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