The stress of a divorce comes second only to the death of a spouse. Moreover, when it comes to divorce, certain aspects of loss become slightly magnified because a person is able to act out against the other person who was involved in that relationship. The emotional state caused by the divorce process often causes people to experience impaired judgment, which makes it difficult or impossible for them to make rational decisions. They tend to forget that a family typically consists of two parents and their children and that the familial relationship does not end along with the marriage. Furthermore, people tend to deal with things, including divorce, in a manner which is familiar to them. In the case of a divorce, the familiar is going to war with each other in the courtroom (the family law court).
Often times, friends and family members are more than happy to refer the attorney that “successfully” represented them in a divorce case. Before blindly accepting such advice, it might be wise to ask the following questions: What have the familial relations been since the conclusion of that divorce? Have the parents had ongoing problems with each other with regard to the parenting and/or support of their children? When the child graduates from high school or graduate school, will the parents be able to attend the graduation party together for the sake of their child? When the child has a family of their own and wants to have a holiday event at their home, will both parents be able to attend that event? After learning the answers to these questions, you might decide that the divorce was not so “successful” after all.
Albert Einstein once described insanity as “doing the same thing over and over again and expecting different results.” Family law as currently practiced is toxic because, among other things, it destroys families. If the manner in which a person opts to divorce tends to be destructive of familial relations and the person expects a different result, is that a sane decision, or is that proof of the fact that the person is incapable of making rational decisions because of his/her emotional state?
Justice Sandra Day O’Connor has recently said, “I have been a strong advocate for alternative dispute resolution ever since I was a state court judge.” In 1984, Warren Berger, then Chief Justice of the United States Supreme Court, while speaking about the American legal system to members of the American Bar Association, said “Our system is too costly, too painful, too destructive, too inefficient for a truly civilized people. To rely on the adversary process as the principal means of resolving claims is a mistake that must be corrected.” Chief Justice Berger also stated that “The obligation of our profession is, or has long been thought to be, to serve as healers of human conflicts.”
A collaborative divorce is much like a mediation wherein the spouses each have separate legal representatives, but without the mediator. The reason that the parties do not require a mediator is that the attorneys involved have been trained in the collaborative process. It would therefore be unlikely that any of the attorneys involved would be of the “pit bull” variety. In collaborative divorce, a team is assembled of specially trained attorneys, mental health professionals, and a neutral financial specialist to assist spouses when working out sensitive custody and financial issues. A collaborative divorce may be the perfect solution for a couple whose marriage is ending and who truly value family. Most of us say that we believe in family values, but do we really mean what we say? After all, “actions speak louder than words.”
Mark B. Baer, Esq.
MARK B. BAER, INC., a Professional Law Corporation, Pasadena, CA
