New Hampshire Bar Journal
2011 Winter, Pg. 28.
Assuaging the Rage of Achilles: Athena, Aikido and Marital Mediation
New Hampshire Bar JournalVolume 51, No. 2Winter 2011Assuaging the Rage of Achilles: Athena, Aikido and Marital MediationBy Joseph CaulfieldRage - Goddess, sing the rage of Peleus' son Achilles, murderous, doomed, that cost the Achaeans countless losses, hurling down to the House of Death so many sturdy souls, great fighters' souls, but made their bodies carrion, feasts for the dogs and birds, and the will of Zeus was moving toward its end. Begin, Muse, when the two first broke and clashed, Agamemnon lord of men and brilliant Achilles....(fn1)
THE UNIQUENESS OF FAMILY LAW LITIGATION
Family law litigation leads to more burnout of the judges, marital masters, lawyers, guardians ad litem, and mental health workers than perhaps any other area of our practice. it overloads us, places an inordinate amount of pressure on us, frustrates us, and has the capacity to taint our view of the world. unwilling to back down from the challenges, we are compelled to take on every stressor that comes our way.(fn2)
Most judges who are murdered by dissatisfied parties are killed by the irate domestic litigants, not by the criminal defendants. The reason is simple: more emotional issues are involved than in any other litigation.(fn3) with such statistics, one wonders why New Hampshire spends the manpower and time to so thoroughly search the lawyers as they enter the courthouse, other than through some strained sense of egalitarianism. surely, we are a statistically innocuous group.
in most areas of the law the roles of the parties are clear and the opportunity for litigation fairly limited, as, for example, motor vehicle personal injury law. seldom have the two drivers met before and, when the case is either tried or settled, seldom will they meet again. they never loved each other, so if they hate each other now, as opposed to merely consider each other damned fools, the hate is not a deep hate and abates readily when the case is concluded.
in criminal law, again the issues are clear-cut. it is the government against the individual. A criminal defendant may develop hatred of a particular prosecutor and vice versa, but seldom does a criminal defendant "hate" the government and, of course, the government has no feelings, being too often the implacable Wheel of Karma. Neither of the parties ever loved each other. Again, the encounter is limited and, although with certain defendants there may be frequent additional encounters, the issues defining each encounter are very different.
Family law litigation and probate litigation offer unique challenges. whenever a client comes to a lawyer with a horror story of litigation that never ended, it is likely to involve a contested divorce or a contested estate. Family law litigation and probate litigation share the same weighty psychological issues, and these issues drive the litigation, not the legal issues. in a contested estate, the litigants, in the guise of disputing the division of estate assets, are often struggling over issues of "mother loved you best," "i loved mother best," and, "if only you had taken better care of mother, she'd be here today." Since the parties are not really struggling about money, they seldom perform cost-benefit analyses, and legal fees often escalate uncontrollably, producing little tangible value. Note, i wrote that the fees often escalate uncontrollably, not that the parties pay these fees. The parties have a lifetime of grievances against each other and can take years to work them out in the court system, if ever.
in family law litigation, the parties, again, have a long history together, though, perhaps, not as long as in probate litigation. The parties once loved each other romantically and lived together. Now, often as conflicted co-parents, they hate each other. They will sincerely confess to the court that the spouse, whom they once held above all others, is not fit to have one unsupervised moment of contact with their child, lest the child suffers some heinous fate. Again, since the litigation is seldom about finances, despite what the parties contend, legal fees are really no object, and the case can go on, and on, and on. Worse even than probate litigation, is family law litigation, because most estates close in a couple of years no matter how litigious the parties are. A divorce which occurs early in the children's life can go on through the children's majority. A while back, i was involved in a sad case involving two parents who acrimoniously litigated the issue of custody of a special-needs child through most of the child's minority. Undaunted by the child attaining his majority, they continued litigation through the vehicle of a contested guardianship.
Further, not content with trying to destroy the spouse, such litigants, more frequently of late, then try to destroy the professionals involved in the case, filing specious complaints with the Judicial Conduct Committee, the Professional Conduct Committee and the Guardian ad Litem Board.
And, consider how children fare in these litigation disasters. Although a parent within a violent family may think they are protecting their children from this violence, 80 percent to 90 percent of these children report the opposite. in fact, one out of four times that a father murders a mother, their child is a witness.(fn4 )Even the most carefully crafted and intricately structured parenting plan is not foolproof. As the saying goes, nothing is foolproof because fools are so ingenious. Any family law practitioner with some wake behind his or her keel will relate the often recurring, malicious tricks. Mother sends son to father's barbecue with the grandparents with son dressed in rags...