Commentary: Mediation is appropriate way to settle marriage

Every time I hear about a divorce-related homicide or suicide, I am reminded of the fragility of the clients family law attorneys represent. Since I focus my entire law practice on family law, divorces included, I often find myself examining my advocacy skills and tactics, to reassure myself that I am, in fact, helping my clients, rather than damaging them further in the dissolution process. However, even the best family lawyers can become overzealous, in an effort to advance their client's legal position. In the medical profession, doctors have a mandate to "first, do no harm." We have no equivalent mandate in family law, but perhaps we should approach our cases as if we did, if, for no other reason than the vulnerability of our divorcing clients.

Many of our clients happen to be parents, who have years of interaction and co-parenting ahead of them. If we have managed to derail their parenting relationship in the divorce process, have they really gained anything? By the time the dissolution process starts, both parties are grieving the loss of hopes and dreams, related to their marriage. As they begin the litigation, each party expects to "win" in the dissolution process, and expects the other party to "lose." As a practical matter, is there any possibility of "winning" in a divorce? To me, "winning" would be a marriage that worked out; by the time divorcing clients reach us, it is normally too late for that. In the dissolution process, we are often dealing more with "damage control" than winning.

Despite the rather unsavory reputation our society generally attaches to family law attorneys, I, like many of my colleagues, worry about my clients. In my practice, I have represented clients on the verge of suicide, and, in one case, my client's former spouse took his life, a few short months after the divorce, leaving her to explain it to their children. One of my colleagues represented a client who killed his wife, during the divorce process, leaving the attorney quite shaken.

As family law attorneys, most of us are protective of our clients and have difficulty understanding why some of our opponents insist upon treating our clients as the enemy, or treating them disrespectfully in the dissolution process. That may explain why, when the American Bar Association talks of imposing a more stringent ethical code upon family law attorneys, the knee-jerk reaction from many of us is a resounding "yes."

That reaction is generally followed by a discussion of some of our colleagues, who couldn't find the "high road," even with Map Quest, and would never dream of taking it, even if they could. Let's face it: we all have our "short list" of attorneys we dislike, because of their unethical tactics, and many of the same names are on everyone's list. Those are the attorneys who approach each case as if it were a game; who want to "win" at any cost, even if it means total disregard for our ethical code. If lying, cheating and withholding information wins the game, then the means justifies the end.

Would "ethically-challenged" attorneys behave better if we had a stricter ethical code? Probably not. Those folks don't seem to be bothered by the code we have, so why would a more stringent code be of any consequence? Most family law attorneys who practice ethically, (which, by the way, are the majority), aren't doing so because of some ethical code. I think it's more a product of who we are, rather than fear of the consequences. The idea of an enhanced ethical code would be, more or less, preaching to the choir. Even so, just following the Code of Ethics is not, in my book, all that is needed to be a good family lawyer.

Although our primary function is to advocate for a fair result for our clients and protect their interests, I think we have a higher duty: to support the post-dissolution relationship for the divorcing couple, in particular, if they have children in common. How is that possible in the litigation process? It probably isn't, which suggests that litigating divorce cases may not be the best approach for parents. That approach is akin to using "weapons of mass destruction," leaving few, if any, survivors in its path. The lawyers will live to fight another day, but what about our clients? Besides leaving them considerably poorer than when they retained us, have we also, perhaps unwittingly, destroyed any possibility of "good will" in the couple's post-divorce relationship, as "collateral damage" from our advocacy? Even if we have followed our ethical code to the letter, is that really a good result? The longer I practice family law, the more I tend to think it isn't.

More and more good family law attorneys become so discouraged by the destructive effect of litigation on divorcing couples and their children, that they leave their family law practices for other, saner areas of practice. That may solve the immediate problem for the attorney, but that kind of mass exodus from family law doesn't bode well for divorcing couples. A number of couples are turning to alternate dispute resolution methods, such as mediation, and, more recently, collaborative law.

Mediation is a method whereby the parties attempt to resolve their family law issues, through a series of meetings with a neutral mediator. The parties normally seek legal advice from their respective attorneys between mediation sessions.

Collaborative family law involves attorneys and parties in a series of 4-way meetings, wherein the attorneys act as advocates for the parties, rather than adversaries. In a collaborative dissolution, the parties and their attorneys sign a written agreement that the goal of all participants is to negotiate settlement, and that the attorneys will withdraw if litigation becomes necessary.

In my opinion, both mediation and collaborative law are far more appropriate means for resolving most dissolution cases than litigation, since they tend to help couples work together to problem solve, rather than waging a war. For parents who must have ongoing contact with each other after the divorce, learning to work together for the sake of their children is an investment in creating a more harmonious future for the parents and their children.

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