making similar reforms to their family law systems. “Divorcing couples are “referred to mediation [for child custody and/or financial issues] to sort out most disputes before they are allowed to use the courts.” (Divorcing couples to go through mediation before court, 2011) The British government announced that its aim was to “radically reform the system and encourage people to take advantage of the most appropriate sources of help, advice or routes to resolution – which will not always involve the expense of lawyers or courts.” The Justice Minister said, mediation was “a quicker, cheaper and more amicable alternative” to the over-worked family courts…. He also said that “Nearly every time I ask someone if their stressful divorce battle through the courts was worth it, their answer is ‘no’…. It gives people the opportunity to take their own futures in their own hands.” According to the Justice Minister, “programme statistics suggested that more than two-thirds of couples who took up mediation were ‘satisfied with the results.'”
Mediation is the presumptive first step for almost all couples in Quebec (Anderssen, 2011).
Several jurisdictions in the United States now have a “triage” judge who screens cases and diverts them away from the court. In Connecticut, for instance, a triage system doesn’t simply divert cases that don’t need a court hearing – couples are directed to financial counseling or parenting courses.
In North Carolina, a “statute mandates the courts to establish a ‘system of settlement events’ for family law matters. North Carolina is the first state to have a comprehensive domestic relations arbitration act, a collaborative divorce statute, and mandatory mediation rules.” (Lueck, Dragging Our Family Courts into the 21st Century, 2008)
“The Utah Legislature passed a mandatory mediation statute effective May 1, 2005. The case statistics available to date indicate two thirds full settlements and 12-14% partial settlements for an 80% total. Court caseloads have been reduced, the stress levels of litigants and lawyers have been reduced, the fees for divorce have been significantly reduced, and the satisfaction level of the parties is higher than for litigation.” (Lueck, 2008)
On November 23, 2011, British Columbia passed The New Family Law Act. (Ministry of Justice – Province of British Columbia, 2011) Overall, the New Act structures the law so that court is not the implied starting point to resolve family disputes. Parents will be encouraged to work together to resolve their differences and use family mediation or other assistance where appropriate, taking into account their circumstances and whether there is family violence. In other words, it changes the default process. It seeks to ensure that parents have tried, through mediation, to rectify their differences. The government acknowledged that a marriage break down is often a very emotional time and sometimes an adversarial process that can even lead to domestic violence. It was stated, “I do not think anyone can argue or dispute the massive amount of destruction to assets and children that has occurred in our adversarial system. The courts have been needlessly backlogged with mindless arguments and position bargaining about issues that simply do not belong in front of our Judges. Couples using our expensive courtroom resources to fight their personal battles must come to an end. If we can save one child from the tragic outcome created because of our system and if we can start to empower children of divorce to move through their parents’ divorce without emotional harm – then we can start to change the way divorce happens.” (Stewart, 2011) The New Family Law Act is centered on the best interests of the child. It expressly states that, when making decisions involving the child, the best interests of the child should be the only consideration. The Act describes parents’ roles and responsibilities in less adversarial terms. Instead of referring to the ill-defined terms of custody and access, the act refers to guardianship, which is described in terms of parental responsibilities that allow for a more customized parenting arrangement. Parents who have lived together after their child was born will be the child’s guardians until they agree or the court orders otherwise. Under the Act, both parents retain guardianship of their children after separation unless they agree, or the court orders, differently. In other words, there is a presumption of equal parenting at the outset. The court may make contact orders to allocate time with a child to a non-guardian, such as a grandparent, where it is appropriate.
The parties to a family law dispute must comply with the requirements set out in the regulations respecting mandatory family dispute resolution and prescribed procedures.
On October 23, 2011, I wrote an article titled “What Triggers Violence in Custody Battles in the United States.” (Baer, 2011) In that article, I explained that stress is a pain and a pressure that seeks relief, and sometimes, tragically, release from the pressure is expressed in violence. The American Bar Association acknowledges, for example, that in child custody battles, reports of domestic violence are common, and by some estimates as many as 50% of child custody disputes involve domestic violence. (American Bar Association Commission on Domestic Violence, 2006) In one month alone, this past October, three tragic incidents made headlines:
- In Dallas, after a court awarded a father sole custody of his 7 year old boy, the mother shot her son and herself, even as her estranged husband waited outside with police. (Trahan, 2011)
- In New York stateState, a successful attorney who was reportedly distraught at the prospect of losing custody of his children in an up-coming trial, killed his wife and his children before turning his gun on himself. (Schweber, 2011)
- In Seal Beach, California, Scott Dekraai–a despondent husband who had just faced a court imposed delay in his bid to obtain full custody of his son, blasted into the work place of his estranged wife, killing her and seven others. (CBS News, 2011)
While it is facile to argue that such instances can be attributed to the essentially unbalanced state of the individuals, this argument avoids dealing with the fact that the legal system aggravates the possibility that fragile people under enormous stress will lose control. For example, in the Seal Beach situation, Dekraai had just come from a hearing that would have forced him to wait an additional two months for a ruling. Continuances and other delays are typically considered “benign”–but are they, really? Forcing suffering people to endure frustrated expectations and prolonged ambiguity, as the family law system routinely does, is unquestionably–if passively–malignant, and can be a real trigger for violent behavior.
Unfortunately, in the United States, this reality is considered merely my opinion. Yet, in British Columbia, it was a factor taken into account in enacting the New Family Law Act. (Barisoff, 2011)
In her book titled “The Good Karma Divorce” (Lowrance, 2010), Judge Michele Lowrance, a domestic relations judge in the Circuit Court of Illinois, wrote “The court system was not built to house these emotions, and attorneys are not trained to reduce this kind of suffering. Divorcing people expect relief far beyond what the legal realm can provide from their attorneys and the courts, and they often end up feeling like members of a powerless, unprotected class.”
Last year, I had the pleasure of hearing Judge Michele Lowrance speak. During her plenary speech (Lowrance, Collaboration Without Borders: exanding our horizons, 2011), Judge Lowrance mentioned that mediation addresses many of the flaws caused by litigating family law matters. However, what it does not address is the emotional suffering that the couple is experiencing. She said that Collaborative Divorce seems to be the best solution because it picks up where mediation leaves off and it is a very good and holistic approach.
Regardless, unless and until the default process for handling divorce and other family law matters is changed from litigation to some form or forms of consensual dispute resolution, it only takes one person to sink the ship and thus destroy the family. Parents who end up in court are forced into an adversary system that knows little about child development and less about the best interests of children or the family unit. In sum, the adversary system destroys families. No one can expect a couple to effectively parent after being exposed to the court process.
Outcomes are often determined by the way in which the “game” is designed. For example, there are some countries in which 98-100% of the citizens are organ donors, other countries that are the reverse, and there is a large void between these two extremes. Most people believe that this is the result of cultural and value differences. WRONG! (Ariely, 2011)
In those countries in which 98-100% of the citizens are organ donors, the “default” is that all citizens are organ donors. They are then sent an “opt out” letter. If they bother to read the letter, check the box stating otherwise and return it, they will not be organ donors. In those countries where almost none of the citizens are organ donors, the “default” is that none of the citizens are organ donors unless they bother to read the letter, check the box stating otherwise and return it.
In the United States, the “default” in the legal system is litigation and court. In order to avoid the default mechanism, both spouses must agree to handle their matter outside the legal system — through mediation, collaborative divorce, or some other form of consensual dispute resolution. They must also agree on the particular process and the professionals involved. Moreover, they must both actually remain in some sort of consensual dispute resolution process until their issues have been resolved. Otherwise, they revert to the default mechanism, which is litigation and court. Please note that while litigation is more costly and destructive than handling matters through some form of consensual dispute resolution process, it is much easier. All the parties need to do is throw their money at the lawyers and the “gun for hire experts” they employ and ultimately allow a judge to decide their fate and that of their family. It is much more difficult for individuals in conflict or high conflict to jointly resolve their issues, even with the help of professionals. As they say, “when the going gets tough the tough get going.” What I mean is that unless the default is changed, as it has been in Australia, England, Wales, British Columbia and elsewhere, someone may likely abandon the consensual dispute resolution process as soon as it becomes too difficult for them. This decision to take the easy way out creates a massive amount of destruction to assets and children and destroys families. We must therefore do what other countries have already done and change the default. One member of the family should not have this much power and ability to cause so much destruction to their spouse and the other members of their family. If the default were mediation (except in those cases in which there are certain levels of domestic violence or child safety issues), I would bet that most people would successfully resolve their matter through mediation or collaborative divorce. Many things in life are determined by the way in which the “game” is designed.
In California, pre-hearing custody mediation has been mandatory for many decades now. (Los Angeles Times, 1994) However, by the time people get to court-annexed mediation, they are already in the court system. The mediation takes place only after a party has filed an Order to Show Cause for Child Custody/Visitation. Most of those documents and the Responses contain character assassinations. While the parties may ultimately resolve the custody matter through court-ordered mediation or otherwise without the need for a judicial officer to make a decision, the damage has been done. It takes an enlightened person to forgive their ex (the other parent) for the character assassination. Even if the parents are able to eventually forgive each other, they would have to suffer from dementia to forget what was said about them. In other words, the mediation should occur BEFORE any such motions are filed with the court. The “‘system’ did not create people’s problems”, but it requires things to be said that need not be said. As they say, “Some things are better left unsaid.” Another saying is “If You Don’t Have Anything Nice to Say About Someone, Don’t Say Anything At All.” These quotes make sense and our client’s declarations do just the opposite. Once this is done, a court can order the parents to “Parenting without Conflict” Co-Parenting courses or the like until the Cow Jumps over the Moon and it will make no difference.
Does anyone in this profession really believe that the damage to families is eliminated by merely changing the default for child custody and visitation issues? Does anyone think that a couple will be able to co-parent well even though they resolved their custody and visitation issues through mediation, if they litigated the support and/or property division issues? Does anyone believe that the win/lose dynamic and destructive nature of the litigation on those issues will not impact the relationship between the parents and their ability to co-parent?
Unfortunately, as Joan Kelly demonstrated so vividly in her page-long footnote listing different mediation models in an article reviewing mediation research reports, we really don’t know what we mean when we simply use the word “mediation,” as it covers so many divergent models. (Kirthardt, 1997) The difference in mediation models is not just between facilitative, evaluative, and transformative, but also pre or post filing, mandatory or free choice, caucusing or not caucusing, short term vs. open-ended, lawyers present or not present, etc. She concluded that any generalization one could make about mediation was likely to be false, because the only constant one could rely on was (at least) one unaligned professional in the room. The differences far outweigh the similarities.
Most lawyers and judicial officers believe that mediation is evaluative and are unfamiliar with other forms of mediation. The following quote from a family law colleague exemplifies that fact: “My commitment to the appropriate use of mediation and ADR tools can be discerned from twenty-five years of regular service to the courts as a volunteer family law mediator and settlement officer, my paid neutral work over the same period , and my resolution of matters for my clients over the last 25+ years with mediators, private settlement conference officers, and plain old negotiation, in addition to adversary litigation.” This attorney might be very effective at evaluative mediation and for the same reasons would probably make a very good judicial officer. However, there is a great controversy within the mediation world as to whether evaluative mediation is really mediation. (Stulberg, 1996-1997)
There is no requirement that family law attorneys have any training in Alternative Dispute Resolution. In fact, family law specialists, Certified by the California State Bar and most everywhere else, are not required to have any educational hours or training in Alternative Dispute Resolution. Mediation is unregulated in most places, including California. Thus, a person can practice as a “mediator” without ever having received any formal training.
A person claiming to be a mediator even though they had no formal mediation training is the same as a parent saying that they can teach parenting skills because they happened to have raised children of their own. The fact that someone raised their own children does not mean that they had good parenting skills and that they should be teaching others how to parent.
In evaluative mediation, matters are resolved by virtue of having a “neutral” evaluate legal positions and point out the strengths and weaknesses of each side’s case. In essence, the “mediator” is putting on a Judge’s robe because the “mediator” is helping the parties to resolve the case by pointing out what they believe will happen if the matter were to proceed to court. Thus, it creates winners and losers, just as occurs in matters that proceed to court. The win/lose dynamic is not the only problem with evaluative mediation. Another problem is that a particular judge’s credibility determinations, factual findings and exercise of discretion may very well differ from those of the mediator. It is virtually impossible to have credibility determinations, factual findings or decisions made within the realm of judicial discretion in Family Court overturned on appeal. Outcomes will vary from judge to judge and from one court to the next — even within the same courthouse — based upon a particular judicial officer’s credibility findings, factual findings, and judicial discretion. The mediator is not the judicial officer who will be hearing the matter and making the decision if the case proceeds to court. Most certainly the mediator and the judicial officer came from different backgrounds and had different life experiences. As a result, they each have different personal beliefs, values, assumptions, and biases. This, in turn, may very well cause the mediator to make credibility determinations, factual findings, and apply their discretion differently than would the judicial officer. Therefore, how can a mediator predict the outcome that would otherwise occur in court? The evaluation of the outcome is really nothing more than a prediction of what would happen in court. No amount of bias elimination training will make a mediator or judicial officer forget about their life experiences, assumptions, personal beliefs, and values.
During Abraham Lincoln’s lifetime, the concept of “No-Fault Divorce” did not exist anywhere. Today, however, we have “No-Fault Divorce” in every State in this Country. Therefore, unless the case involves issues pertaining to domestic violence or the safety of a child, fault and liability are generally not factors in family law. If a judge got divorced and had to pay what they determined to be excessive child support to an ex-spouse, it would be very difficult to be unbiased when dealing with this situation for others in their courtroom. Similarly, if a judge has a child who they feel did not receive enough child support or spousal support to meet their financial needs, they might be overly generous in making such awards — to the extent possible under the law. As a judicial officer noted, “Judges are trained to be sensitive to problems of bias; regardless, one does not undergo an instantaneous transformation from whatever one may have thought or believed as an attorney just by being sworn in as a judge or commissioner.” What makes a mediator’s evaluation any more accurate? The fact of the matter is that the crystal ball broke years ago and before it broke, it never really worked. Let me be very clear – evaluative mediation is NOT mediation, especially in family law matters.
Both litigation and evaluative mediation are concerned with positions and legal constructs that define rights and obligations. As with the Rules of Professional Conduct, laws are merely a baseline and there is nothing preventing us from exceeding those “minimum requirements.” The underlying reasons (consciously or unconsciously known) for the parties’ positions are basically irrelevant. In both litigation and evaluative mediation, we are forgetting that the only reason anyone ever contacts an attorney is that they have a problem that they need solved. In other words, the ability to problem solve is the hallmark of a good lawyer. Family law is not a war to be won, but a problem to be solved and court is the last place a family should find itself.
Mediation is a voluntary settlement negotiation facilitated by a neutral third party who has no decision-making power. The hallmark of mediation is its focus on the interests, needs, values and goals of the parties, as opposed to their positions. A key step in any mediation is the selection of a mediator. As there are no universally recognized certification processes for mediators, selection must be based on each individual’s particular training, experience and references. The mediator will usually assist in developing ideas for resolution but refrain from controlling the process, because the parties involved in the dispute are more capable of recognizing the essential elements of a workable, long-lasting agreement. A mediator will not usually arm-twist, or lean on one party, or suggest that a party is being unreasonable and should compromise. He or she will, however, encourage settlement and see that the merits of any proposal are tested. The mediator will also push the parties to consider the alternatives to a negotiated agreement, so that they know the full consequences of walking away from a possible settlement.
Unfortunately, mediation is unregulated in most jurisdictions. Since I do not believe in reinventing the wheel, I am now going to quote from the Australian National Mediator Accreditation System Report (Sourdin, 2007) because the concerns apply equally well in the United States and elsewhere for that matter. “There is no uniform, comprehensive system of credentialing practitioners, enforcing standards or developing quality improvement strategies. There is currently no requirement that mediators have a level of competency that would satisfy the reasonable expectation of the parties. We must develop an accreditation system for family dispute resolution practitioners to ensure the provision of high quality dispute resolution services, and to recognize the professionalism of the sector. We must develop minimum standards of education, training and experience to satisfy the requirements for accreditation. Core concepts of consistency, quality and public protection are central to the development of standards. As one analyst has noted, “The absence of any structure of procedural or substantive rules, in a process conducted without direct public scrutiny, presents the real danger of harm from inept or unethical practitioners…. [I]n mediation much more than in any other dispute resolution process, the quality of the process depends heavily on the quality of the practitioner.” (Sourdin, Australian National Mediator Accreditation System, 2007) “An ounce of prevention is worth more than a pound of cure” means it is better to try to avoid problems in the first place, rather than trying to fix them once they arise. If we do not implement an accreditation system and otherwise regulate mediators, we are just replacing one problem with another. Don’t families deserve more?
Collaborative Divorce is a process within which to resolve family law issues in a fair and respectful manner, without going to court. It is much like a mediation wherein the spouses each have separate legal representatives, but without the mediator. The reason that the parties do not require a mediator is that the attorneys involved have been trained both in mediation and in the collaborative process. In collaborative divorce, a team is assembled of experienced family law attorneys, mental health, and financial professionals who are specially trained in collaborative practice, mediation, and conflict resolution. The attorneys guide the clients through the legal process to reach a negotiated settlement. The mental health professionals serve as coaches who assist them in managing their anxiety and creating a parenting plan. The child specialist is a mental health professional who serves as a neutral third party whose job is to understand the situation from the perspective of the child(ren) and to advocate for their interests. The financial professionals help to educate the clients regarding the best ways to divide their assets, and to plan for the financing of two households. The result is that we are able to support them through their transition in a knowledgeable, compassionate and non-adversarial way so that they are able to make the best decisions for their family. The attorneys pledge to not litigate the matter or threaten to litigate the matter. The reason for this pledge is that litigation and judicial involvement is one way of solving a problem. If that means of problem solving is available to Collaborative Practitioners, they will be more likely to resort to that option rather than assisting the parties in developing more creative, constructive and effective alternatives for the clients and their family. If the case cannot be settled, and the process of collaboration fails, the same attorneys cannot be involved in any future litigation because otherwise, litigation would be more likely used as a problem solving mechanism. For those individuals who are afraid of the cost of a collaborative divorce because of the number of professionals involved, please keep in mind that of all professionals involved in the collaborative process, the attorney’s rate is generally the highest. Therefore, when the attorney takes more of a “back seat” in the process and leave emotional issues and custody matters to the mental health professionals and the financial issues to the financial analyst, the total cost is estimated to be one-half (1/2) to two-thirds (2/3) the cost of a litigated divorce. (The Collaborative Divorce Education Institute, 2010)
In order to demonstrate the importance of involving mental health care professionals in family law proceedings, let me briefly discuss something that occurred in a recent Collaborative Divorce case of mine. The couple had been married for 28 years. The husband earned significantly more income than did his wife. His elderly parents lived in a separate apartment at the family residence, as did their adult disabled child. Both parties hoped that the husband could afford to keep the house in the divorce because otherwise his parents would end up in an assisted living facility and they would need to find somewhere for their disabled adult child to reside. The wife knew that if she “broke the bank”, that her husband would not be able to afford to remain in the house. The wife’s attorney believed that if the case were litigated, that the wife could receive spousal support in the amount of $4,000.00 per month indefinitely. I believed that the figure was closer to $3,500.00 per month, but otherwise agreed with the wife’s attorney. Wife understood that by the time her husband bought her out of her interest in the family residence, he would not be able to afford to keep the house if he had to pay her spousal support in the amount of $3,500.00 per month or more. Through the Collaborative Process, the parties ultimately agreed that wife would receive spousal support in the sum of $2,500.00 per month for the first year and that it would decrease by $500.00 per month each subsequent year, until it went to $0.00 in year six. The parties did agree that the court would retain jurisdiction over the issue of support in the event that there was a change of circumstances for wife. However, this would have been true even if the matter were litigated and she had received at least $3,500.00 per month in support. The parties agreed that they would each receive 50% of the community property assets and that husband would buy-out wife’s interest in the family residence by taking out some equity by refinancing the property. The parties also agreed that they would each pay for their own respective attorney’s fees and 50% of the fees of the other professionals involved in the proceeding.
The following day, guess which party tried to break the deal that had not yet been formalized in writing? Answer: Husband. I tried to explain to him that if the matter were litigated, that his wife would still receive 50% of the community property, she would receive at least $3,500.00 per month in spousal support, that he would most likely end up paying a contributive share of her attorneys fees and costs and that both of them would incur significantly greater attorney’s fees and costs. In other words, I explained to him that he stood to gain nothing by breaking the deal and that he would certainly end up worse off. He still wanted to call off the deal. I then put my analysis in writing and emailed it to him, but to no avail. Fortunately, the matter was in the Collaborative Divorce process and we were therefore able to send the couple back to the coach (it was a one-coach model). She was able to get the deal back on track because his issues were emotional and the coach had special training to deal with human behavior and interpersonal dynamics. Had this case been handled in any other process not involving a mental health care professional, the settlement would have fallen apart and the parties underlying needs, interests, values and goals would not have been satisfied. Unfortunately, perfectly reasonable and even beneficial settlement options are rejected all the time only because people’s emotions get in the way and they are not thinking clearly.
Rarely is a legal problem purely legal, especially in family law. Almost all disputes involve emotional and interpersonal dynamics. Successfully resolving those disputes requires skills beyond those traditionally taught in law schools. Collaborative Divorce incorporates all of the skills needed to increase the likelihood of a successful outcome for the client through its interdisciplinary team approach to divorce.
As with any team, a Collaborative Team is only as strong as its weakest member. Therefore selecting team members who are both very skilled in their respective discipline and who work well with the other members of the team is a critical element of collaborative practice. Also, be sure to draft members onto this team only if you have enough confidence in their credentials and abilities to follow their advice, even if the advice is not something you want to hear.
As Collaborative Divorce continues to gain momentum, we need “quality control” for the practitioners because not everyone is appropriately suited for the process and therefore do more damage than good. This is true for these entering the field merely because it is a growing market, those who are not self-aware that they are not collaborative, and those who mean well but do not hone their skills. We therefore need to have systems in place to address these problems.
As my esteemed colleague, Pauline Tessler told me, “the most significant variable affecting whether a divorce will be managed well or whether it will slide into high conflict litigation is who the parties select as their lawyers. Lawyers who understand the nature of human conflict and who aim to help people resolve it, right from the start, handle their cases entirely differently from lawyers who may have reasonably positive views of mediation, but who treat it as just another way of getting to a legal-template deal and who see their job as preparing for maximum measurable gain at trial. Family law clients are going to be distressed, angry, fearful, subject to spasms of vengeful intention and other dysfunctions. Their lives are coming unglued. Therefore, choosing the right attorney is one of the most important decisions a person can make. The lawyer needs to be able to hold up for the client an alternate possibility of working from hope rather than fear. You can lead a lawyer to consensual dispute resolution, but you can’t make him or her into a facilitator of deep resolution without changing the lawyers’ understanding of what it means to be a divorce lawyer, venturing into the sacred space of primary pair bonds unraveling.”
For those of you who have never read any of my articles, they tend to be about problems with the way in which family law matters are handled. Isn’t it interesting that the Press Releases for my articles tend to get picked up by so many financial sites, such as Market Watch, the Wall Street Journal, and Finance.Yahoo. Maybe it is because the way in which families resolve their conflict impacts their financial health, which in turn impacts the economy at large.
Family law reform in many jurisdictions has focused on the health of the family, and providing more than legal assistance or conflict resolution.
The definition of insanity is doing the same thing over and over again and expecting different results. Doesn’t that apply to litigating divorces? Divorce and having children outside of marriage were slowly losing their stigma in the 1960’s. The results from the way in which divorce and family law has been handled since that time are available and quite clear. If people continue litigating divorces, they will continue creating dysfunctional families. To think differently is the definition of insanity.
Winston Churchill once said, “The Americans will always do the right thing… After they’ve exhausted all the alternatives.” (Elkus, 2009) I, for one, believe that we have exhausted all the alternatives and that the time has come for us to do the right thing and change the way in which we handle family law matters in the United States.
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