Several years ago, after spending over a decade working as a litigator, I decided to start handling divorces as part of my law practice. At the time I felt that I contribute something good to this area because I had experience with divorce a child and I felt I could both empathize with clients and provide leadership to get through such a difficult time.  I quickly realized that my ability to deliver clients the sort of services that best served them was limited by the culture of divorce court.  By culture I mean the way that the lawyers and courts think about and deal with divorce on a daily basis. “The way it is” was very much in conflict with “the way it should be”.   Why do I need to practice divorce law like everyone else, if I don’t think it delivers good results for my clients?  

About this same time I read a book titled “Being Mortal” by Atul Gawande, which greatly influenced my divorce practice.   “Being Mortal” describes the history behind the American medical system’s care for the elderly. Dr. Gawande points out that the system originally developed to care for the elderly  - nursing homes - wasn’t actually designed to help the elderly at all.  Instead, nursing homes were developed to help hospitals get elderly people out of hospital beds. In doing so, hospitals also applied the same approach used in hospital care to nursing homes.  If you have ever been a patient in a hospital, you know that the hospital is in control of what you can and cannot do. This isn’t because they are control freaks, but because hospitals look to maximize the health and safety of patients by maintaining a controlled environment.

Unfortunately, this approach proved to be a disaster for the elderly in nursing homes.  After witnessing her mother’s terrible experience in a nursing home, Keren Brown Wilson developed the concept of “assisted living” facilities. The idea was to develop a system that gave the elderly some control over their own lives. It is a system designed around the needs of the elderly.  Although the concept of assisted living appears to us today as a sensible idea, it was initially attacked as fundamentally dangerous.  Leaving the elderly behind closed doors to do what they pleased? What if they hurt themselves?

Like nursing homes, our family court system was not developed or designed around the needs of all people and families.  Rather, our courts simply applied the same approach they apply to criminal matters to the problems of families facing divorce. In essence, criminal matters and slip and fall cases are decided in the same way that divorces are settled: people are placed on opposite and competing sides and are expected to argue and fight their way to a resolution.  Often this approach is at odds with the need to protect the dignity, self-determination, privacy and well-being of people and families facing divorce.

The solution to this predicament is simple: offer people facing divorce an alternative approach that is not based on pitting people against one another.  Today we have two alternative approaches to divorce: mediation and collaborative practice. Both avenues avoid using the court system and offer a less costly divorce without the combat.   Mediation and collaborative practice are two methods that are designed to resolve divorces the way that 99% divorces are resolved - by compromise agreement.  After the agreement is reached, the couple jointly file a petition for divorce with the court.  Since the terms of the divorce are already worked out, the role of the Divorce Court is minimal.  The Court will simply review the paperwork and grant the divorce after a short perfunctory half hour or less hearing.  

Far too many people remain unaware of these options. As a result, many people do not choose a divorce process that suits their needs.  If you are interested in learning more, contact me for a free consultation.