Family Court May Be The Common Denominator For Many Families When Relationship
Conflicts Require Intervention, But It Should Always Be Recognized As
The Forum Of Last Resort!
California Family Courts render unique and invaluable services to people
locked in end-of-relationship struggles. Family law Judges and Commissioners
are extremely dedicated and highly trained professionals who make great
personal sacrifices when they agree to take the bench. It is hard to imagine
more challenging work. For significant portions of the population, the
only place where people can go to achieve physical and emotional safety
or win some economic equality is the local courthouse. Children in particular
benefit hugely from the protections that the system aspires to provide.
Besides judges, our county courts offer child custody recommending counselors,
family law facilitators, probation officers and many others including
courtroom staff, often at little or no direct cost to the parties beyond
filing fees (which are ever-increasing). The commitment and availability
of these workers is an example of how local governments can successfully
improve the quality of our private lives.
But the family court legal system has significant organic, practical and
fiscal limitations. Many people don't recognize, or forget, that it
is the remedy of last resort - if it is considered to be the point of
beginning, vast opportunities for self-determination are lost. The court
experience can take on a life of its own, and so be self-perpetuating.
First and foremost the system is predicated upon an adversary model for
answering disputes. The parties express and argue opposing views or stories
about themselves and the other within the framework of complex rules of
procedure and evidence that are designed in theory to encourage respect,
truth-finding, fairness and uniformity within the process. Most judges
do an outstanding job in maintaining civility and dignity during the proceedings.
Substantive laws according to statutes and appellate decisions then determine
who gets what. But whatever the outcome, it is imposed upon the parties
from outside the family itself, and it will not have taken into consideration
much beyond legalistic interpretations. It is susceptible to being swayed
by inflammatory sound-bytes, not to mention fatigue and burn-out. The
outcome is likely to be disappointing and what people say and do within
the adversarial process may gouge new wounds or keep the old ones from healing.
Second, because a judicial officer sits as the "trier of fact"
he or she is always the most important person in the room (and sometimes
a ghost in the parties' homes). A judge's job includes making
decisions in favor of the party who has met their burden of proof - that
is, the person who has established to the court's satisfaction that
one position is more likely to be the truer one (by one percent or more).
Judges do the best they can to render unbiased and carefully thought out
judgments, but they have conscious and unconscious biases like everyone
else. The lack of resources, not to mention the often difficult behavior
of the parties (and sometimes their attorneys), constricts any luxury
Several important consequences flow from these practical realities. Judicial
involvement implicitly presumes that peacemaking alternatives to adversary
litigation have failed. Sometimes that is true, but more often all that
has really happened is that Party One has said "I want it my way"
and Party Two has said "No, I want it my way." These two people
alone could not save the marriage or domestic partnership, and it is equally
unlikely that they can now agree on how to manage the delicate financial
and parenting issues without outside assistance. The fact is that when
people are ready to seek outside intervention, the first place they look
to is adversarial lawyers or the family court, not noticing they've
short-circuited alternative dispute resolution options. One or both hires
a divorce attorney (few lawyers describe mediation or collaborative options
before undertaking cases, although they are ethically required to do so)
or files a proceeding on their own; three weeks later the family's
lives are dropped like a ball of snakes into a judge's lap for untangling.
Unfortunately, while all judges promote settlement and joint decision-making
if it is safe for the litigants and for their children, they are not hired
on and paid to be mediators. They are decision-makers who are trained
to call balls and strikes, and they don't have the time to hold the
hands of people who might benefit from a little guidance.
Third, there are policy and fiscal limitations to what county governments,
and hence judges, can do. In terms of policy restrictions, few local county
courts have developed or make available any kind of mediation programs
beyond custody related matters. The budgetary crisis is begining to change
that, out of fiscal necessity. Custody mediations generally do not allow
for at most more than an hour of a custody counselor's time to read
the file, assess the parties, and then report to the court. Possibly those
individuals have had 30 minutes to interact with the parties to learn
the competing and complicated concerns. No matter how dedicated, smart,
and professional they are this is likewise a challenging task within the
Settlement and mediation programs are non-existent in some middle sized
and most smaller counties. When I originally wrote this Blog, the Indio
Branch of the Riverside County Superior Court had no non-custody family
law mediation program in place. This was odd since Riverside is possibly
the largest county in California. Because of financial restrictions, throughout
southern California when mediation programs exist they often rely entirely
upon the generosity of retired bench officers or volunteer attorneys.
One resulting irony is that the family court dockets become overcrowded
with many cases that are otherwise amenable to settlement, and this further
taxes the system and makes less money available for mediation or other
needs. Similarly, there is no option for high-conflict families other
than to force them to litigate at great cost to all, especially since
they tend to re-litigate endlessly, taking up a disproportionate share
of court resources and pressuring the time available for other families.
With the leadership of Judge L. Jackson Lucky in downtown Riverside, this
has shifted a bit since I first wrote this.
Following Judge Lucky's lead, and with the support of Indio Superior
Judge Dale Wells, we now have a simple mediation program in place in Riverside and Indio. Much more is needed.
The failure of cooperation between the judiciary and non-public lawyers
has several causes that are each difficult to overcome. First, court administrative
decision-makers seem distrustful of sharing these tasks outside the system.
Second, when it is solicited lawyers are not reimbursed for their contributions
of time. Their involvement is an unappreciated public service without
economic benefit to them, and indeed such service takes time away from
their existing caseloads (read: anxious paying litigation clients). Third,
while we sincerely proclaim that settlement is in every way preferable,
and acknowledge that it de-congests clogged courtrooms and frees up public
resources, some governmental officials still seem to consider it as if
it were a luxury item. This tracks the views of larger society, which
hasn't recognized that mediation is a core asset rather than a stop
gap, and this is true of both public and private mediation. Consequently,
private mediators are not asked to mediate for the public and receive
no systemic support. Lacking support or encouragement many potential mediators
don't take developing mediation skills seriously, especially if they
cannot also develop a private mediation practice that justifies the investment
of time and money that accumulating mediation skills quite assuredly requires.
Despite all the obvious benefits to individuals, families, fiscal conservatives
and society in general when mediation works
(written about extensively in this site but also at Desert Family Mediation Services), judicial officers and court administrators continue to resist it. This
is understandable given that mediation is a latecomer to the litigation
party, but otherwise it makes no sense. Yet there are many reasons why
mediation in any form is usually a superior alternative to government
Today it is only the sophisticated legal consumers that recognize its
potential value for themselves, largely because they are dissatisfied
with their earlier litigation experiences or hope to avoid the experiences
of others that they've observed. Some of the very ones who have the
money to fund battles between lawyers, in and out of court, see that mediation
is a much cheaper alternative or at least come to the recognition after
some great expense. This is a secret that most litigating family lawyers
know well - once the adversarial experience grinds people down sufficiently,
they are ready to begin to think about settlement. That is a good time
to bring in the mediators.
By the way, one of the powers of the Internet includes making limited demographic
or any individual tracking techniques), Google provides metrics that do
tell me what word combinations people are 'goggling' and something
about their gender, age, if they have children and their years of education.
People seeking information about mediation are uniformly over 45, more
than half are male, and most have attended graduate school.
I need to be clear that I am not blaming the courts or the lawyers as being
in some form of conspiracy to increase the costs of divorce. Government
always reflects the values of the constituency, sooner or later. Dissolution
lawyers don't so much market a product as they provide a service to
consumers who already have an expectation of what their needs are, even
if it is skewed in the sense that it comes from a place of emotional reactivity
and fear over losing money, property and kids. Until people who require
the services of lawyers become aware of non-court alternatives, they will
continue to expect the norm.
We seem to be stuck, but the good news is there is movement occurring.
My fantasies include the one about how simply having this chat will help
in a small way to shift our thinking. I hope to take mediation directly to those whose lives are the essence
of what drives the family court system. My aim is to bypass outdated and
bureaucratic thinking, and to popularize mediation as a preferred method
of dispute resolution that potential litigants know to investigate at
the outset to test whether it might be appropriate for their situation.
One way to do this is to give you an experienced lawyer's inside view
of the shortcomings of our legal system as it intersects with relationship
transitions. Another is to remind lawyers that standards of practice and
ethics require them to describe the possible benefits of mediation before
they are retained, because some do not. And another is to encourage government
decision-makers to increasingly embrace mediation within the court related
These changes are coming anyway, and for very good reasons.
Drive Your Own Divorce!
Thurman W. Arnold III, CFLS
HAPPY NEW YEAR!