On July 10, 2016, I fainted after injuring my back while working out at
the gym. On January 11, 2017, I underwent back surgery, which was a complete success.
In the six months between the injury and my surgery, a great many family
members, loved ones, friends, colleagues, and even people I hardly knew
offered advice for non-surgical options and referrals to professionals
who provided such services. Even when I requested referrals to surgeons,
most everyone discouraged me and instead shared a wealth of information
on non-surgical options and referred me to holistic healers.
I was incredibly overwhelmed by such an outpour of love and concern because
I was absolutely terrified of undergoing back surgery and was willing
to try almost anything to avoid it.
The reason I’m sharing this story is because I'm at a complete
loss as to why people don’t behave in a similar manner when asked
for a referral to an attorney.
For example, earlier this week, someone in my neighborhood posted the following
inquiry on Nextdoor.com:
“Does anyone have a recommendation for a good Family Law attorney
in the area?”
Twelve different people responded, myself included. With the exception
of mine, every response was a referral to at least one family law attorney.
My question is why none of those individuals provided information regarding
non-adversarial options and professionals.
Why is it that when someone asks for a referral to a back surgeon, people
who want to be helpful provide them with information on non-surgical options
and referrals to professionals offering such services, but when people
ask for a referral to an attorney for a divorce, people only provide them
with referrals to such attorneys?
I believe the explanation is that people view back surgery as an option
of last resort and they don’t view adversarial negotiation, litigation
and court in a similar manner. My question is why?
With regard to back surgery, it’s because there are less aggressive,
invasive and risky approaches which might effectively resolve the problem.
In fact, the neurosurgeon who performed surgery on my back initially encouraged
me to try non-surgical options. Furthermore, any online search regarding
back surgery will provide a wealth of information on non-surgical alternatives,
even from the surgical facilities themselves.
By the way, the same is true for a great many other types of surgery.
Since people don’t react in a similar manner when someone requests
a referral to an attorney for a family related matter, I must assume that
people believe that “lawyering up” is the least aggressive,
invasive and risky approach.
Is that an accurate belief?
In almost every area of law in which families are involved, an adversarial
approach is not advisable.
For example, consider the following except from an article titled
Managing the Family Dynamic During Planning by John W. Ambrecht, Dr. Howard Berens, Dr. Richard Goldwater, and Tom
Gorman that was published in Business Succession Planning: Strategies
for California Real Estate Planners and Business Attorneys by Continued
Education of the Bar – California:
“The last thing a family in conflict needs is an additional adversary. Yet that is what many attorneys are, just
by their presence; if they also behave adversarially, they increase tension,
foment confrontation, and hamper progress. Many lawyers take an adversarial
approach reflexively because the United States legal system is adversarial
by design. Although that can help in court, it exacerbates difficult estate
The alternative is to act as a facilitator or bring in a facilitator. The
type of facilitator needed depends upon the level of tension in the situation….
In difficult, complex situations, a facilitator experienced in family
dynamics or conflict resolution, perhaps with a background in psychology,
would produce the best results.”
In addition, the following is an excerpt from the findings of a Final Report
prepared by Judy McCann-Beranger M.A., CCFE, Cert. CFM, Cert EM, titled
Exploring the Role of Elder Mediation in the Prevention of Elder Abuse that was presented to the Family, Children and Youth Section Department
of Justice Canada on November 30, 2010:
“Elder mediation provides a user-friendly, effective means of conflict resolution for families facing the stress
associated with age related conflicts. Other methods of conflict resolution
– litigation for instance – are generally seen to be ill suited
to dealing with these types of conflict.
The early application of mediation techniques to age related conflicts
prevent those conflicts from escalating into abuse….
Elder mediation has been shown to have health and wellness implications
as the process reduces the overall stress in family systems, enhances
the functionality of the family support network, heightens interpersonal
communications…, enhances quality of life, improves fragile relationships,
reduces or prevents incidence of elder abuse and neglect…, and
delays the utilization of institutional care.
The appropriate application of elder mediation to age related conflicts
appears to result in significant cost savings to families, to organizations
and to governments.”
Furthermore, the following excerpt from a book titled
Marital Separation and Lethal Domestic Violence:
"Collaborative proceedings include mediation and representation by lawyers who practice collaborative law. Mediators do
not make decisions on outcomes or impose solutions on the parties. Instead,
they facilitate communication and negotiations between the separating
parties who jointly make decisions on outcomes that usually are or tend
to be positive sum (win-win).
Collaborative lawyers use nonadversarial negotiation tactics, emphasize
joint problem-solving, and obtain in writing a commitment from the parties
they represent not to attempt to get what they want by threatening to
engage in litigation/go to court. If they do, their lawyers, by prior
agreement, will no longer represent them.
Adversarial proceedings are those in which the parties and the lawyers
who represent them conceive of outcomes as zero-sum (win-lose), perceive
each other as enemies or adversaries, and use struggle win-lose tactics
appropriate for this perception.
Choice of procedings (adversarial or collaborative) is fateful because
victims and perpetrators of all three types of sublethal and lethal domestic
violence tend to be concentrated among those who participate in proceedings
that escalate rather than deescalate conflict. Participation in adversarial
proceedings increases the intensity of conflict...
Participation in divorce mediation decreases the intensity of conflict
and consequently the risk of fatal and nonfatal domestic violence....
Family lawyers can be located on a continuum with collaborative lawyers
who decrease the intensity of conflict at one end and highly adversarial
lawyers who increase it at the other end....
In a survey conducted by Hadeem and Salem (2006), adversarial lawyers represented
a fairly large proportion of the 219 family lawyers included in the family
law practitioner sample they selected.... Schneider and Mills (2006) analyzed
data from their survey, and this was one of their major findings: 'Compared
with civil, criminal, commercial, corporate, property, and other lawyers,
family lawyers had the highest percentage of unethically adversarial lawyers.'...
Ethically adversarial and unethically adversarial lawyers accounted for
almost 40% of the family lawyers in the sample. The corresponding figure
for all lawyers is 33%. If the potential for sublethal and lethal violence
is greater in destroyed relationships than in continuing collaborative
relationships, than lawyers in this sample may be unintentionally increasing
the risk of both types of violence 'by engaging... in behavior...
that destroys relationship(s).'
The specific context for relationship-destroying negotiations is an adversarial
system that, not infrequently, produces fateful zero-sum or negative sum-outcomes
for couples caught up in its heavy machinery. In this context, 'uncertainty
about the decisions made by judges in any particular case motivates family
lawyers to prepare and process all cases as if they were going to court.'"
Since I became a licensed attorney in 1991, an increasing number of people
have found that
litigation is itself a form of violence. I wasn’t even aware of that in 2015, when I published an article titled
Litigation Should Come with a Warning.
As if that’s not enough, allow me to share the following information
from Chris Voss, who was the lead hostage negotiator for the FBI before retiring:
"Most people I know if they got a negotiation story, they'll be like oh yeah you know I had these guys over a barrel.
Well, I really hammer them, you know, there's nothing they could do.
Well, the problem with that kind of approach is if you hammer somebody
in a negotiation they're going to wait for the rest of their life
to pay you back and you don't hammer people that you never see again.
There's no such thing as a one-off. They're going to be people
that stay in your world one way or another either your day-to-day life
or they will see you again so you want you want to negotiate successfully
with people where afterwards they call you up on a phone and they say
nice job nice job....
You want to interact with someone because the adversary is a situation
if you're talking to someone actually you both have a problem that
the two of you talking together will likely solve....
So yeah, the adversary is a situation. A person you're talking to they
might feel like that they've got to be your adversary and you can
get them out of that eventually with it, with enough time.
People are really far more defensive than they are attacking, but the adversary
is the situation. So, I got to partner up with this person, so I'm
going to engage in behaviors that's going to make you tend to want
to collaborate with me....
The perception is that hostage takers are crazy and they're not....
Everybody is driven by emotions....
There's more and more data out there that indicates there's an
emotional component to every decision we make each and every decision
we make our mind up based on what we care about. Therefore what you care
about as an emotion - how you feel about things, so let's start with
the idea that we're emotional to begin with.
Hostage-taker if he's upset it's just more of himself or herself
then that different they're just more themselves intensely, so hostage
negotiations is set of tools and skills that can deal with people in very
intense emotions they're equally effective when the motions are less
The bottom line is - fear and fear of loss are a big determinant in how
people think. So, I just recognize that and then just use the tools that
Hostage negotiators employ mediation techniques because they’ve found
them effective in dealing with such high conflict situations, unlike an
adversarial approach, which exacerbates the conflict and thereby decreases
the likelihood that the hostages will be released alive.
None of this is new information. Moreover, it should be intuitive that
an adversarial approach will tend to escalate the level of conflict and
distrust and worsen whatever communication exists, if any. So, I’m
going to ask once again – Why are people so comfortable providing
those in conflict with referrals to attorneys, even when asked? Is it
because they believe that those attorneys will provide their clients and
potential clients with information on non-adversarial approaches?
If so, consider the following excerpt from an article by Forrest S. Mosten titled,
Unbundled Services to Enhance Peacemaking For Divorcing Families that was published in the July 2015 edition of Family Court Review:
“Even if a client wants to avoid court (as most do), few clients are informed by their family lawyer that there may be other
lawyers in the same community who do not litigate. Further, there is rarely
a lawyer-client discussion about the impact on the client of having a
lawyer whose income and professional view of client care may be heavily
impacted by training, participation, and confidence in the litigation
process. It is not unusual for professionals to bias their advice based
on the approach and services that they offer… [W]hile they endorse
settlement, many litigators readily recommend and utilize the courts as
a key tool in their professional approach. Adequate informed consent should
require that lawyers who litigate to discuss the possible availability
of lawyers who are not also providers of litigation services. Lawyers
who litigate should offer a discussion of the benefits and risks of utilizing
a lawyer who litigates compared with one who does not.”
Knowing all this information, do you still believe that you are helping
when you provide people in conflict with referrals to attorneys? If so,
what facts would you need to know in addition to those provided herein
that would cause you to question your view on this issue?