| The traditional adversarial system continues to draw | | | | periodically during litigation. |
| criticism when aggressively applied to family law | | | | However, the real change necessary to simplify and |
| cases. Apart from the inefficiencies, impracticalities and | | | | create an atmosphere of less confrontation shall result |
| costs of such approaches, the reasons for abandoning | | | | from the individual professionals taking appropriate |
| these poorly conceived methods of dispute resolution | | | | action - the Judge, the attorneys, the other expert |
| should be obvious: | | | | professionals, such as mental health professionals and |
| 1. Combative fires tend to be fanned and magnified | | | | financial professionals, called upon to assist one party, |
| with each contested Court proceeding, thereby | | | | the other, or both parties. |
| creating the potential for long-term conflict; | | | | Each professional person coming into contact with the |
| 2. Negative emotions and feelings of the parties are | | | | parties in the family law "system" has a significant |
| allowed to significantly impact the attorneys' actions on | | | | opportunity to "assist" the party/client/patient, rather |
| behalf of their clients; | | | | than to "advocate." The goal of the family law |
| 3. The potential for professional ill-will between | | | | professional should not be to represent his or her |
| attorneys and professional experts is created, while | | | | client's interests blindly, but to be mindful of the client's |
| heightening the potential for gross animosity between | | | | best interests in light of the entire family's long-term |
| attorneys and opposing parties. | | | | interest, both financial and emotional. If children are |
| The litigation process influences the attorney to take | | | | involved, their interests must be paramount. If there are |
| every available advantage for the client, put the client's | | | | financial issues, they must be approached with a |
| case in the best possible light, not offer evidence that | | | | sense of objectivity and fairness to both sides. |
| is harmful to the client (with some exceptions), and | | | | Most parties arrive in the family law "system" via the |
| challenge everything possible, in the opponent's case. | | | | divorce attorney. Some persons will have contact with |
| The opposing attorney has the same job. | | | | a mental health professional or clerical member. Others |
| Most attorneys in the adversarial process are so | | | | will have discussions with their accountant, family |
| caught up with the client's "cause," that the attorney | | | | physician or other trusted family friends. Yet, it is the |
| can lose sight of any and all sense of objectivity, which | | | | attorney who most often has the first real opportunity |
| is required to analyze both sides of an issue. Many | | | | to change the way the system operates. |
| attorneys are all too willing to believe the "emotional" | | | | The first contact between the attorney and client is |
| version of the client's facts, and not inclined to | | | | critical and will probably set the parameters of the |
| scrutinize the information for false or misleading claims. | | | | relationship between the attorney and client throughout |
| The contested dissolution of marriage case is a family | | | | the entire case. The attorney can easily take sides |
| disaster waiting to happen. As difficult and bad as | | | | with the client, support the client in every way, and |
| things seem to be during the litigation of a family law | | | | begin planning a strategic attack on the other side at |
| case, the real battle, the real conflicts, are yet to be | | | | this beginning point. Or, the attorney can sit back and |
| realized. After the Final Judgment is entered whereby | | | | listen to the client (listening is, of course, an excellent |
| a Judge determines contested issues, if there are one | | | | communication technique). At some point, however, the |
| or more minor children or any ongoing financial support | | | | attorney must ask some questions, explore the facts |
| matters or any other issues over which the Court has | | | | not being volunteered by the client, and inform the client |
| retained jurisdiction, an odyssey of struggle and conflict | | | | of reasonable expectations notwithstanding the client's |
| will surely ensue for as long as the Court has | | | | feelings, wishes and concerns. |
| jurisdiction over the parties and subject matters. | | | | A problem-solving approach would include: |
| What can be done to avoid this "never-ending" conflict | | | | 1) Assessing whether the client, in fact, needs an |
| resulting from litigating family law issues? Probably | | | | attorney at this point. Is the marriage really over? Is it |
| nothing immediately, but over a period of time, changes | | | | realistic to consider saving the marriage? |
| can occur which will result in most of these kinds of | | | | 2) Counseling that children are not to be "used" as |
| issues not being litigated. However, change is slow in | | | | pawns. Their best interests must be considered, which |
| the traditional legal arena where attorneys are trained | | | | normally means regular, frequent contact with both |
| and experienced in relying upon precedent and stare | | | | parents. |
| decisis. | | | | 3) Encouraging or discouraging communication |
| Significant changes in process are required; however, | | | | between the parties, depending upon the relationship |
| the professionals practicing in the adversary system | | | | and feelings of the parties toward each other. |
| may be resistant to change and unwilling to consider | | | | 4) Avoiding any action that will result in antagonizing |
| different and creative means in representing a family | | | | the other side or in engendering distrust. Typically, an |
| law client. Also, such creative and innovative changes | | | | attorney's letter articulating his or her client's grievance |
| in process may appear to be either unethical or in | | | | or position may result in additional ill-will and additional |
| violation of the attorney's duties to fully represent the | | | | disagreement between the parties. Consider picking up |
| client, thereby further delaying change. | | | | the telephone and talking with the opposing lawyer first |
| As time progresses, changes must occur in the | | | | regarding sensitive and potentially confrontational |
| "system" which will result in a process which is more | | | | issues. |
| practical, simplified, less financially expensive, less | | | | 5) Treating the other side with courtesy. Try to |
| time-consuming and less confrontational. Moreover, | | | | overlook actions that will appear to be, or are, in fact, |
| changes are occurring whereby legal procedural rules | | | | uncooperative or insulting. Instead of responding in a like |
| in many states now require alternate dispute resolution | | | | fashion, the attorney should start to attempt |
| at various stages of litigation, as well as required | | | | cooperation. Avoid emotional reactions and deal with |
| financial disclosure and supplemental disclosures | | | | the factual issues logically. |