TAKING DIVORCE OUT OF THE CONTEXT OF DISPUTE RESOLUTION

• DOI: http://doi.org/10.1111/j.174-1617.2004.tb01333.x
• Author: Susan Zaidel
• Date: 01 October 2004
• Published date: 01 October 2004

READER COMMENTARY

TAKING DIVORCE OUT

OF

THE

CONTEXT

OF

DISPUTE RESOLUTION

Susan Zaidel

It has been suggested that

a

new system be developed

for

handling family problems, such

as

divorce and child protec-

tion-a system that would replace the adversarial court system. The author suggests going one step further: an alter-

native system that would take divorce

out

of

a

dispute resolution frame. The Danish system is described

as

an exam-

ple

of

an administrative approach

to

divorce.

Keywords:

reframing divorce; divorce frumework

A previous issue of

Family

Court

Review,

presenting models

of

interdisciplinary collabo-

ration in family law, was presented as a

look

toward the future for improving the family dis-

pute resolution system. The opening article by Gregory Firestone and Janet Weinstein,

which pointed out the inadequacies of the adversarial court system for handling family prob-

lems, proposed that a new system be developed within the community for handling divorce

and child protection.’ Although the idea of a “comprehensive dispute resolution system for

families in transition,” in which court litigation would be just one option, is certainly a move

in the right direction, it does not go far enough. What is needed is

a

much more radical

change. Divorce needs to be taken out of the context of dispute resolution and “reframed”

as

an administrative process, comparable to the administration of marriages. Family courts

may still be needed, but for a small minority of cases only.

Out of disillusionment with the handling of divorce in the adversarial court system, we

have developed an impressive variety of means for “improving” a defective system: for

example, the creation of family courts to handle family cases somewhat differently than

other civil lawsuits; mediation, with the courts and in the community; the use of mental

health professionals for custody evaluations; parent-education programs; parenting coordi-

nators for high-conflict families; even the “domestication” of attorneys, who now practice in

less adversarial ways (collaborative law and now “cooperative law,”

as

Lande and Herman

described in their article’), and the proposal to use

ENE

in divorce disputes.’ All of these

attempts at “renovating” an unsatisfactory process-as we often renovate an old building

that does not meet our needs-are welcome improvements, developed with the best of inten-

tions to better meet the needs of divorcing families. However, sometimes it is better to

demolish the old building and build a new one, without having to fit the improvements into

the constraints of the old frame.

Courts were the natural place for handling divorce requests when one spouse had

to

prove

that the other spouse was guilty of behavior defined by law

as

grounds for divorce. With the

advent of no-fault divorce laws, the court context should have become “extinct,” but the

framework for society’s handling of divorce remained unchanged. It has gradually become

FAMILY COURT

REVIEW,

Val.

42

No.

4,

October

2004 678-680

DOI:

10.1

177/1531244504268700

0

2004

Association

of

Family and Conciliation

Courts

678