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LITIGATION Verses MEDIATION: ADVERSARY REALITIES Worth Considering Before Pulling the Trigger

Litigation Is The Default Strategy For Adjudicating Conflict

Some people believe that mediators don't hold the American legal system or the judges who play their role within it in high regard. That isn't the case. Speaking for myself, I feel that divorce court ought be the option of last, and not first, resort. We accept the status quo because it has a long history within the American cultural identity as being the only method for resolving disputes. This is not true in many countries, which is why foreigners sometimes look at our courtroom antics as a source of amusement and derision. The United States is the most litigious nation in the world. But it is also a fact that our freedoms depend upon our legal infra-structure, including the roles that judges and lawyers play. We just need to add the mediators to our organic view of our family law legal system.

Professional mediators value our legal system. Both litigation and mediation have as their ultimate goals the peaceful resolving of conflicts and disputes, and the equalization of power as between disputants so that weaker parties, or segments of the population, are not disadvantaged or oppressed by those who hold greater status, larger wallets, or the majority view. Without the safety valve that the symbols and procedures of justice provide, conflict could erupt into violence and the functioning of society would be imperiled. Watching the world and local news, it seems we are often on the edge of this escalation anyway, making the justice system even more crucial to how we manage and conduct our lives. Not only do courts help ensure order and some semblance of fairness between people or entities that are 'in argument' with one another, our belief that they fulfill this function is elemental to our sense of safety and our willingness and consent to submit to authority, governmental or otherwise.

Divorce was largely unknown in American legal society until the mid-1800's. Our governing system simply was not designed to address the financial and emotional consequences of divorce, and has been playing catch-up ever since. We superimposed the structures for resolving political and business disputes upon families for lack of another choice, and there was no other paradigm to apply until the last few decades when forward thinkers pioneered the first wave of alternative dispute resolution options. It is that same disconnect that inspired collaborative law and mediation processes within the family law arena as the second wave of non-court possibilities, but these processes are not yet mainstream.

Now another movement is gaining momentum that incorporates mediation in the center of our dispute solution thinking. Understanding the dangers and limitations of court divorce is foundational to making informed decisions today about what to do.  This is one reason why I keep blogging about it.


Family court judges and commissioners are passionate about serving the family law litigants who appear in their courtrooms, as are mediators specializing in these disputes. But unlike the limitations that judges find themselves enshrined within (rules, rules, rules), mediation contains only the barest of limitations. The minimal constraints for mediation are transparency between the parties and open disclosure about all relevant matters, consent to engage the process, and respectful speech between the parties. While simple, these rules are not so easy to follow which is one reason why adversary litigation for some people aren't going away any time soon. But I believe that a fresh outlook that incorporates integrity into relationship transition may be just a shift in thinking away.

Realities of Divorce Court and Limits On What Judges Can Achieve

  • Although a marriage or domestic partnership dissolution is only about the parties lives and their children, if any, at all times the parties themselves are the least empowered and important persons in the court process.
  • Judges are the most important decision-maker in family courts. They are adorned by the symbols of power. These include robes, a bench that is placed higher than any other seat in the room which focuses every occupant's eyes on their august presence, deputies who carry loaded weapons, the flags of government, titles of honor, Latin phrasings and more.
  • As the deciders and dispensers of "justice," as a practical matter they are beyond challenge, cannot be questioned, and rule the process much like any mini head of state. There is some reason for all of this within the adversary process, if we are to consent to being governed (requiring that we hold faith in the governor's fairness and wisdom). Judges should be viewed as the personification of justice and the utmost decorum must be maintained; moreover, these symbols are also hoped to remind the judges that they serve by the will of the people who appear before them.
  • At the same time, judges are merely people like every one of us. They have all the same biases, quirks, temptations, personal histories, and vulnerabilities. Judges have specialized training about ethics, bias, and managing the power they are granted in a manner that instills confidence. But no matter how you slice it, when power is ceded there is always a risk of abuse. With family court judges in particular, many of whom actually dread the assignment, being faced with stubborn disputes day in and day out carries the risk of reactivity, cynicism and sadness, tendencies of becoming lost in self-importance, frustration, and general burn-out and even a desire to flee. Whenever we grant people with power over us we tend to imbue them with god-like qualities. Although understandable this imposes quite a burden which is neither fair nor realistic. Judges are not gods.
  • The fact is that some family court judges have no particular expertise in family law. We make a leap to faith that they do, but I am telling you this is not true. Should a well-meaning carpenter repair your car?
For these reasons I believe any person who wishes to control their own destiny will not place an unreasonable faith in the ability and power of judges, except as a last resort, to decide their fates. However, I admit that some people just cannot overcome their conflicts on their own, or are married to spouses that suffer from what borders on personality disorders. It is near impossible to mediate such couples successfully.

But for a vast portion of our divorcing population, where there is understandable distrust and conflict, mediation holds real promise in getting people through the end of relationship economically and with dignity. I hope that you might be one of the lucky ones.



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