It is in the field of divorce that the image of lawyers finds its most odious expression and where legal training is most disabling and counterproductive. Divorce lawyers have a terrible reputation among the lay public for being cynical, indifferent to suffering and greedy for ever-larger legal fees. There are, of course, divorce lawyers who do not fit this stereotype. But, in over thirty years in the field I have met more who do fit it than ones who do not. It is not that divorce law attracts amoral people. In fact, some of the most sensitive of students I met in law school were attracted to “family law” where they thought they could help families.
The problem lies in the juxtaposition of the adversary culture onto the changing needs of families. In the past fifty years divorce law has evolved to reflect changing perceptions of marriage. With roughly fifty percent of marriages ending in divorce, divorce can no longer be defined as socially deviant behavior. When divorce was still a quasi-criminal proceeding and was based exclusively on the wrongdoing of one spouse, there was a good fit with the adversary system, which is organized around the finding of wrongdoing.
But the fit began to fail as the concepts of marriage and divorce evolved in the twentieth century to reflect yearnings for intimacy and happiness rather than retribution for wrongful behavior. When you only had to prove that you had lived separately for some defined time or that the two of you were simply incompatible divorce was redefined to be free of fault.
One would think that no-fault divorce law would make divorce easier to obtain. But getting a divorce has become more difficult and complicated. As legislatures have tinkered with more complicated schemes for dividing property, it has become common for a divorce to take three or more years and generate legal fees well into six figures. When it gets out of hand, divorce supports legions of accountants, appraisers, actuaries, psychotherapists and social workers of all descriptions. Divorce has become a multi-billion dollar business.
A second important change is that most divorces are resolved by negotiation rather than trial. The judge is seldom the decision-maker. Instead the lawyers, as negotiators, have become more central and more intrusive. And there is little in the training of lawyers that prepare them for this role. As the lawyer becomes the surrogate for the client, he/she assumes responsibility for negotiating a settlement that shapes the lives of an entire family. Yet few lawyers know much about family dynamics or emotional process. And few lawyers understand how the negotiating positions they take affect the way the clients feel about each other. So by the time the lawyers finish with their posturing and threats there is a negotiated agreement in place but the relationship between the spouses is so poisonous as to preempt cooperation in the future. Consequently, getting divorced has as much adverse impact on divorcing families as the fact of the divorce itself. And when confronted by the emotional carnage they produce, divorce lawyers deny that their actions have anything to do with it. Rather, they insist, it is the inherent irrationality of divorcing people that accounts for all the bitterness of divorce.
Divorce mediation is the alternative to the current adversarial lawyer system that currently turns divorce into war between a couple that has come to the end of a marriage and already facing the pain of the breakup. With mediation as the means to assist in dividing assets, custody and property in a fair and disciplined way, each spouse feels well-represented. Each can hold on to their personal dignity and even remain on decent terms with their ex-spouse. They can get on with their lives that much faster and from a much healthier place.