Can this Relationship Be Saved? The Legal Profession and Families in Transition

• Author: Pauline H. Tesler
• Published date: 01 January 2017
• DOI: http://doi.org/10.1111/fcre.12261
• Date: 01 January 2017

CAN THIS RELATIONSHIP BE SAVED? THE LEGAL PROFESSION

AND FAMILIES IN TRANSITION

Pauline H. Tesler

Looked at from a social problems rather than from a procedural justice perspective, courts perhaps ought to have quite a

small role to play in the legal system’s normative response to families in transition, particularly given the fragmentary

nature of our court system, shrinking court budgets, and the difficulty of implementing broad, durable changes even local-

ly, much less nationally. Clients’ needs seldom appear to them as legal problems and more often as practical, financial,

and relational issues, but the underlying professional norms and values taught in our law schools ignore considerations

unrelated to the making and proving of a legal case. The practicing family law bar appea rs to be the best place for efforts

at broad scale reform of how the legal profession meets the needs of families in transition. There are no institutional bar-

riers to teaching integrative competencies to practicing lawyers, and the impact of fairly low cost strategies could be

substantial.

Key Points for the Family Court Community:

Clients experiencing divorce do not typically perceive their needs as legal, but lawyers are taught to bring an adversari-

al legal construct to bear on the client story that ignores their non-legal human needs.

Lawyers can be taught to do a better job by learning a broad spectrum of integrative, humanistic skills and competen-

cies but law school curricula at best treat such courses as marginal, not core.

Neither law schools nor courts are the best places for concentrating efforts to change the response of the legal profes-

sion to families in transition. The institutional barriers to change in both contexts are substantial.

The family law bar, in contrast, has demonstrated both leadership and receptivity to change in advancing both media-

tion and Collaborative Law.

A change strategy based on continuing education in integrative law vectors would be comparatively inexpensive to

implement, would be welcomed by the family law bar, could have substantial impact, and would encounter few if any

institutional barriers to change.

Keywords: Adversarial Law Practice; Barriers to Change; Conflict Resolution; Dispute Resolution; Divorcing Couples;

Educating Lawyers; Empathy; Families in Transition.

I. INTRODUCTION

Few would deny that the American legal system’s response to families experiencing breakup

and restructuring must change. Where and how to focus change strategies is murkier. Much ink

has been spent on the poor fit between the needs of families in transition and the capacities of our

court system to provide help, and on the adversarial habits of lawyers that exacerbate rather than

heal conflict, and on the failure of our law schools to prepare family lawyers with the competencies

needed to be helpful rather than harmful when working in the realm of broken relationships. Plenty

has been written about how family court processes might be changed to serve families better—or

at least, to do less harm. But it is useful to remember that if we were to start fresh and design a sys-

tem for delivering professional dispute resolution services in this country to families restructuring

because of the breakdown of an intimate primary relationship,

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no one aware of this body of litera-

ture would come up with a system remotely resembling our current adversarial, fragmented, and

underfunded hodgepodge of court-centric approaches that seem to differ only in the degree of unin-

tended harm they inflict upon the people they are meant to help. The reasons for that are also good

Correspondence: phtesler@integrativelawinstitute.org

FAMILY COURT REVIEW, Vol. 55 No. 1, January 2017 38–58

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C2017 Association of Family and Conciliation Courts

reasons for looking elsewhere to effectuate meaningful change in how family lawyers help clients

through divorce.

Because our state courts are highly decentralized, with power to implement or resist change dis-

persed down to the level of semi-autonomous individual judges and courtrooms governed by more

than fifty separate sets of laws and rules, it seems improbable that tinkering with courts and court-

centric programming can accomplish sweeping change in our culture’s institutional response to

divorce anytime soon.

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Additional barriers to change include vast numbers of unrepresented parties

swamping family court dockets at the same time that budgetary resources to run those courts have

shrunk. Thus, with many state courts already facing too few judges, insufficient court staff, and not

enough money to answer telephones, pay court reporters, or buy pencils, proposals for change that

involve delivering a richer or better mix of professional services to families in transition via the court

system, desirable as that surely would be, seem doomed.

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There are better places to focus change efforts. This article begins with the proposition that before

we can settle on the best policy recommendations for reengineering the legal profession’s services to

divorcing families, we need to step outside the social constructs

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about lawyers and courts that invisi-

bly constrain our thinking. We need to ask some really basic questions, starting with: is divorce, like

a fender-bender or a breach of contract action, a zero-sum matter that can be resolved by an efficient

choice between clashing bundles of individual rights and entitlements followed by a simple transfer

of resources? We know it is not.

5

Family restructuring involves a complex multiplicity of financial

and relational issues, driven by powerful emotions of traumatic dimensions that often overwhelm

parties’ thinking and coping capacities as well as their physical and mental health. It often requires

ongoing parenting of children after judgment, calling for nuanced recalibration of solutions as chil-

dren grow up, parents relocate, and blended postdivorce families form and come apart again. More-

over, divorce and family restructuring implicate interests that go far beyond the individual spouses,

affecting not only children, but also extended family and friendship networks as well as significant

relationships in the community and workplace. Badly managed divorces

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generate consequences that

affect public health, community engagement, the workplace and economy, and the raising of a

healthy next generation in ways that extend far beyond what any divorce court’s orders can address,

making the broader community itself an invisible stakeholder in every divorce. All of this makes

divorce and other family law matters sui generis and uniquely unsuited for location in the institution

assigned to handle them: courts.

A sensible starting point for developing a change strategy is to consider what kinds of needs most

divorcing couples and families generally experience, and what normative mix of professional serv-

ices, delivered in what context, might best meet those needs, instead of working backwards by

accepting existing service delivery systems, resource constraints, and the limitations and public

resentment of the legal profession as givens and then seeking workarounds. With awareness of the

human and legal needs implicated in divorce, we can then think about how to prepare lawyers—and

other professionals—to do their part well, considering what they need to know, and how and where

we can best teach the necessary content and skills to them. With that knowledge, we would have a

basis for designing systems through which effective family-friendly professional services could best

be delivered to families in need of help, regardless of wealth.

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At that point, we would be in a posi-

tion to examine what laws, rules, and ethical standards that govern the practice of law would need to

change in order for lawyers to participate effectively in such service delivery systems.

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Only then

would it make sense to consider where and to what extent the court system should play a role. As

scholar Deborah Rhode puts it, “To what [justice] should Americans have access? Is it justice in a

procedural sense: access to legal assistance and legal processes that can address law-related con-

cerns? Or is it justice in a substantive sense: access to a just resolution of legal disputes and social

problems?”

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A substantive justice approach that addresses divorce through the “social problems”

lens might require very little involvement in or access to courts, and that is the perspective this article

takes in thinking about how the legal system could do a better job of helping families through

divorce.

Tesler/THE LEGAL PROFESSION AND FAMILIES IN TRANSITION 39