Response to "Top 5 Assumptions of Divorce Lawyers that Usually Fall Short"

Posted By Mark Baer || 19-Jun-2015

Kelley, I agree with some of the information contained in your article and with your ultimate conclusion; however, I have the following issues:

First, while many lawyers may be sympathetic, there is a HUGE difference between sympathy and empathy. You see, empathy connects people and sympathy disconnects them.

Social and emotional skills such as empathy are essential to conflict resolution. Therefore, those best suited to work in conflict resolution should have high EQs (Emotional Intelligence). It has long been known that while lawyers tend to be analytical because the field requires it, they generally score poorly in terms of their EQ level. This isn't a problem when their job is merely to assist in resolving disputes. However, problems ensue in situations in which interpersonal relationships are involved, including but not limited to disputes between family members, employer/employee, neighbors, and business partners. It doesn't help that people frequently confuse 'conflict resolution or management' with 'dispute resolution.' People with low EQ levels can generally do one, but not the other.

Second, on the off chance that the client actually retains an emotionally intelligent attorney, it is of immense "benefit to engage their attorney in lengthy emotional conversations," AND while such conversations may not have any bearing on the legalities of their case," they sure as heck have bearing on efforts to resolve or otherwise manage conflict. In fact, I am involved in such work, whether I am retained to mediate a case or to represent someone as their attorney.

Third, when mediating a case, I'm not so sure I agree that clients should be talking through counsel. In fact, I wrote an article on just that topic, titled "Should Divorcing Couples Who Mediate Be Talking Through Counsel?"

Fourth, while only "legally relevant evidence" is admissible in a courtroom, the same is not true in mediation. To limit information conveyed in mediation to "legally relevant and admissible evidence" is a HUGE missed opportunity and has consequences. My article titled "The Perfect Storm: Lawyer Limitations and the Adversarial Model in Family Law" addresses just this issue AND is not required reading in one of the LLM classes at the Straus Institute for Dispute Resolution at Pepperdine, which has been ranked number one in the nation by U.S. News & World Report for the 11th consecutive year.