I began my working career as a lawyer for one of the toughest family law litigation firms in town. As early as 1977, however, after only two years in practice, I began to realize that there had to be a better way of handling divorces than a system that had been designed for criminals, business people and tortfeasors. At the time, there wasn’t; but a few years later, I began to read about something new called “mediation.” I went into my own practice hoping to build a career doing mediation as well as litigation. By the late nineties, another kind of consensual dispute resolution developed to meet the needs of parties who were not comfortable with mediation, but didn’t want to do costly and devastating battle with their longtime partners and the parents of their children. That process was called collaborative law. Six years ago, I gave up my litigation practice altogether to focus only on CDR. Not all CDR providers do that, but those who still litigate generally do so only as a last option. We are striving to be lawyers who are problem-solvers, peacemakers, yes, even, healers; lawyers working to let the light come in for our troubled clients and their families. And we believe that we have found safe, effective ways to help them by what we used to call “alternative” dispute resolution and now simply call “consensual dispute resolution” or CDR.
A few times a week, though, I get a call from a potential new client who says that he or she is concerned about whether mediation or a collaborative process would provide enough “protection.” By “protection,” I have learned that people usually mean making sure an inexperienced or timid housewife is not taken advantage of or does not follow her own impulse to buy peace or custody of the children at the expense of her financial well-being. Male clients are often concerned about their impulse to give away the store because they feel guilty about leaving the marriage or because they are entrenched in the role of caretaker. Thus, even though many clients intuit that the traditional divorce process is hard on families, they often reluctantly and mistakenly accept the traditional notion that the adversarial system and the aggressive attorneys who practice in it offer the best or perhaps only option.
Those of us, however, who, like me, have a long history of working in the traditional system and have either added or switched to CDR know otherwise. We know that clients need protection from the grinding legal system itself. Early on in my career, I discovered that this system leads to a host of problems for divorcing families who put their trust in “justice.” I learned that most people never even get to the halls of so called justice, halls outside courtrooms which are filled with overworked, understaffed judges with their own biases and 40 cases each morning and no time to consider whether it is too far for a parent to drive to Little League after school or the many other issues which are so important to parents trying to raise happy, healthy children.
And if the clients do get heard, the system is not set up to address the emotional, financial and parenting tasks which divorcing families need to address. Litigants, who have to maintain on¬going relationships with their former partners if they have children together, instead get short term solutions to fluid long-term and recurring problems, after a debilitating battle that is expensive, invasive, and demeaning. Litigants get caught in a spiral of blame, shame and rage, stuck in the anger stage of grieving. Studies are clear that the children of such raging battles suffer irremediable harm, despite all good intentions of their parents, and their parents, cannot move on or up. If they settle their cases short of trial, they have wasted enormous time, energy and money in formal processes which include preparing for a court hearing that never happens, and they usually settle for deals that attorneys like to say are fair because nobody likes them. Some justice, some protection!
Divorcing families deserve better. CDR providers can do better than that.
Clients can be protected by trained professionals-attorneys, mental health professionals and financial experts-working together with them to help them move forward with as little damage as possible. These professionals have a new set of values, have honed a new set of skills, and have designed new procedures that will really “protect” the clients not just give them the momentary satisfaction of engaging in battle. CDR professionals offer structured processes that encourage and assist both people to voice their concerns and then come up with a range of possible solutions. This is a shift away from what is called positional bargaining with its win/lose mentality and personal attacks to interest-based principled negotiation, which produces wise outcomes efficiently and amicably without all the transactional costs of digging in to positions only to have to dig oneself out of them.
During mediation sessions, which may or may not include attorneys, the parties themselves are encouraged to speak up, and if they cannot do so effectively, the mediator or attorneys may step in or clients are advised to obtain expert assistance in the form of outside consulting attorneys, collaborative professionals, coaches, child development and financial specialists, and other experts.
If the matter is a collaborative case, the parties’ attorneys attend most sessions with their clients, but they, too, encourage their clients to take control of their own lives by being partners in information gathering and assessment. And they, too, emphasize the need for mutually beneficial decisions, based on a consideration of everyone’s underlying interests.
In both mediation and collaborative cases, clients are encouraged to and shown how to communicate more effectively than they did during the marriage. They are shielded from personal attacks and encouraged to develop and follow agreements about how they will behave during the sessions and for the duration of the divorce process.
They are taught that it is possible to cooperate without giving in or giving up, that the needs and interests of each person must be concerned in order to obtain agreement, and that many interests are overlapping or not mutually exclusive. This type of negotiation limits ineffective power games like “hi ball/lo ball,” “split the baby,” and “who blinks first,” that frequently produce agreements no one likes or results in stalemates which ultimately require a judge to make decisions that the parties themselves are better served to be making themselves.
Fern Salka is a Certified Family Law Specialist with a law and mediation practice in Brentwood. She is the former chair of the Los Angeles County Bar Association Family Law Section and is listed by Los Angeles magazine as a SuperLawyer for 2004 and 2005. View her website and Divorce Magazine profile.