by Sandra Joan Morris, Certified Family Law Specialist; Member, American Academy of Matrimonial Lawyers
Seltzer Caplan McMahon Vitek
Courts evolved long ago to provide an alternative to self-help and violent solutions to disagreements. Both sides submitted their positions, and a Solomon decided how to resolve the dispute. Determining a property boundary, or allocating fault and awarding funds might not go too badly, but dividing up a baby or deciding deeply personal issues, can. Resorting to litigation and court is a default position, the one last thing to try when all else fails, short of the self-help we call taking the law into your own hands. The question is, is court the best way to solve problems? It took me 44 years as a trial lawyer, but I have come to see that the alternative to settlement is litigation, not the other way around. And of the settlement methods I have used in the last two years, Collaborative Process has proven to be the most successful.
We have come to look at court suits and litigation as the inevitable recourse for a solution, forgetting that it requires turning over to a stranger who does not know you, your life, your family, or your history, the control of what will happen next. That stranger may have little or no knowledge, experience or interest in your area of the law, or even in judging. That stranger may have biases, implicit or explicit, that no one knows about, that will affect their own perception of what they see and hear.
There is the fantasy and misconception that somehow a judge will be able to determine the true facts and make the right decision based on the correct interpretation of the law. The reality is that there are no true facts as to events, there is only the perception of the facts. Over 2,000 innocent prisoners so far have been released from incarceration based on subsequently discovered scientific evidence, because witnesses misremembered, misidentified, didn’t see things correctly, and juries and judges erred. The Rashomon effect is described as the contradictory interpretations of the same event by different witnesses to it. It does not require that the witnesses have an evil intent or desire to lie. The case books are filled with cases that were judged incorrectly or in which the law changed unexpectedly.
Trial lawyers know that everything is perception, and they know that their job is to create in the judge a perception of a narrative that helps their client in court. It may not be true, but it will look and sound true.
This requires the parties in a litigated matter to state their case to the court in the way that is most helpful to themselves, and the least helpful to the other side. The judge then tries to figure out which person or witnesses sound the most like they are telling the truth. This is all done in a public forum for all the world to see and hear. In family court the process usually takes two to seven years, and a lot of money in fees, to conclude. Litigants on the opposite sides of a case do not like each other better after this process. It is asking a lot to expect that after it is over, the two parties will somehow be able to put the case behind them and go forward to co-parent children, or show up at family events at the same time, in a civil and respectful way.
There are better ways to solve problems than merely an alternative to violence. There are ways to reach creative solutions that work for the family going forward in a humane and respectful way. There are more economical ways to conserve resources for your families, rather than providing them for your lawyers’ families. I used to tell my litigation clients, you can send your children to college and settle this case, or you can send my children to college and litigate it. The better way to solve the problems is through a negotiated settlement. This can be facilitated by sitting down and talking, or having the assistance of a neutral mediator, or through the team approach of the Collaborative Process.
The least well known to most people, but the most effective, is the Collaborative Process. The reason why it is so effective is that all of the persons on the teams are trained the same way, and are dedicated to using their different skill sets to helping the parties reach their own informed settlement based on their respective needs and interests. The parties are in control of the outcome, and are assisted by the Collaborative teams to arrive at solutions. It is a confidential, respectful process that empowers both parties. It rarely takes more than a year to complete, and the cost for the assistance of all of the team participants is far less than the fees and costs of the litigated case. The parties leave this process feeling intact, and with skills to assist them if they need to interact in the future to work through new issues that might arise.