THE BLOG

How Family Law Attorneys Tend to Think, Part II

05/04/2015 12:36 pm ET | Updated May 02, 2016

In Part I of this series, I published the comment I made to the members of the listserv for the Family Law Section of the Los Angeles County Bar Association on April 23, 2015. In order for people to grasp how the family law litigation community tends to react to such postings, I feel that it is necessary to share their responses.

Joan T. Daniels, Esq., a family law attorney on that listserv has been very supportive of my efforts. In fact, she was the first to respond and said the following:

"This morning, I attended a 90 minute 'seminar' given by a mediator who does not do family law mediation. I have been attending his meetings for a while and have learned so much. No family law attorneys have ever attended these meetings.

I am struck by the fact that each of every one of those in attendance regularly use mediation in their respective practices to resolve disputes. These are high profile attorneys working in major law firms.

Except for the years I was in Juvenile Dependency court, where mediation was available for each case set for trial (but not presently, because that court system does not now have the funds to do so), I can count on the fingers of one hand the times when opposing counsel suggested mediation. When we were so engaged, the parties ended up with a deal with which each could live, and they saved the exorbitant cost of trial prep and trial. Of course, counsel did not make as much $$$ as if there had been litigation.

The mandated mediation precedent to an Request for Order for custody/visitation is a joke. Attorneys don't even bother to attend with their clients. Of course, both attorneys have to be present for the mediator to a meaningful job.

Considering that we are dealing with the lives of people--and their children-- who are at their most vulnerable, IMO, the present system is terrible.

Mark: Illegitimi non carborundum! Keep up the very good work that you are doing; hopefully your message will get through to the FL bar."

The translation of that Latin phrase is "Don't let the bastards grind you down."

I responded publicly on the listserv as follows:

"Thank you, Joan. It is just disgraceful!

On March 18, 2015, I gave a presentation to a law school mediation class. We covered resolving conflict through coercion v. compromise, domestic violence as a tragic toll of divorce, and empathy as emotional intelligence. They voted on the topics they wanted me to address after their professor had them review the titles of the articles I have written.

The presentation lasted for two hours and was very well received. One of the students is very interested in psychology and said she loves the idea of incorporating psychological concepts and tools into dispute/conflict resolution. She is a child of divorce and never wanted to practice family law. After hearing my presentation, she said that the idea of practicing family law in a manner similar to mine is exhilarating to her. She also said that that she now wants to read all of my articles.

Here's the thing -- I was an older MINOR child of a litigated divorce and later a financially DEPENDENT adult child of that divorce. I had the pleasure of being the collateral damage of things over which I had no control. I LOVED when my father stopped paying my tuition at Brandeis University and informed me he would be doing this over the spring break of my freshman year BECAUSE I wouldn't permanently end my relationship with my mother. He played similar 'games' following the litigated divorce with both of my brothers. To my knowledge, none of us have seen him since 1984.

Minor and financially dependent adult children of litigated divorces (and litigated negotiated divorce cases) don't tend to go into family law because we don't want to participate in causing collateral damage to children - we have VERY personal experience with being that collateral damage.

This law student's comment that she was a child of divorce and never wanted to practice family law is VERY common.

Let's distinguish between people who have no personal experience with divorce, are themselves divorced, or were independent adult children when their parents divorced and the situation I have described. They are VERY different and I'm afraid that the family law bar does not have the collateral damage perspective because people with that perspective don't tend to go into the field. Meanwhile, when they have people in the field with that perspective, they ignore them.

It's sick!"

I then received a private email from a member of that listserv, which stated in pertinent part as follows:

"Thank you for your comments, both re the need for more lawyers with experience being 'collateral damage' to get into family law and, further down, with respect to the need for self promotion.

I've never practiced family law. I've always been drawn to family law, but have hesitated precisely because of the damage I can cause. I have been toying with the idea lately though; first by signing up to be minor's counsel and second by joining this list-serve.

Any thoughts on how to make money as a family lawyer when you're not prepared to screw the other side?"