Changing Old Ways for the Better - Family Court

I recently read a book by Atul Gawande titled “Being Mortal.” It describes the history behind the American medical system’s care for the elderly. In it I found many parallels between this history and the history of our family court system.

The Origin of Nursing Homes

The principle point of Dr. Gawande’s book is that the system developed to care for the elderly wasn’t actually designed to help the elderly or address the problems that the elderly face. As medicine grew exponentially in the years following WWII, care for the elderly began to shift to hospitals. Yet since debilities of old age are not curable, those hospitals began to fill up with elderly who never left. As a result, nursing homes were developed by the medical system — not to help elderly people facing dependency — but to help the hospitals free up hospital beds.

The lack of focus on the needs of the elderly in creating nursing homes was evident by the fact that the medical system used the same approach to treating the elderly as they use in hospitals — by providing a controlled environment to maximize the health and safety of its patients. This goal may sound appropriate on paper, but in practice it proved to be a disaster in the context of nursing homes. After witnessing her mother’s experience in a nursing home, Keren Brown Wilson, one of the pioneers of the “assisted living” facilities that began in the 1990s, began to realize that the goals of the nursing homes were actually opposed to her mother’s desire for control over her own life.

Although the concept of assisted living championed by Keren Brown Wilson appears today as such a sensible idea bound to succeed, it was anything but that at the time. The concept was attacked as ‘”fundamentally dangerous.” Leaving the elderly behind closed doors to do what they pleased? Since concerns over safety and the need to provide the elderly with the dignity of control over their own lives can call for very different environments, lawsuits and insurance issues created lots of tension — a tension that has relaxed only as the use of assisted living has become mainstream.

The Origin of the Family Court

Like nursing homes, our family court system was not developed with the needs of people and families in mind. Rather, our courts simply applied the existing adversarial system to the problems of families facing divorce. In essence, criminal matters and slip and fall civil cases are decided in the same way that divorces are settled: through competitive contests. This is because our courts have one overriding objective — protecting rights. This is why attorneys today market divorce services as a competition of competing rights between individuals. Not because this is what divorce is or should be, but because that is what it becomes in a courtroom.

This is not to suggest that protection against wrongdoing is not a worthy goal in the context of divorce. But courts protect the rights of individual men and women in a single minded manner that is often at odds with the need to protect the dignity, self-determination, privacy and well-being of people and families facing divorce. Therefore, advocates for a better divorce process find themselves in the same predicament as those who developed assisted living for the elderly: the goal of protection is at tension with all other needs and goals of the people involved. The solution to this predicament is suggested by the founders of assisted living homes — offer the people facing divorce an alternative approach that balances and serves their needs and goals, rather than serving the needs and goals of courtrooms.

Mediation and collaborative practice are alternatives to a court-based divorce that are designed to provide a true balance of all of the needs and goals of the people facing divorce. The mission of Cleland Collaborative Solutions is to improve the lives of people in our community by make these methods available to people facing divorce. Learn more about collaborative divorce and mediating your divorce.