Litigation Disillusionment

Any family law practitioner who has handled at least a handful of divorces has encountered the situation where the actions of the person they represent confounds them. What often stymies the lawyer is that their client seems determined to spend hundreds or thousands of dollars to secure some item that has a monetary value far less than the cost of litigation. It is the proverbial fight over the $10.00 toaster. To the husband or the wife, this results in mounting tension or frustration towards their attorney because they just do not get it. This is the point where many attorney – client relationships break down and another lawyer is sought. Starting over with a new lawyer is costly so it is worth investigating what is going on in this communication breakdown before parting ways.

In my experience, the issue of the toaster (or whatever item it is) revolves around a deep need for that spouse to be heard. The dissolution of a marriage (legalese for “divorce”) is the legal manifestation of an intensely personal and painful pulling apart of two people that were “joined together” in ways that defy explanation. But, the legal process does not lend itself in any way, shape, or form to addressing that pain. In fact, the actual purpose of a family court or role of a judge in a divorce is the expeditious resolution of conflict that the parties themselves have been unable to resolve.

This desire to be heard motivates the process imperceptibly but pervasively. Often, the husband or the wife holds on to the notion that if they just get in front of the judge and are able to speak their mind, then they will be satisfied with the outcome even if the judge rules against them. This may actually be true …. if getting in front of the judge actually allowed one to speak their mind.

However, the litigation process itself prevents the party from fully speaking expressing where they are coming from. Even though many divorce attorneys tend to be a little lax with the rules of evidence in divorce cases, there are still objections that inevitably halt testimony. There are objections to hearsay and objections to relevance and on and on. Each objection interrupts the story – their story – the deeply personal story that they trying to share with the judge. Things that matter to the person testifying cannot be said. They leave the stand with some degree of dissatisfaction because they were not heard – not fully. They step down plagued with this vague sense of, “If only I’d been allowed to say this or that, the judge would have understood.”

Not only do the rules of evidence bar the wife or the husband from speaking their mind, but the demands of many, many cases on the judge’s docket constrains the time available. Judges, even if they want to, simply cannot listen to everything. They hear enough for them to make a decision on a particular topic and then they must move the matter forward so the next set of litigants has a window of time to put forth their best arguments.

It is an axiom among divorce lawyers that, at some point or another in the court process, their client will be dissatisfied with them and the outcome. I believe this is largely because their client never felt heard. However, there is an answer to this dilemma; this tension between the need of a person to tell their story and the constraints of litigation. The alternate conflict resolution option of mediation can be, if done well, the arena where both parties walk away having been heard. I plan to switch gears and devote this blog to the topic of conflict and dispute resolution, otherwise known as mediation. Hope you join me!