THE BLOG

How Family Law Attorneys Tend to Think, Part IV

05/19/2015 03:13 pm ET | Updated May 16, 2016

On July 10, 2011, Joan T. Daniels, Esq. posted the following comment on the listserv for the members of the Family Law Section of the Los Angeles County Bar Association:

"Thought this article might be of interest." Ms. Daniels provided a link to an article by Susan Gregory Thomas published in the July 9, 2011 edition of the Wall Street Journal titled "The Divorce Generation - Having survived their own family splits, Generation X parents are determined to keep their marriages together. It doesn't always work."

The article discussed the reality that many Generation Xers were/are determined not to divorce because of the impact their parents' divorce had on them. The article provided in pertinent part as follows:

"No marital scenario, I told myself, could become so bleak or hopeless as to compel me to embed my children in the torture of a split family.... Many Generation X parents are all too familiar with the brutal court fights of their parents.... To allow our own marriages to end in divorce is to live out our worst childhood fears. More horrifying, it is to inflict the unthinkable on what we most love and want to protect: our children. It is like slashing open our own wounds and turning the knife on our babies. To consider it is unbearable.... Call us helicopter parents, call us neurotically attached, but those of us who survived the wreckage of split families were determined never to inflict such wounds on our children. We knew better. We were doing everything differently, and the fundamental premise was simple: 'Kids come first' meant that we would not divorce....

Many of us do. The phrase 'friendly divorce' may strike some as an oxymoron, but it is increasingly a trend and a real possibility. Relatively inexpensive and nonadversarial divorce mediation--rather than pricey, contentious litigation--is now more common than ever. Many of us are all too familiar with the brutal court fights of our parents, and we have no intention of putting our kids through it, too. According to a recent University of Virginia study, couples who decide to mediate their divorce are more likely than those who go to court to talk regularly about the children's needs and problems, to participate in school and special events, daily activities, holidays and vacations. We may not make it in marriage, but we still want to make it as parents."

As referenced in Part II of this series, on April 23, 2015, almost 4 years after sharing that article with the members of that listserv, Ms. Daniels stated, "I can count on the fingers of one hand the times when opposing counsel suggested mediation."

In any event, responses to Ms. Daniels' post, which explain a great deal about the mindset of many professionals involved in the field of family law, were as follows:

"Interesting article. Thx for sharing. Comparing every divorce to Medea may be a little over the top (maybe not? any psychologists who want to chime in?), but still, good.

Do any of the family law practitioners who have been practicing awhile see these trends in their clients? Is Gen X really different from Boomers this way, in your anecdotal experience?

Any tips other than 'no DV [Domestic Violence]' for identifying couples who are a good mediation fit? Any tips for moving angry clients toward a negotiated settlement? Sometimes the further information route--further information re cost of litigation, further information re assets of marital estate, further information re polarizing positions--isn't enough. [Information processing is breaking down because of the emotional static?] With the new litigation deadlines, we won't have the luxury of time to allow the raucous post-separation emotions to resolve on their own. Recommendations?"

Leslie Ellen Shear, CFLS, CALS and IAML responded as follows:

"The problems with 'no DV' as a criterion for Consensual Dispute Resolution are twofold. First, the power imbalances and risks can be even greater in the adjudicative model. Second, most humans have experienced behavior that falls into the broad classification of DV. With a skilled neutral, many of these couples can productively work out safe resolutions in CDR.

I find that in many cases, walking down the parallel roads of CDR and adjudication Is the most effective approach. The experiences in each model inform the choices made in the other. One of these days, I'll write a longer piece on the complementarity of the two models, and why I think CDR makes a huge mistake in bashing the adjudicative model."

Robert A. Simon, Ph.D. responded as follows:

"As a custody evaluator and forensic consultant, the cases I work on are typically very difficult, tend towards high conflict and a good deal of polarization in positions. I observe, as I am sure many of you do, that when a case is in active litigation, positions can harden, feelings become more intense, accusations escalate, perceptions of the other parent become more negative, a tendency towards assuming the worst is seen and everyone in the family is in pain. However, even with this population of people being what I see most often, I do not see the 'Medea Complex' as being ubiquitous or even typical. Yes, parents tend to doubt their co-parent more and yes, they tend to imagine the worst but even when conflict is high, most parents understand that destroying the other parent is destructive of the children. I believe that the author of this very moving and courageous article overstates that case for the Medea Complex. Nevertheless, she clearly points out how divorce is painful for everyone, how good parents continue to wonder and, yes, at times agonize, over how their growing or grown children's struggles in life would have been lessened had there been no divorce.

The popular sense that the legacy of divorce being inevitably harmful for children is, itself, harmful and false. Much of this sense draws not only from popular cultural beliefs based on stigma, taboo and guilt but also on the research of Judith Wallersten, Ph.D. who, inaccurately, came to the conclusion that divorce is always harmful for children and that the signs of this harm are seen long into the future. (For those who are unfamiliar with Dr. Wallerstein's research, I would point out that the same of individuals she studied came out of a clinic setting - thus all of the individuals she studied were in psychotherapy). Another longitudinal study, that done by Constance Ahrons, Ph.D., came to different conclusions. Dr. Ahrons shows how children of divorce are not inevitably harmed. Her research shows that whether children are resilient post-divorce or are haunted by it has a lot to do with how the parents regard one another, how they handle their conflict during and after the divorce, particularly when it comes to conflict over the children. Note that Dr. Ahrons drew her study subjects from a broad sample of children of divorce - not only those in psychotherapy."

It seems to me that Dr. Simon missed the entire point of the article, which was reflected in the following quote: "Many Generation X parents are all too familiar with the brutal court fights of their parents, and today, 'friendly divorces' are increasingly common." I should also point out that in Part II of this series, I indicated that attorneys whose parents divorced when they were minors or financially dependent adults don't tend to go into the field of family law for the same reasons why Generation Xers don't want their parents' divorces.

After my mother died in 2005, I found two large banker boxes in a closet in her bedroom that contained all of the correspondence, pleadings and deposition transcripts from her divorce from my father that took place in 1983/84. I also discovered similar boxes that contained her copy of the file from her divorce from my stepfather, which took place in 1994/95. I read every word on every page in all of those boxes. It was interesting, but not at all surprising, observing how they became more contentious with each other, as the litigation progressed. To say that the attorneys involved in both sides did nothing to de-escalate the conflict would be an understatement. It is now 2015 and I am afraid that family law litigators are essentially providing their clients with "their parents' divorces." Moreover, they blame their clients for the manner in which they behave during and subsequent to an adversarial divorce.

As I like to say, "outcomes are typically determined by the way in which the 'game' is designed." My mother's divorce files very clearly show how both of those "games" were designed and how the attorneys involved designed them. I have kept those boxes in my storage facility as a reminder of the damage that litigators frequently cause to families and the damage they caused to mine.

Since I happen to be an exception to the rule that attorneys who were minor children or financially dependent children of their parents' divorces don't tend to go into the field of family law, I frequently share my personal experiences in an effort to enlighten my colleagues and others. Sadly, many of my colleagues wish to interpret the reasons that I share my personal experiences as evidencing that I suffer from Post Traumatic Stress Disorder (PTSD) and have no shame. They not only say such things to each other, but some actually put it in writing and share such opinions with others. In fact, some have opined in writing that I should start undergoing long-term psychiatric treatment for those issues. They have also published comments that I should stop writing about my "evil parents." They completely disregard the role my parents' divorce attorneys played in the dysfunction that ensued.

In any event, a family law attorney on the listserv chimed into the discussion with the following comment:

"Dr. Ahrons' book, in my understanding, is the first long-term study on children of divorce and one conclusion was that many children of divorce emerged stronger and wiser in spite of-- or because of--their parent divorce.

The titles of 2 of her books are, 'We're Still Family' and 'The Good Divorce.'

Helps me sleep at night."

Fortunately, Leslie Ellen Shear, CFLS, CALS and IAML replied to that attorney's inaccurate information as follows:

"Not so. Ahrons' studies (reported in several popular press books, and in scholarly articles is one of two well-constructed, scholarly longitudinal examinations of the topic. Dr. Mavis Hetherington pioneered this work, and her findings are also reported in a series of scholarly and popular press publications. There is considerable consistency in the findings from these two bodies of research."

Joan Daniels then entered into the discussion with the following comment:

"The titles of Dr. Ahrons' books, presupposes that both parents are able to work together for the benefit of everyone----and that both parties hire attorneys who are not fee churners out to destroy the other party.

As to the question: when both attorneys refuse to provide the fuel for the conflict, the parties will more readily mediate-----or one--or both--will substitute in a fee churner to do their dirty work. And then everything goes (further) downhill.

We have the opportunity to be bridge builders at this critical time in the lives of the family, and still make a decent living.

But that is not how Family Law is usually practiced.

Hence, families are destroyed, along with their finances, and the mental health of their children.

Let's put the blame where it belongs."

Forrest ("Woody") Mosten replied to Joan as follows:

"Our profession and the families we serve could benefit from your elegant point about our ability to serve as the bridge builders for families in conflict. I also agree that when even one lawyer models a constructive and peacemaking approach, often both parties are far better off (See 'Lawyer as Peacemaker' Family Law Quarterly, Vol. 43, No. 3 (Fall 2009).

In her work, Dr. Ahrons also recognizes the presence of high conflict parents ('Fiery Foes') and recommends useful interventions for lawyers, therapists, and the parents themselves to modulate destructive behavior in efforts to achieve a 'Good Divorce.'"

Ms. Daniels responded to Woody as follows:

"What a joy to read your article and to know that there are menchen like you out there whose FL practice is somewhat based, IMHO, upon the original Hippocratic Oath: Primum non nocere: 'First, do no harm.' Your article should be required reading by every litigant as a condition precedent to commencing litigation, and translated into every language spoken in our courts.

As long as clients engage the services of attorneys who are expected to, and do, act as surrogates to 'fight' for them (a word that promises future misery for everyone), our practice will continue to regarded as the lye pits of the legal profession, second only to Juvenile Dependency Practice."

Interestingly enough, on April 30, 2015, a number of the members of the listserv for the Family Law Section of the Los Angeles County Bar Association engaged in public ad hominem attacks against me on that listserv. To make matters worse, they blocked me from commenting. When I sent an email to the moderator, he responded as follows: "You have certainly put your 'brand' on the system. Maybe be mindful that many do not want what you are selling?"

Karen Green Rosin, Esq. summarized what I am "selling" in the following comment that she posted on the listserv in response to those attacks against me:

Hey guys:

I know Mark Baer (and like him) and believe he is quite well-intentioned.

Consider his goals: What he is promoting is a philosophy that includes values I would hope we all share...

Something like the credo doctors try to live by: 'First, do no harm.'

His main point is that the adversarial SYSTEM has the opposite effect on human relationships.

That is the better focus for discussion IMO."