Family Law in the United States -- An Uncivilized, Unenlightened and Barbaric System

Posted By Pasadena Family Law Attorney || 22-Mar-2011

In 1996, the Australian government reformed its family law system in an effort to make it "more responsive to families in need, 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." Since then, mediation has become the "primary dispute resolution (PDR) 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 behaviour 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."

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." This process is no longer known as "primary dispute resolution (PDR)", but is now referred to as " family dispute resolution (FDR)." " FDR is the legal term for services (such as mediation) that help couples affected by separation and divorce to sort out family disputes.... You can only apply to a family law court for a parenting order when you have a certificate from an accredited FDR practitioner which states that you have made a genuine effort to resolve your dispute through FDR."

In 2004, the Family Law Court in association with the Federal Magistrates Court published a book entitled, " The Family Law Book" which is about the "realities of the family law system as it works in the Courts in Australia today." According to that book, "the Courts aim to help families resolve their disputes without the need of going to a trial before a judge or federal magistrate. The Courts encourage separated couples to attend mediation before starting court action, and in the case of the Family Court pre-action mediation is a requirement in many situations.... Experience shows that mediation can help when you are having difficulty communicating with your former partner, which is something that often happens around the time of the separation, when many adjustments have to be made to your relationship. Mediation provides professional help that may assist you to come to terms with separation and divorce, including making the best arrangements for your children and the fair distribution of property. It does so by providing an independent third party and a neutral location to discuss and resolve issues that might allow each of you and your children to reorganize your lives."

England and Wales are following Australia's lead and are making similar reforms to their family law system. On February 23, 2011, the British government announced that effective April 6, 2011, "divorcing couples will be referred to mediation [for child custody and/or financial issues] to sort out most disputes before they are allowed to use the courts." Justice Minister Jonathan Djanogly stated, "our proposals aim 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.... "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 minister, "programme statistics suggested that more than two-thirds of couples who took up mediation were 'satisfied with the results.'"

"Family law in the United States is a state matter.... Power is decentralized in the United States; and this is more than a matter of structure, it is also a matter of culture. Structure, however, does matter.... The United States is fragmented, decentralized." Many states have a mandatory divorce mediation requirement. However, with few exceptions, the mandatory "mediation" is limited to child custody and visitation matters. California is one such state. The "mediator" will assist the parents in reaching a parenting agreement. However, each county enforces the mandatory "mediation" requirement in its own unique way.

Nevertheless, the “mediator’s” job is to get the parents to reach a custody agreement.These “mediators” use their position to strong-arm parents into entering into such an agreement (without the involvement of legal counsel) and while parents are often extremely vulnerable emotionally. For example, a parent who was denied access to their child by the other parent for a few months before the "mediation" appointment may very well agree to any custody/visitation arrangement that allows them to finally see their child. Once the agreement is reached, the custody/visitation matter is no longer before the Court at the upcoming hearing, unless the agreement is rejected as provided for below.

Some counties have recommending "mediators", who make recommendations regarding child custody and visitation to the court based upon what the "mediator" learns in the course of the "mediation." In accordance with recent legislation, courts have until January 1, 2012 to change the title of such "mediators" to "child custody recommending counselors." The reason for this change is because a recommending "mediator" cannot be a "mediator" because "the Legislature has broadly provided for the confidentiality of things spoken or written in connection with a mediation proceeding.... 'All communications, negotiations, or settlement discussions by and between participants in the course of a mediation . . . shall remain confidential.' We [The California Supreme Court] have repeatedly said that these confidentiality provisions are clear and absolute. Except in rare circumstances, they must be strictly applied and do not permit judicially crafted exceptions or limitations, even where competing public policies may be affected." Nevertheless, recommending counties may still permit recommending "mediators", just called by a different name.

Other counties, such as Los Angeles County, are non-recommending counties. If the couple is unable to reach an agreement during the course of the "mediation", the mediator merely advises the court in writing that the parties were unable to reach an agreement. " Mediation has been used by the Los Angeles Superior Court as a means of resolving child custody disputes since its inception in 1955. If the parties are involved in a child custody dispute, mediation is required. In fact, a court will not make orders related to custody unless the parties have attempted to resolve their custody dispute through mediation. Court employees trained in resolving such disputes work with the parents in an effort to reach a custody agreement. This form of mediation is known as Conciliation Court. Attorneys are not permitted to participate in this process and the "mediators" advise the parties that they have the opportunity to reject any agreement entered into within 10 days or the morning before the Court hearing, whichever first occurs. What the "mediators" and many attorneys fail to explain to the parties is that if they timely reject the Conciliation Court Agreement, the judge will often inquire as to the reasons for the rejection of that agreement. Unless the rejection is based upon a significant incident that occurred since entering into the agreement, many judges will make a custody order that basically reinstates the terms of the original agreement, regardless of the rejection."

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.

The Utah Legislature passed a mandatory divorce 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. The newer models have been invented, tested, and implemented in other courts. The results so far have been quite positive in several ways. 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 levels of the parties is higher than for litigation."

In California, the legislature made major changes to the family law system in 2011. In essence, the changes are expected to make litigating family law matters take longer than before, more costly and more adversarial. In fact, at the Pasadena Bar Association's Family Law Section Luncheon on January 26, 2011, Judge Thomas Trent Lewis commented that "as couples watch their $1,000,000.00 estate reduce to $200,000.00 after the cost of litigation people might begin behaving differently." That is assuming that people learn from the mistakes of others, which is inconsistent with the history of mankind. Moreover, each couple that wastes its savings and assets will never recoup that loss.

It is fascinating that when more civilized, enlightened and less barbaric countries are plagued with the same problems with their family law systems, they embrace mediation and other forms of consentual dispute resolution because they address most, if not all, of the problems with litigation and courts in family law situations. In those countries, litigation and courts are now referred to as Alternative Dispute Resolution and mediation and other forms of consentual dispute resolution have become the Primary Dispute Resolution or Family Dispute Resolution. Yet, in the United States, litigation and courts are the still the "first choice for the resolution of family law disputes." Mediation, Collaborative Divorce and the like are referred to as "alternative dispute resolution (ADR) or more recently as "consentual dispute resolution" (CDR). The name change may more accurately reflect the manner in which the disputes are resolved, but it does not change the fact that it is still not the "first choice for the resolution of family law disputes."

"So why aren't we doing mandatory mediation? Simple inertia. The legal system is resistant to change even when we know that there are cheaper, simpler and less stressful alternatives. It is easier to stay in the adversary system 'rut' than to pave a new modern road. Some lawyers will undoubtedly object since they will earn less than they do now from contested divorces. Unfortunately, one of the main sources of resistance to legal reform comes from lawyers with a vested financial interest in a complicated system that forces litigants to need their navigational and advocacy skills. That is not a sound reason. The legal system exists for the benefit of the public and not for the financial benefit of a few lawyers who make money from the martial conflicts of the litigants."