Early Mediation of Family Law Cases the Adversarial System Is Ill-suited to Process Marital Breakups

• Jurisdiction: California,United States
• Citation: Vol. 36 No. 2
• Publication year: 2014
• Author: Honorable Judge Victor Bianchini and Cameron O. Flynn
• topic: Family Law,Civil Procedure

Early Mediation of Family Law Cases The Adversarial System is Ill-suited to Process Marital Breakups

Honorable Judge Victor Bianchini and Cameron O. Flynn

Judge Bianchini has served continuously as a judge for40 years. He is a retired Superior Court judge with extensive experience in family law. He is currently a mediator and arbitrator with Judicate West in San Diego mediating and arbitrating complex civil and family law cases. He is also a retired U.S. Magistrate Judge on recall to the Eastern District of Washington, the Central District of California, and the Southern District of California on a part-time basis.

Cameron O. Flynn graduated from Washington and Lee University School of Law in 2012. Following that, he worked as a Law Fellow with the Washington & Lee University School of Law. He is currently a Law Fellow with Professor Robin Fretwell Wilson at the University of Illinois, College of Law where he has been actively researching, writing, and editing works on current topics such as same-sex marriage and the Patient Protection and Affordable Care Act.

For those unfortunate enough to experience it, divorce is one of life's most stressful experiences.¹ Those of us in the legal profession whom are divorcing couples don't need psychiatrists to tell us this. Indeed, Justice Donald King of the California Court of Appeals once famously said that, "Family law court is where they shoot the survivors." Yet, as family law judges and practitioners, we must remember that we preside over a process considered by many mental health professionals to be a poor way to assist couples through the often painful process known as the Dissolution of Marriage. Our system of laws and statutory processes, however, require the state provide a forum for resolving disputes that the parties cannot settle on their own. Many practitioners defend the legal process as the only way for couples who are otherwise unable to agree on the many issues facing them during the dissolution to end their conflict. Thus, couples who, according to conventional wisdom, are so mired in the pathology of their conflict require a judicial officer to make the decisions they are unable to make themselves.

As one consequence at the conclusion of a family law trial, many couples have difficulty accepting the outcome. They are unable to move on with their lives free of rancor and even hatred. Many professionals focus blame on the courts. Indeed, some experts in the mental health field believe the "nature of the adversarial system is the primary source of the pathology that flows from divorce."² These experts argue that the adversarial system shapes the conflict so as to interfere with the "adaptive behavior" necessary to successfully deal with the challenges of a divorce.³ These views are not intended to denigrate the hard-working jurists and practitioners who toil in the trenches of the family law courts, sincerely trying to help couples terminate their relationships and fairly settle their present and future economic and custodial issues. Rather, the literature appears to conclude that courts are trying to do their best within a system that is not ideal for the resolution of family law cases—cases that commonly have high levels of emotional and psychological stresses.

This article focuses on the importance of beginning the collaborative process early in order to bypass some of the chronic obstacles that impede the adaptive behavior necessary for the future well-being of divorcing couples. The collaborative process may encompass mediation, collaborative law, and early neutral evaluation. Each of these methods has both advantages and disadvantages with respect to time, cost, and administrative efforts by the courts. Still, any of the collaborative methods is superior to resolving the dissolution of a marriage by the adversarial process.

Disadvantages of the Adversarial Process:

How does the adversarial system contribute to the pathology that flows from divorce? Although settlement rates are high in family law proceedings, the lawsuits are fraught with procedures that exacerbate the dysfunction endemic to divorcing couples.⁴ Consider the parties, often filled with anger, loathing, and even rage. They will routinely try to manipulate the legal process to their own advantage.

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As we know, the adversarial system is founded on the theory that in a contest between two committed, competent, well-prepared advocates, the truth will win out. Ideally, the party who should prevail will prevail. Unfortunately, this "victory" model is not necessarily ideal in family law cases. Many factors skew the adversarial theory when viewed through the prism of family law, where critical psychological consequences to both parties and any children involved are at stake. Disparate attorney skills and competence, diverse personalities, levels of preparation, the quality and experience of the judge are all risk factors embedded in the adversarial system. Combine that with the unique issues before a family court, it can often produce results that are objectively unfair.

During trial, many fine and qualified family lawyers are ill prepared to try a case. Statistics show that approximately 95 percent of family law cases settle before trial.⁵ Because so few cases actually go to trial, it is difficult to gain trial experience and stay current with the rules of evidence. I recall sitting on a case involving a legendary family law attorney who was simply at sea against a well-prepared opponent who knew the rules of evidence. And even worse, if the attorneys cannot get along with one another, communication and the likelihood of the couples...