Last weekend I went to a family law reform conference just to hear what parents from many parts of the USA would say. What they said was disturbing.
The conference was hosted by the Director of Divorce Corp, a documentary about the fifty billion dollars per year divorce industry in this country. Obviously the parents who came were not a random sample of divorced or divorcing parents. They were people who were upset about what had happened or was still happening to them and to their children. Nevertheless, they and the speakers made a persuasive case that things are drastically wrong with the way courts handle divorces.
Example: A lawyer’s usual job is to be a zealous advocate for his or her client’s interests. If two spouses hire two lawyers, the lawyers are likely to inflame existing tensions, thereby making things worse for their clients’ families. They are also likely to file unnecessary motions and make unnecessary demands for production of documents and written answers to formal interrogatories, because the more time they spend on the case, the more they get paid. They drain the families’ bank accounts for their own benefit, not for the benefit of their clients.
Where judges are elected, lawyers contribute to their election campaigns. Those lawyers then get preferential treatment for themselves and their clients. Where judges are appointed, they are often connected and obligated to a political machine and so give favorable treatment to people who have the right political connections.
There is no system of checks and balances moderating what lawyers and judges do. They regulate themselves with little or no external oversight.
According to this set of parents and speakers, mental health professionals involved in custody evaluations also add to stress levels in the family and drain the family’s financial resources, despite having no proof that the custody decisions based on their recommendations are indeed best for the children involved. There have been no longitudinal studies of the question.
Mediators also came under attack. A number of parents said that the mediators were as bad as the lawyers, judges, and mental health professionals; a judge ordered you to meet with them, and then they bullied you into agreeing to terms that were not really OK with you. This criticism obviously bothered me, so I asked for more detail. It turned out that the people who called themselves mediators in these cases were usually retired judges conducting very-high-pressure settlement conferences. What they do may be what some couples need, but they should not be allowed to call it mediation. In my state (Virginia), mediation is defined by law as a process that respects the parties’ rights to self-determination.
Real mediation is a confidential process in which a mediator facilitates communication between the parties and, without imposing solutions, helps them develop a mutually acceptable resolution of their issues. The mediator acts as a facilitator, not as an advocate, judge, jury, counselor, or therapist. The mediator helps the parties identify issues, reduce obstacles to communication, negotiate constructively, explore alternatives, and develop voluntary agreements.
I did hear some good news at the conference. Over 85%, maybe more than 95%, of divorcing parents make their own decisions about parenting schedules (which are still in many places called “custody” and “visitation,” terms that sound more appropriate for prisoners than for children). They do not surrender their parental authority and leave the question for a judge to decide.
Several states have enacted or are considering legislation that will reduce some of the problems with how courts handle divorce. In North Dakota, for example, all cases involving children are referred to real mediation, and the state pays the mediator.
This article is for informational purposes only. Nothing here should be construed as legal advice. The author, Virginia L Colin, Ph.D. is a Professional Family Mediator certified by the Virginia Supreme Court. She is not an attorney or a therapist.
