Litigators have been destroying families for decades, including mine. I was a child of divorce. My parents divorced in 1984 and hired very well-regarded Beverly Hills divorce attorneys (well-regarded back then and still well-regarded to this day). For what, I have absolutely no idea. Other than being exceptional at the use of the adversarial system to create permanent damage to families, I see no benefit they have done for society -- quite the contrary.
The litigation system is a mess. Destroying the mediation process is not the answer. I am sure that the brilliant litigators who have managed to create such destruction in our society are perfectly capable of figuring out a way to get around the "problem" caused by the
Cassell case. In fact, such a suggestion is set forth in the
Mediation Advisory by Rutan & Tucker. As far as I am concerned, litigators have become much more effective at taking advantage of the shortcomings of the system than they have at making sure that justice prevails. Thus, I have no doubt that these "evil geniuses" who have used their knowledge and skills for evil and not good are more than capable of figuring out a way to get around the "problem" short of damaging the mediation process -- a process they don't like because they don't understand it and are threatened by it.
I don't only base my views on the utter chaos that those brilliant family law attorneys in Beverly Hills who represented by my mother, my father and then my mother and step-father in VERY destructive divorces that permanently destroyed our entire family. 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.”
I also base those views on the fact that anyone who knows me knows that I believe in fundamental fairness. After my mother died, Kenneth G. Petrulis took advantage of the flaws in the legal system in order to obtain a successful outcome for his client. I do not mean to imply that Ken Petrulis ever did anything in our case that was unethical. He zealously represented his client, as he should have as his attorney. The case was before Judge Aviva Bobb. Judge Bobb was obviously an intelligent and knowledgeable judge. She presided over the family law courts at one point in her career. However, in my mother’s case, she made some dispositive evidentiary rulings that in my opinion revealed that in our case she held a fundamental misunderstanding of some of the material issues at play in the case. As a result, my mother's ex-husband of ten years won a judgment of a million dollars against her estate. That was the final blow to my family. I have handled many cases in my 21 years as a lawyer and I do not make such statements lightly. I have seen such bad behavior time and time again.
It’s true that what happened in my mother’s case ignited my research into the effect of family court litigation on families. And it’s also true that reliving some aspects of that case, which tore apart my own family, triggers emotional reactions in me even though I feel that I’m past it.
Although my advocacy concerning lifting family law cases out of the trenches of litigation was launched by my own case, however, it has now moved far beyond that. Our case is over. Final. I am now determined to ensure that the irreversible damage that litigating family law and probate matters has caused to my family as well as countless others comes to an end. Zealous advocacy works in criminal law and in certain other areas of law. It does not work in family law and probate where families are involved.
I have become very outspoken about the fact that the 'default' system for Family Law needs to change from litigation, as the first choice, to mediation or some other form of consensual dispute resolution. I believe the same is true for
probate related matters for the same reasons -- family. Litigation and family do not mix.
After witnessing the destruction caused to my own family (let alone those of my clients), since 1984, I was so disgusted at the miscarriage of justice and lack of concern for family in the United States that I seriously entertained the idea of permanently leaving the United States and giving up on the practice of law. After what occurred in my mother's probate case, I actually traveled to Australia and New Zealand for five (5) weeks in late 2007 and early 2008 with the intention of moving there. Instead, I returned to the United States with a mission. I am determined to be an integral part in bringing about these much needed changes so that others will not suffer the tremendous amount of pain, grief and destruction that the litigation system here has caused me personally. It seems to me that I am making amazing progress on my mission because I am certainly receiving a great deal of attention for my efforts. I would say that my being asked to be the Keynote Speaker for the opening night of The Divorce Expo in Detroit is some indication of the visibility I have been receiving, especially since I am only licensed to practice law in California.
I am what Carl Jung referred to as a wounded healer.
Almost all divorces occur because of some level of conflict between the spouses. The adversarial system certainly does not reduce that conflict. If there are children of the relationship, we should be attempting to reduce the conflict. That certainly cannot occur in an adversarial system. The amount of damage that the adversarial system causes families is a matter of degree - some more than others.
The key issue is training. Lawyers in the United States are trained to represent their clients through the adversarial forum of a court-room. Research indicates that the process of litigation increases the conflict and trauma for separating parties. This impacts the children of the relationship, and even extended family members. It is the role of the lawyer, once litigation has commenced, to "fight" for the interests of their clients.
As a colleague of mine in Ireland who has been involved in family law research over the past three years recently commented, "while legal training I believe should be a pre-requisite for anyone dealing with substantive issues in mediation, it is the suitable 'personality' test that distinguishes competent mediators from great mediators. 'Great' meaning effective problem solvers and defusers of conflict. My experience of the 'interest' that brings people to practice mediation is invariably a personal experience of the break-down of a family, I believe that this is a strength not a weakness, and greatly informs the empathy that a mediator ought to have to truly connect with their clients. This does not mean that mediators who have have had negative experiences as a child better understand the dynamics of mediation, it just means that they have a greater 'interest' in a peaceful outcome, informed by their own experiences."
Roisin O' Shea Dip, BA Hns (Law), Certified Mediator, PhD candidate at Waterford Institute of Technology, Ireland.
Unless I am missing something, the same thing holds true for family law attorneys as well as judges and other judicial officers.
The most important take away I can give everyone is the following: Attorneys who practice in the field of family law must understand the nature of human conflict. They must also aim to help people resolve that conflict right from the start. Choosing the right attorney is one of the most important decisions a person can make.
An intelligent man on a mission, who has become known as a truly gifted writer who is educating the public about the flaws with the way in which family law (and later probate) is handled in the United States is very dangerous to those who want to maintain the status quo.”