The Family Lawyer's Role in Preventive Legal and Conflict Wellness

• Author: Forrest S. Mosten,Lara Traum
• DOI: http://doi.org/10.1111/fcre.12260
• Published date: 01 January 2017
• Date: 01 January 2017

ARTICLES

THE FAMILY LAWYER’S ROLE IN PREVENTIVE LEGAL AND

CONFLICT WELLNESS

Forrest S. Mosten and Lara Traum

Parties often find themselves in court after the escalation of a relatively simple miscommunication. Where divorcing parties have chil-

dren in common, they find themselves to be lifelong litigants, repeatedly returning to court to alter terms or vindicate a past loss in a

recurring parental argument. Education and early intervention can help parties flag existing conflicts before they spiral out of control.

Preventive lawyering can identify possible issues and avoid conflicts before they occur. In this article, we show how family lawyers

can redirect their attention from acting as postconflict professionals to acting as preventive legal and conflict-wellness providers.

Key Points for the Family Court Community:

Legal conflicts could be averted if lawyers focused on preventing problems at the earliest stage possible.

Preventive lawyering can identify possible issues and help avoid conflicts before they occur.

It is important for family lawyers to redirect their attention from acting as postconflict professionals to acting as pre-

ventive legal and conflict-wellness providers.

Keywords: Alternative Dispute Resolution; Conflict Prevention; Family Dispute Prevention; Family Law; Legal Health;

Legal Wellness; and Preventive Lawyering.

I. INTRODUCTION

Family law is generally viewed as a dispute, conflict, and lawsuit practice.

1

If parties consult with

attorneys at all,

2

they only do so after a rift has occurred, striving to win an argument via adversarial

posturing or, at best, to deescalate a problem that has already surfaced. Alternative dispute resolution

processes such as negotiation, mediation, and collaborative practice, while certainly better for fami-

lies than litigation, take place only after an actual dispute has erupted.

Therefore, postconflict lawyering is the norm.

3

The same is true for less adversarial interventions,

even if less adversarial processes become Primary Dispute Resolution (PDR).

4

However, if the legal

system were shaped around the needs of families, rather than the traditions of an adversarial system,

the considerations would be quite different.

5

The role of lawyers would be that of preventive profes-

sionals, primarily concerned with averting family conflict and only faced with helping family mem-

bers resolve conflicts when dire circumstances arise.

6

We believe that families, and society at large, would be better served if lawyers focused on pre-

venting problems at the earliest stage possible.

7

Where courts are currently struggling to accommo-

date overcrowding and are unable to handle their dockets, parties often find that it was the escalation

of a relatively simple miscommunication that landed them in court in the first place.

8

Where divorc-

ing parties have children in common, they find themselves lifelong litigants, repeatedly returning to

court to alter custody or child support terms, punish an ex-spouse for remarriage, or simply out of a

desire to vindicate a past loss in a long-term, recurring parental argument.

9

Education and early intervention can help parties flag existing conflicts before they spiral out of

control.

10

Preventive lawyering can identify possible issues and avoid conflicts before they occur.

11

When lawyers act preventively, they can maximize opportunities for families.

Correspondence: laratraum1@gmail.com, mosten@mostenmediation.com

FAMILY COURT REVIEW, Vol. 55 No. 1, January 2017 26–37

V

C2017 Association of Family and Conciliation Courts