Family law is not spandex and therefore one-size-fits-all does not work.I will be the first person to agree that there is no process for handling
divorces that is appropriately suited for every case.For example, if a case involves issues of child safety and/or certain levels of
domestic violence, litigation could possibly be the most appropriate way in which to proceed.One of the programs being offered at the International Academy of Collaborative Professionals’ 13th Annual Networking and Education Forum taking place in Chicago in October 2012 is titled “Domestic Violence in Collaborative Family Law Cases”.That program is described as follows:“This presentation will address how to deal with domestic violence in Collaborative family law cases, including screening tools to identify a history of family violence in the initial client interview, reasonable steps to be taken to address concerns regarding family violence if violence occurs during the process, and how to help clients decide whether to remain in the Collaborative law process or opt out and proceed to litigation after violence has occurred.”
However, lack of trust or respect for each other is not a legitimate reason to rush into litigation, rather than attempting to resolve the matter through mediation or collaborative divorce.It would be highly unusual for divorcing couples to trust and respect each other.In fact, in a non-adversarial conflict resolution process such as mediation and collaborative divorce, the professional(s) help to create trust, respect and understanding.My mediation clients repeatedly tell me that this aspect of the mediation was the most invaluable to them.
People are entitled to be treated fairly.This is not just a legal issue, but an innate human need.Such a need is not limited to humans, but has also been found among monkeys, dogs and other animals.The following is a link to a TED talk given by Frans de Waal regarding moral behavior in animals:https://www.youtube.com/watch?feature=player_embedded&v=GcJxRqTs5nk.
Among other things, that discussion shows the how two Capuchin monkeys respond when they do not receive the same reward for the same work. Why would anyone believe that human beings should be treated with any less respect than that demanded by monkeys, dogs and other animals? That TED talk might explain why it is not wise to ask for too much, whether during the negotiation process or through fraud and deceit. When we ask for or demand too much, we find ourselves in front of a judge (at a great financial and emotional cost) because it offends the other party's sense of empathy, cooperation, fairness and reciprocity. In a court of equity such as the
court (at least in California), this typically results in a lose/lose situation because it is supposed to be a court of equity and thus the resources (financial and emotional) spent to obtain the "just" result are wasted.
Rather than understanding such things, attorneys frequently encourage people to litigate their disputes. Interestingly enough, this "lack of understanding" on the part of such attorneys and other professionals involved in the litigation process happens to benefit them financially, often significantly. Therefore, rather than trying to appeal to their clients' innate sense of empathy, cooperation and fairness, they encourage their clients to participate in an adversarial process. These attorneys need not understand such things because they frequently believe what one such attorney recently stated. "Amazing how easily academics who publish something wind up publishing junk." What I find "amazing" is the arrogance of attorneys to completely disregard important reseach because they don't like the results of that research. Did these lawyers observe the research as it was being conducted? No! Do these lawyers have any training in the particular field of research? Probably not! Did these lawyers consult with professionals in the particular field of research before reaching their conclusions? Probably not! Therefore, how can they so easily jump to the conclusion that the reseach is "junk"? Their answer ultimately boils down to this: "Because I said so." You know what? That is just not a good enough answer for me and it shouldn't be any more acceptable to anyone else.
By the way, these same attorneys and other professionals involved in the litigation process will say things like the following: "I have been saying, for years, that litigation itself isn't the problem. It is how litigation is handled. It is irresponsible and makes no sense to issue a blanket indictment against a process. Processes don't do things. People do things. I've seen collaborative and mediation break down in ways that resulted in enormous damage. I've seen litigation result in parental alliance and a great outcome. Perhaps rather than saying that this or that process is what should take place, we need to focus on how we, as family law professionals, handle our work and what our approach is. That is where we can really do some educating."
However, as they say, "don't mess with mother nature." If we know that human beings have an innate sense of empathy, cooperation and fairness, we should be doing things to encourage such behavior. Almost all divorces occur because of some level of conflict between the spouses. 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. Moreover, if there are children of the relationship, we should be attempting to reduce the conflict. That certainly cannot occur in an adversarial system, where it is the role of the lawyer, once litigation has commenced, to "fight" for the interests of their clients.