by Steve Erickson
Most critics of our present adversarial family law system focus on the overly aggressive family law attorney who uses sharp tactics and hostile methods of representation, thereby aggravating an already difficult situation. They suggest that we should somehow find a way to reign in these few rogue family law gladiators (they exist in every community) and perhaps use more ADR procedures, or other early intervention steps to avoid trial, such as early case conferences with the judge or more involvement of parenting consultants, guardian ad litems, and a host of others in an effort to humanize and streamline the legal system as it serves families in crisis.
Over the years, many failed attempts have been made to lessen the sting of the adversarial system for those who must use the court for custody, support and property division issues. When I represented my first divorce client in 1973 as a young student attorney, we had a fault-based system, my client was the plaintiff, and we had to bring in two witnesses to testify that the other spouse had engaged in a course of cruel and inhuman treatment. In those early years, before I met Jim Coogler and heard the words “divorce mediation,” I participated in an 18-day custody trial. Today, we call them co-petitioners and, although all states purport to have adopted no-fault divorce laws, go down to any courthouse in any county and you can still witness intense fault-finding battles. We call it a custody proceeding. We all have had couples who wander into our mediation practices and relate a story of starting out trying to stay cooperative, but then falling into the hands of lawyers who encourage extreme positional stances and take other steps to chip away at their fragile trust and create fears and contested battles. I used to think that these were couples who just could not ever get their act together. But as soon as I gave them a different environment and encouraged them to attack problems rather than each other, they began to recover and do fine.
Try as we might, we have come to the point where we must now admit that we can no longer tweak, adjust, use more ADR, try to get more sensitive judges or work to train lawyers to be less adversarial. We must now recognize the contaminating and toxic nature of the entire adversarial court-supervised divorce and custody process and begin to move divorce completely outside of the court’s grasp. We must move divorce and other family problems outside of the courts.
We must do this because the adversarial system is just that — an adversarial system that creates a contest between the two parents. It is good at one thing and one thing only — finding right and wrong! Our friends in the behavioral science professions teach us that finding right and wrong is the death knell of building healthy relationships, and building healthy relationships has to be the backbone for effective co-parenting of children in separate homes.
Our colleague, Bill Eddy, points out so aptly that Court’s are not in the business of teaching cooperation, nor are they equipped to do so. And yet, families in the crisis of divorce or parenting disputes need help in learning how to be cooperative.
We are now at the point in our accumulated knowledge where we need to admit that the adversarial process creates a toxic river that drowns every mother, father, husband, wife and child who wades into it.
Extreme, you say? Anti-attorney, you say? Hostile, you say, to the hard and honorable work of sensitive, capable, and honest judges, attorneys, and others? Certainly, all who work in the current adversarial system of divorce are trying to do the best they can, because they want to do what is right. They, in fact, are honorable and decent people who are not out to harm families. But, all important social movements in history have needed a bold initiative that harnessed the public’s discontent and moved society to embrace a better path. It is time to make our public statement that such an initiative is not only needed but long overdue. Mediators will be attacked and vilified for what will be called self-serving and misguided efforts. But mediators, along with frustrated judges, attorneys, therapists, clergy and consumers of the system, must band together to create the change.
I am convinced that we will never make family-centered mediation a mainstream choice until we initiate this discussion and then work towards making it a reality for the estimated 100,000 children a year who are directly brought into the court system, and for the 1.2 million couples each year who divorce, and for the millions of other never-married parents and post-decree couples who are forced to needlessly enter the court system and fight against each other.
Stephen K. Erickson, J.D., is one of the founders of the original Academy of Family Mediators, started in 1980, and is a Founding Board Member of the Academy of Professional Family Mediators. He has practiced exclusively as a family mediator since 1980. He also helped create the first 40-hour divorce mediation training that took place in 1981, and he continues to write, teach and mediate.
This article was originally published in The Professional Family Mediator, Spring 2013.