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Why Court Really Should Be a Last Resort

Why should I use a lawyer as a last resort and use a mitigator instead?
(4 minutes 32 seconds read)

Mark Baer
Mark Baer is a lawyer, mediator and conflict resolution consultant.

Why Court Really Should Be a Last Resort

Conflicts of any type can be resolved through either force or diplomacy. In legal disputes, parties try to exert force on each other through the courts.

“We call it an adversary system, but a better term would be a coercion system,” says family court Judge Bruce Peterson of Hennepin County, Minneapolis. “The parties bash each other in order to persuade the judge to coerce the other person to do something they do not want to do,” The threat of having a judge coerce “a person to do something they do not want to do” unless they agree to certain terms, is itself coercive.

Furthermore, as Vincent Cardi explains, such a coercive approach is a form of violence. In fact, in 2014, the Wake Forest Law Review published his article titled The Law As Violence: Essay: Litigation As Violence. In that article, Cardi sets forth definitions of violence which involve nonphysical actions. He also lists synonyms for ‘violence,’ such as ‘coercion, compulsion, constraint, duress, pressure,’ terms that can characterize the litigation process, as well as words of violence used by practicing lawyers to describe their work. He then examines the effects of “physical assault on people who have clearly suffered physical violence and comparing these effects with the effects experienced by those involved in civil litigation” and establishes that “litigants commonly suffer emotional damage similar in kind and intensity to the emotional damage suffered by victims of physical violence.”

Cardi then concludes, “Making lawyers and the public more aware of the serious psychological harm to those involved in litigation is a moral obligation of the profession and would likely lessen the harms over time. As attorneys, we each have a moral obligation to know who will be hurt by our actions and a professional obligation to tell our clients of the harm that will likely accompany litigation.”

Meanwhile, stress is a pain and a pressure that seeks relief, and sometimes, tragically, release from the pressure is expressed in violence. The American Bar Association acknowledges, for example, that in child custody battles, reports of domestic violence are common, and by some estimates as many as 50 percent of child custody disputes involve domestic violence.

If that’s not bad enough, continuances and other delays are typically considered “harmless” by those working within the legal field – but are they, really? Forcing suffering people to endure frustrated expectations and prolonged ambiguity, as the family law system routinely does, is unquestionably – if passively – cancerous, and can be a real trigger for violent behavior. In fact, in his article, Cardi states, “Professor Daniel W. Shuman points out studies showing that delays in the litigation process are a particular cause of psychological harm to litigants.”

While it’s easy to argue that such violence can be attributed to the essentially unbalanced state of the individuals, this argument avoids dealing with the fact that the legal system aggravates the possibility that fragile people under enormous stress will lose control. It is a grim reality that those who choose to use the traditional system of litigating divorce through family court will continue to face situations that exacerbate, rather than lessen, the great pain and stress of splitting a couple or family. And some of them, tragically, will resort to violence.

Yet, despite the violent nature of the adversarial process (including negotiations handled in a competitive manner), the likelihood of psychological suffering by the parties themselves, and the potential for it to cause or otherwise increase the level of domestic violence, typical attorneys not only fail to advise their clients of such risks, but also fail to inform them of non-adversarial approaches.

As such, in his article, Cardi stated as follows: “Because an awareness of the likelihood of psychological suffering could be expected to deter some clients from filing suit [aka litigating], attorneys have a financial incentive not to advise the client of these problems. A court rule requiring attorneys to inform their clients of the serious psychological harms that often accompany litigation might be appropriate.”

In his article titled, Unbundled Services to Enhance Peacemaking For Divorcing Families that was published in the July 2015 edition of Family Court Review, Forrest S. Mosten stated as follows:

“Even if a client wants to avoid court (as most do), few clients are informed by their family lawyer that there may be other lawyers in the same community who do not litigate. Further, there is rarely a lawyer-client discussion about the impact on the client of having a lawyer whose income and professional view of client care may be heavily impacted by training, participation, and confidence in the litigation process. It is not unusual for professionals to bias their advice based on the approach and services that they offer… [W]hile they endorse settlement, many litigators readily recommend and utilize the courts as a key tool in their professional approach. Adequate informed consent should require that lawyers who litigate to discuss the possible availability of lawyers who are not also providers of litigation services. Lawyers who litigate should offer a discussion of the benefits and risks of utilizing a lawyer who litigates compared with one who does not.”

This is why many of us, myself included, try and educate people of the importance of learning and understanding the various processes and approaches available for handling divorce, family law matters in general, and any other types of conflicts and disputes before moving forward and even scheduling consultations with attorneys and other professionals for assistance.