By Curtis J. Romanowski, Esq.
The traditional adversarial system continues to draw criticism when aggressively applied to family law cases. Apart from the inefficiencies, impracticalities and costs of such approaches, the reasons for abandoning these poorly conceived methods of dispute resolution should be obvious:
1. Combative fires tend to be fanned and magnified with each contested Court proceeding, thereby creating the potential for long-term conflict;
2. Negative emotions and feelings of the parties are allowed to significantly impact the attorneys' actions on behalf of their clients;
3. The potential for professional ill-will between attorneys and professional experts is created, while heightening the potential for gross animosity between attorneys and opposing parties.
The litigation process influences the attorney to take every available advantage for the client, put the client's case in the best possible light, not offer evidence that is harmful to the client (with some exceptions), and challenge everything possible, in the opponent's case. The opposing attorney has the same job.
Most attorneys in the adversarial process are so caught up with the client's "cause," that the attorney can lose sight of any and all sense of objectivity, which is required to analyze both sides of an issue. Many attorneys are all too willing to believe the "emotional" version of the client's facts, and not inclined to scrutinize the information for false or misleading claims.
The contested dissolution of marriage case is a family disaster waiting to happen. As difficult and bad as things seem to be during the litigation of a family law case, the real battle, the real conflicts, are yet to be realized. After the Final Judgment is entered whereby a Judge determines contested issues, if there are one or more minor children or any ongoing financial support matters or any other issues over which the Court has retained jurisdiction, an odyssey of struggle and conflict will surely ensue for as long as the Court has jurisdiction over the parties and subject matters.
What can be done to avoid this "never-ending" conflict resulting from litigating family law issues? Probably nothing immediately, but over a period of time, changes can occur which will result in most of these kinds of issues not being litigated. However, change is slow in the traditional legal arena where attorneys are trained and experienced in relying upon precedent and stare decisis.
Significant changes in process are required; however, the professionals practicing in the adversary system may be resistant to change and unwilling to consider different and creative means in representing a family law client. Also, such creative and innovative changes in process may appear to be either unethical or in violation of the attorney's duties to fully represent the client, thereby further delaying change.
As time progresses, changes must occur in the "system" which will result in a process which is more practical, simplified, less financially expensive, less time-consuming and less confrontational. Moreover, changes are occurring whereby legal procedural rules in many states now require alternate dispute resolution at various stages of litigation, as well as required financial disclosure and supplemental disclosures periodically during litigation.
However, the real change necessary to simplify and create an atmosphere of less confrontation shall result from the individual professionals taking appropriate action - the Judge, the attorneys, the other expert professionals, such as mental health professionals and financial professionals, called upon to assist one party, the other, or both parties.
Each professional person coming into contact with the parties in the family law "system" has a significant opportunity to "assist" the party/client/patient, rather than to "advocate." The goal of the family law professional should not be to represent his or her client's interests blindly, but to be mindful of the client's best interests in light of the entire family's long-term interest, both financial and emotional. If children are involved, their interests must be paramount. If there are financial issues, they must be approached with a sense of objectivity and fairness to both sides.
Most parties arrive in the family law "system" via the divorce attorney. Some persons will have contact with a mental health professional or clerical member. Others will have discussions with their accountant, family physician or other trusted family friends. Yet, it is the attorney who most often has the first real opportunity to change the way the system operates.
The first contact between the attorney and client is critical and will probably set the parameters of the relationship between the attorney and client throughout the entire case. The attorney can easily take sides with the client, support the client in every way, and begin planning a strategic attack on the other side at this beginning point. Or, the attorney can sit back and listen to the client (listening is, of course, an excellent communication technique). At some point, however, the attorney must ask some questions, explore the facts not being volunteered by the client, and inform the client of reasonable expectations notwithstanding the client's feelings, wishes and concerns.
A problem-solving approach would include:
1) Assessing whether the client, in fact, needs an attorney at this point. Is the marriage really over? Is it realistic to consider saving the marriage?
2) Counseling that children are not to be "used" as pawns. Their best interests must be considered, which normally means regular, frequent contact with both parents.
3) Encouraging or discouraging communication between the parties, depending upon the relationship and feelings of the parties toward each other.
4) Avoiding any action that will result in antagonizing the other side or in engendering distrust. Typically, an attorney's letter articulating his or her client's grievance or position may result in additional ill-will and additional disagreement between the parties. Consider picking up the telephone and talking with the opposing lawyer first regarding sensitive and potentially confrontational issues.
5) Treating the other side with courtesy. Try to overlook actions that will appear to be, or are, in fact, uncooperative or insulting. Instead of responding in a like fashion, the attorney should start to attempt cooperation. Avoid emotional reactions and deal with the factual issues logically.
Article Tags: Success in Divorce, separated, attorney, lawyer, confrontations in custody
About the author
Curtis J. Romanowski, a Family Law "New Jersey Super Lawyer", limits his practice to NJ Divorce & NJ Matrimonial Law, NJ Child Custody Law & NJ Family Law. Licensed to practice law since May 1980, he is the Chairman of the Collaborative Family Institute, LLC, an organization dedicated to positive transformation of divorce, child custody & parenting disputes in America. Romanowski is a Court Appointed Chancery Division Mediator, Matrimonial Early Settlement Program (ESP) Panelist & Parent Coordinator / Parenting Coordinator. He is included on the Presiding Judge’s list of Counsel for Children & Guardians Ad Litem. For more information about Romanowski please visit his website at http://www.divorcenewjersey.com