Skip to content

The Death of Litigation May Provide for the Life of the Lawyer

May 31, 2016

As printed in Family Law News, the official publication of the State Bar of California, Family Law Section,, Issue 2, 2016, pp 42-44

To say that the practice of family law is stressful is a gross understatement. While civil litigators must deal with issues of finance and property, the relationship to one’s former partner and to one’s children is clearly of a higher order. While most people can live on with financial loss, the loss of family and times with one’s children is a formidable and lifelong burden. It is the family law lawyer who shoulders that burden on behalf of the client. The client comes to the family law lawyer to preserve relationships to kin, to one’s children.

In view of litigation, parents are pitted against each other, each seeking to prove the other the greater scoundrel while elevating themselves as the child’s savior and perhaps paragon of virtue. In the volley of attacks and counter attacks, it is the lawyer who becomes the repository of the client’s distress. “You’ve got to help me. We can’t lose.”

Yet, lawyers lose.

Indeed, in litigation, unless you can pick all the winners in advance, statistically they will lose 50% of the time. Why? Because statistically in every case there is a perceived winner and a perceived loser in the win/lose battle between the litigants. Hence statistically one would have 50% losses. Like in baseball, no one has a perfect average. Family lawyers will then suffer the personal and client backlash of losing in the context of family law cases.

According to the American Psychological Association, lawyers are 3.6 times more likely to suffer from depression than non-lawyers.[i] Depression is a predictor and precursor to suicide. Coping with the backlash of losing a family law case can be formidable and is a fact of the profession when practicing family law litigation.

To add, according to a recently released study of 12,825 lawyers across 19 States where ¾ of the lawyers practiced litigation, more than 20% scored a level of alcohol consumption consistent with problematic drinking. Mental health concerns noted over the course of one’s career included anxiety by 61% and depression by 45% of respondents. The most potent barrier to getting help reported was not wanting others to find out they needed help by 50.6%.[ii]

Enter Collaborative Practice.

Collaborative Practice (or Collaborative Law), distinguishes itself from traditional family law practice along several lines.

Traditional family law creates a hierarchy in the legal dispute, placing the lawyer at the top, even if purportedly acing on the instruction of the client. As well known, instruction of the client is influenced, if not totally determined, by the input and guidance of the lawyer. This creates a responsibility upon the lawyer for outcomes.

Traditional family law has each lawyer assume a posture of protecting the interests of their client singularly and in a de-contextualized manner. There is little to no consideration for the fallout of outcomes when the other side is dissatisfied or hurt or disadvantaged by an outcome. Thus outcomes in one’s client favor can produce more disastrous consequences in view of backlash from the other side. These matters often come back to haunt the traditional family lawyer in the form of client upset. We won, yet the conflict continues and the client continues to experience distress.

Even if successful at utilizing lawyer-assisted-negotiation, it is still the traditional family law lawyer who is at the top of the hierarchy writing the letters and fielding phone calls to deliver an outcome. Win or lose, the outcome is with a vision of only the client’s interest in the same de-contextualized context.

No wonder there is risk of depression and suicide.

Collaborative Practice however helps people resolve their differences with a remarkably different approach. From a hierarchical perspective the lawyers and clients are on the same level if the client isn’t actually elevated. Responsibility for outcomes rests on the clients and with a view to making mutually acceptable settlements which in turn mitigates both a de-contextualized outcome as well as risk for recrimination and backlash. Is it any wonder that clients who use the Collaborative Practice process are generally satisfied?[iii]

Collaborative Practice with its roots tracing back to the early 1990’s and to a lawyer by the name of Stu Webb has gained a groundswell of support over the intervening 26 years.

As it developed there was a backlash from those practicing traditional family law and litigation in particular. There were any number of court challenges to the precepts of Collaborative Practice on case by case basis, yet the principles of Collaborative Practice have not only been upheld, but have thrived.

To advance the practice, some of the founding fathers of the movement along with disciples gathered together in 2009 to develop the Uniform Collaborative Law Act (UCLA). This provided a systematic and strategic process for advancing the spread and development of Collaborative Practice throughout the United States. I had the pleasure of being the only Canadian invited to a conference at Hofstra Law School to co-facilitate the working group on domestic violence as it pertained to the Act.

Since inception of this strategy, 12 states and the District of Columbia have enacted the UCLA. Florida is currently on the march to have the UCLA adopted there, perhaps as soon as this year.

Adding to the advancement of Collaborative Practice, is the advancement of mediation. Once considered a passing fad and subject to the nay-saying litigators, mediation has thrived and has a serious foothold in civil and commercial disputes as well as in family disputes.

The proliferation of the Internet has also meant the proliferation of both Collaborative Practice and mediation. As the horror stories of litigation are told, not only by former practitioners, but dissatisfied customer of the family court system, those stories are being supplanted by the positive outcomes achieved through these non-adversarial solutions to dispute resolution.

In November I attended a conference sponsored by the Family Dispute Resolution Institute of Ontario. Of particular interest to me was the panel of parents who spoke of their experience resolving matters with legal support. The panel consisted of 4 women, one of whom arrived late.

Three of the women sought to resolve their matter through the court system and the fourth through Collaborative Practice.

This is what I learned:

Two of three women litigated 7 years each at costs of about $200,000 each. Both of these women spoke of compromised mental health the result of their experience. The one woman who used Collaborative Practice settled her case in 2.5 days. To add:

One woman said she spent more on lawyers than she received in support payments. She reflected, “Court has a roar, but no bite.”

Another woman who went to court said she had 3 different judges on 3 different appearances. They then went to use mediation and included an assessor for a creative approach. She was satisfied with this approach and outcome. She reflected, “The best part of the ADR experience was picking your service provider and ability of being creative.”

When the women who went through court reflected on the effect of family justice system experience, the advised of the following:

  • Loss of self;
  • Loss of privacy;
  • Loss of mental health;
  • Loss of confidence in our institutions;
  • Loss of finances.

The woman who chose Collaborative Practice said she did so to avoid being combative. She was happy with the outcome. She did not share the experiences above.

The practice of family law is reaching a tipping point. No longer can Collaborative Practice or mediation be dismissed or minimized. They are the genies that will no longer go back to the bottle. One can only wonder when those approaches to dispute resolution will no longer be referred to as alternate and more readily be seen as primary.

With the demise of litigation perhaps then we shall see the survival of the family law lawyer. No longer should the family law lawyer be torn by winning or failing cases and no longer should they be singularly shouldering the responsibility for outcomes.

The very death of litigation may provide for the life of the lawyer.

 [i] Taken from: http://www.cnn.com/2014/01/19/us/lawyer-suicides/, accessed January 28, 2016.
[ii] Patrick R. Krill, JD, LLM, Ryan Johnson, MA, and Linda Albert, MSSW, The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys, American Society of Addiction Medicine; Volume 10, Number 1, January/February 2016, pp 46-52.
[iii] Nathalie Boutet, Survey Finds That Outcomes Negotiated Through Family Collaborative Practice are Satisfactory or Very Satisfactory to Clients, The Ontario Bar Association, June 17, 2015 https://www.oba.org/Sections/Family-Law/Articles/Articles-2015/June-2015/Survey-finds-that-outcomes-negotiated-through-fami, accessed January 28, 2016.

 

Please share this article with the buttons below.

Download this article as a PDF

I am Gary Direnfeld and I am a social worker.

https://garydirenfeld.files.wordpress.com/2013/07/gary-feb-12.jpg?w=200&h=301

Gary Direnfeld, MSW, RSW

gary@yoursocialworker.com
http://www.yoursocialworker.com

Facebook
Linked In
Twitter

Gary Direnfeld is a social worker. Courts in Ontario, Canada, consider him an expert in social work, marital and family therapy, child development, parent-child relations and custody and access matters. Gary is the host of the TV reality show, Newlywed, Nearly Dead, parenting columnist for the Hamilton Spectator and author of Marriage Rescue: Overcoming the ten deadly sins in failing relationships. Gary maintains a private practice in Dundas and Georgina Ontario, providing a range of services for people in distress. He speaks at conferences and workshops throughout North America.

If your relationship is faltering, then set it as your priority.

Read: Marriage Rescue: Overcoming ten deadly sins in failing relationships

 

 

One Comment
  1. Joryn Jenkins permalink

    As always, Gary, love your thinking and will print to hand out to consults. One comment which I won’t spend a lot of time on here: contrary to popular belief, most family lawyers do NOT report 50% wins and 50% losses. My experience and that of almost every family trial lawyer I know is that our clients rarely “win” or “lose” because judges invariably spit the baby.

    On the other hand, your analysis of the result of “winning” (if you want to call it that – the client who got closer to what she wanted, “won”), i.e. that it only leads to more litigation and anxiety and expense and stress and hurt and all the other horribles that flow from all that, is so well-stated that I’ll be handing this article out at our next practice group program! As always, thank you!

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: