The Hazards Of Family Court Mediation
Family law today provides lawyers with an incentive to encourage conflict between parents when cooperation would be in the best interest of the child.
In criminal law we have adopted an adversarial method in which one attorney represents the state and the other the accused. They operate in contention with one another, each attempting to get the judge and/or jury to accept the “facts” they present. The crime of perjury is taken very seriously in these cases, because lying prevents the judge and/or jury from being able to make a just decision on whatever matter has been brought before them.
Usually the only thing at risk in these cases is the freedom of the defendant. Neither side has a personal issue with the other. It is simply the most expedient way to get at the truth.
Family law has also been designed to follow this adversarial pattern. There are many reasons why this is not the most conducive method to deal with this kind of situation. The first and foremost reason is because children are most often involved, and it is hardly to their advantage to place them in the midst of a court battle.
The second reason adversarial methods do not work in family court is because, most often, one or both parties have personal reasons to make the whole affair as difficult for the other as possible. They enter the courtroom with the express purpose of causing the other party grief. This usually results in an attitude of “anything goes,” where one or both parties will attack with every means at their disposal.
Which brings us to the third reason the adversarial method is unsuitable for family court. Perjury is so common in family law cases that it’s rarely prosecuted. This is also because it is remarkably difficult to prove or disprove a statement by one party or another. It usually devolves into a “he said, she said,” scenario. Simply put, the advantage goes to the party most willing to accuse the other of the most outrageous behavior, whether it has any basis in fact or not.
The fourth reason, and this is possibly the most telling, is that in child custody cases there is a direct financial advantage to winning. The winner gets paid. The parent who receives custody (this is no longer the term used, but it is a term generally known) has the right to petition the courts to insist that money be paid by the non-custodial parent. Now this child support is due regardless of whether custody has been established or not, and in many cases it can place the “responsible” parent in deep debt even before the court has reached its conclusion.
I believe that lawyers should be cut out of the family law business completely. It is in their financial interest to make a custody battle as prolonged and as difficult as possible. They can collect money from either party, regardless of the outcome of the case.
Parents engaging in a custody battle should be required first to seek mediation, a conflict resolution method rather than being prompted to enhance the conflict by lawyers motivated to increase their financial gain from the process. It would be in the interest of everyone involved to lower the level of conflict and make it no longer profitable to use any method necessary to gain custody of the children. The courts would be far more free to take on the cases in which a child or parent is actually in jeopardy, parents would not be driven into debt in order to pay attorney fees, and children would be kept clear of the atmosphere of conflict such cases usually entail.