On May 5, 2016, I read an article by Jeff Landers titled "The Four Divorce Alternatives" that was published by Forbes on April 24, 2012 and which has been viewed 119,012 since I last checked. While I realize that the article was published several years ago, its lifespan is far from over.
I came upon the article because it was posted in the Divorce Advice LinkedIn group by an attorney on May 1, 2016, along with the following comment: "A recent contentious divorce case made me go back to an old article from The Wall Street Journal, which talks about the various ways to approach divorce. I am including the link to the article. It's useful for clients to read when they are starting on the process." In addition, the only comment before mine was from a mediator who wrote, "Thanks Eli. Insightful and helpful article." The article was also Tweeted on fifteen separate occasions (including once by me), since January 1, 2016.
To my surprise and dismay, several of the people and entitles Tweeting and otherwise sharing that article are mediators, collaborative divorce practitioners, and mediation and collaborative law organizations. The reason this is so upsetting is because the information in the article is incredibly false and misleading. The article was clearly designed to frighten divorcing couples into ending their marriages though combat.
It's hardly a challenge push people into engaging in such destructive divorces, since fear and anger guarantee aggressive lawyers a secure future. It's like shooting fish in a barrel and Jeff Landers' columns do just that on a regular basis. However, keep in mind that Jeff only works on litigated matters and does not work as an impartial financial expert. In fact, he only works on behalf of women, which is why his columns are always written specifically for a female audience. Jeff is one of many weapons used by the self-proclaimed "gladiators" and "warriors" working within the adversarial process, we call litigation, but which is really nothing less than combat.
I suspect that those mediators and collaborative practitioners who shared Jeff's article got so excited to see rare media coverage referencing such processes, that they apparently didn't pay much attention to the content of the article itself and how harmful it is to the mediation and collaborative divorce processes, while promoting combat.
The article started out with Jeff discussing "Do-It-Yourself-Divorce." Generally speaking, I agree with Jeff's advice with regard to that option, which was "The best advice I can give you about Do-It-Yourself Divorce, is DON'T Do-It-Yourself!"
At the Beverly Hills Bar Association's Annual Supreme Court Luncheon approximately six or seven years ago, then Chief Justice of the California Supreme Court, Ronald George announced that we had a crisis in California because, at that time, an estimated eighty five percent of people involved in family law proceedings were representing themselves. The crisis was not the fact that so many people were self-represented, but that so many of them don't know what they're doing and divorce is a legal process. Chief Justice George (Ret.) described the crisis as the large number of "unintended bigamous marriages" which have resulted by virtue of people believing they were divorced when their divorces were never finalized. You see, when those individuals later remarried someone else, they were involved in what he referred to as "unintended bigamous marriages." As I keep saying, "not all beliefs are fact based, regardless of how sincerely held such beliefs may be." As an aside, as of 2015, it was estimated that the percentage of unrepresented people involved in family law matters in California had increased to ninety percent.
Along those lines, allow me to quote an inquiry posted on Lawyer.com on April 29, 2016: "I need a consultation with a lawyer because I am going through a divorce. My husband is trying to annul the marriage on ground stating I was not legally divorced from my previous marriage." It sounds as though we have an "unintended bigamous marriage" issue involved.
If people opt to have a DIY divorce, Mr. Landers stated that he "would still highly recommend that each party have their own separate attorney review the final documents." I agree with his advice, with one very big exception. Unless the divorcing couple wants to risk their DIY divorce unnecessarily turning into combat, I would strongly recommend that only mediation-minded attorneys be considered.
You see, "attorneys are gladiators who are brought on to effectuate a 'win' for their clients. In fact, on April 27, 2016, at the Beverly Hills Bar Association's program titled 'Tips from the Legends', Stephen A. Kolodny referred to himself as a gladiator. Moreover, on March 27, 2016, a family law attorney addressed their colleagues as 'fellow warriors' on a family law listserv in which I am a member. It's important to note that not one person on that listserv seemed bothered having been called a "warrior."
This really is no surprise, considering the history and mindset of these attorneys. The following is a quote from my article titled "How Family Law Attorneys Tend to Think: Part III" that was published by the Huffington Post on May 13, 2015:
"In June 2012, my article titled 'Litigation and Family Don't Mix' was published by ACT of COMMUNICATION®. In that article, I stated the following: 'Unfortunately, only a few years ago, the unofficial slogan of the members of the family law bar (at least in Los Angeles County) was 'We are carnivores; we go for the kill.' Until recently, when family law attorneys who practice mediation and Collaborative Divorce joined the executive committee of the Family Law Section of the Los Angeles County Bar Association, the members of that organization purportedly made such a claim after booing them. This attitude is inconsistent with what is needed when dealing with families in conflict.'
In order to better understand why the culture has not changed much since then, we must consider how long it takes for change to occur."
"Let's start referring to litigation as combat because that's exactly what it is, which is why even litigators refer to themselves as 'gladiators' and 'warriors.'
I keep saying that 'you can only give what you have and teach what you know.' In other words, even if your litigator resolves your matter outside of court, don't expect them to be wearing a different hat in such 'negotiations.' Those are 'litigated negotiations' because those involved in the negotiations are 'gladiators' and 'warriors.'" As a matter of fact, I started my 7-Part series of articles titled "How Family Law Attorneys Tend to Think" as follows: "On April 23, 2015, I read an article titled "Solid negotiation skills crucial for family lawyers," which I felt was an important read for both the public and my colleagues. I therefore shared the article over the social media and with the members of the listserv for the Family Law Section of the Los Angeles County Bar Association."
Now, I'd like to clear up what people may believe is an inconsistency in what I have written so far. While the percentage of people involved in family law matters who retain counsel is decreasing, it's because people are increasingly realizing how costly and destructive litigation is and they are associating the litigation mindset with all attorneys. Guess what? We're not all "gladiators" and "warriors." In fact, some of us, myself included, live by the mantra set forth in the following quote by Abraham Lincoln:
"Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough."
In other words, it's not an either/or situation in which you either work with an attorney who possesses a "gladiator" or "warrior" mindset or you represent yourself. However, the trick is finding such attorneys, which was the reason behind my co-founding Family Dynamics Assistance Center (FDAC). Unfortunately, this is easier said than done. As a matter of fact, the following is a quote of mine from an email I sent in response to Joryn Jenkins' email to me titled "Ethical Issue" and which is being included in an article she will soon be publishing titled Protect Your Profile:
This is just one example of why I don't believe that many 'collaborative' colleagues are actually collaborative, which is a very serious problem.
As far as the information the attorney knows that they wouldn't otherwise know - one can say the same thing about attorneys who participate in facilitative mediations; however, they are not disqualified from representing their clients in litigation.
Regardless, it seems very wrong to me as well. Furthermore, a true collaborative practitioner would not be acting in such a manner. In fact, they would be encouraging their client to return to the collaborative process. I don't know the ethics involved and California has not enacted the Collaborative Divorce Act, so the practitioners can be more 'unethical' than had it been enacted.
The collaborative stipulations need to provide for as many of these types of situations as possible because so many 'collaborative practitioners' aren't collaborative at all.
One thing I believe in my heart of hearts - if this person is a member of a collaborative practice group, they should be removed."
Mr. Landers then discusses "Mediation." Before getting into what he claims to be the pros and cons of mediation, he states, "Both parties still need to consult with their own, individual attorneys during the mediation and prior to signing the final divorce settlement agreement."
My question is as follows: If people can have DIY divorces and Mr. Landers recommends that they at least involve review attorneys, why does he claim that people need to involve consulting or review attorneys when they mediate their divorces? They don't! That being said, it is advisable that people do involve consulting attorneys, ideally mediation-minded consulting attorneys. After all, it's counterproductive to involve a "gladiator" or "warrior" in a mediation.
I agree with what Mr. Landers listed "on the 'pro' side of divorce mediation." However, I have a great many problems with what he included on the "con" side. Let's go through his stated "cons".
"Waste time and money. If negotiations fail, you'll need to start all over."
Allow me to be crystal clear about the statistics pertaining to mediation and family law matters. "The Utah Legislature passed a mandatory mediation statute effective May 1, 2005. The case statistics available to date indicate two thirds full settlements and 12-14% partial settlements for an 80% total. Court caseloads have been reduced, the stress levels of litigants and lawyers have been reduced, the fees for divorce have been significantly reduced, and the satisfaction level of the parties is higher than for litigation." There was a time, before Conciliation Court in California became so overwhelmed, when "eighty percent of referred matters resolved their dispute through mediation in the Conciliation Court."
Now, those statistics are based upon mediated agreements being reached by after people filed adversarial pleadings with the court and in which they typically bad mouth each other. Imagine how many more cases would have been resolved without court intervention, had the parties not filed such documents before the "mediation". Furthermore, imagine how much better the parents' co-parenting relationship would be moving forward, had they not litigated against each other in order to obtain "free mediation." What if they instead paid for private mediation from the outset? Do you think the percentages would be lower?
So, let's discuss wasted time and money. How about the wasted time and money involved in unnecessarily escalating conflict on matters that could have been resolved without having done so? Furthermore, what about partial settlements reached in mediation, even if the parties don't reach agreements on everything. Moreover, what about the possibility that the mediation ultimately helps to move the parties closer to the resolution they reach at some point after the matter falls out of mediation?
The waste of time, money, unnecessary destruction to family dynamics, and harm to children is caused by prematurely jumping into litigation because you cannot unring that bell. As I keep saying, "Outcomes are typically determined by the way in which the 'game' is designed."
"It is important to note that 'the average cost to litigate a contested divorce (in California) is $45,000 per side', or $90,000.00 total. The average cost of mediated or even collaborative divorce cases are a fraction of that cost."
As if that weren't bad enough, family law cases are known as the vampires of the legal system because the cases never die. "Under the current family law system, either party in a family law matter can keep returning to court for a 'rematch' long after the 'conclusion' of the divorce or paternity case. This open-ended process can destroy family dynamics and bankrupt families in the process, not to mention the havoc it wreaks on the court system....
'If you operate under a win/lose paradigm and are permitted 'rematches,' whichever party thinks they lost may well seek one. These ongoing rematches, or the potential for one, prevent healing or can reopen old wounds. Vampires live on indefinitely by sucking the energy and life out of their prey. When family law matters are resolved through litigation or litigated negotiation, they have the potential of becoming 'vampires' of the legal field....
'It is completely false and misleading to not include all the post judgment legal fees and expenses as part of a litigated divorce because they are predictable with a win/lose dynamic. Costs will continue to rise as long as there are rematches, not to mention the total allocation of the court budget needed by the family law courts as a result.'"
So, in essence, when the "gladiators" and "warriors" create these vampires, they establish annuities for themselves.
Another "con" listed by Mr. Landers is "Be incomplete or unduly favorable to one spouse. If the mediator is inexperienced or biased towards your husband, the outcome could be unfavorable for you."
First of all, if people worked with emotionally intelligent, experienced, well-trained and well-qualified mediators, such a concern wouldn't be an issue.
In his book "Mediating Dangerously - The Frontiers of Conflict Resolution", Kenneth Cloke made the following statement regarding bias: "[T]here is no such thing as genuine neutrality when it comes to conflict. Everyone has had conflict experiences that have shifted his or her perceptions, attitudes, and expectations, and it is precisely these experiences that give us the ability to empathize with the experiences of others. Nor are there any genuine neutrals in courts, including judges, CEO's, managers, and human resources representatives, all of whom have biases and points of view, including the bias of wanting to protect the organization from being disrupted by conflict. Judges have the most intractable bias of all: the bias of believing they are without bias." [emphasis added]
Emotion impacts our decision making and the litigation process itself tends incite rather than calm harmful emotions, even though the legal industry claims to embody 'dispassionate rationality.' These emotions impact the decision maker's biases, beliefs, values and assumptions. The more emotional intelligence we have (including self-awareness), the more we can keep such things in check. Unfortunately, however, it is a well-known fact that most lawyers tend to have very low levels of emotional intelligence.
Second, if the parties in mediation reaching their own agreements worked with emotionally intelligent, experienced, well-trained and well-qualified mediators, and had mediation-minded consulting attorneys involved, please explain the following: "Be incomplete or unduly favorable to one spouse. If the mediator is inexperienced or biased towards your husband, the outcome could be unfavorable for you"?
I'll ask the same question regarding the following statement: "Result in an unenforceable agreement. A mediation agreement that's lopsided or poorly drafted can be challenged." In addition, who's to say that such things don't happen in negotiated agreements? Guess what? It does happen! What Mr. Landers is discussing has to do with the drafting and negotiating of the agreement itself. What makes anyone believe that only lawyers with a "gladiator" or "warrior" mindset can draft and negotiate well crafted agreements or that they can somehow do a better job than lawyers who operate from a peacemaking mindset?
I have the exact same response to the following statement made by Mr. Landers: "Lead to legal complications. Any issue of law will still need to be ruled upon by the court."
My comment is once again the same with the following statement Jeff makes: "Fail to uncover certain assets. Since all financial information is voluntarily disclosed and there is no subpoena of records, your husband could potentially hide assets/income." Furthermore, it is completely incorrect that formal discovery can't take place within the context of a mediation and collaborative law process, although they try to avoid such things. Moreover, there has been too much case law with regard to the discovery of hidden assets post-divorce in litigated cases to believe that such things don't occur in litigation too. If you want to play a win/lose game, then don't be surprised by the gamesmanship.
I have a similar response with regard to the following statement: "Reinforce unhealthy behavior patterns. If one spouse is dominating and the other is submissive, the final settlement may not be fair." Let's discuss "reinforcing unhealthy behavior." Since when was engaging in combat healthy and what kind of behavior do such parents model for their children? What positive things do people who engage in a combative divorce learn that helps them to move forward with their lives, post-divorce? They do, however, have the potential to learn many positive things in mediation and collaborative law, such as improved communication and problem-solving skills.
In addition, some people refer to "fair" as a 4-letter word that starts with an "F." Whose subjective sense of "fair" is Jeff referring to? Mom's, Dad's, Mom's attorney's, Dad's attorney's, the judge's, or anyone else's?
As an aside, how is the involvement of a "gladiator" and "warrior" on each side addressing a dominating and submissive dynamic? After all, we're talking about involving professionals who operate from a Viking-or-Victim worldview.
Ah - now the following statement: "Fuel emotions. Mediation could increase negative behavior of a spouse with a propensity for physical/mental or drugs/alcohol abuse."
It is estimated that approximately 38% of lawyers and judges have substance abuse problems, among other things. That means that in every litigated divorce involving a lawyer for each side and which goes to court, statistically speaking, at least one of those professionals will have a substance abuse problem, if not more. This doesn't even address the fact that the adversarial process is combat and therefore highly stressful, among other things. Combat is far more likely to lead to an increase in such negative behavior. By the way, the percentage of the general public and even doctors with substance abuse issues is approximately 10%. As an aside, the correlation with regard to the legal community and such problems involves their Viking-or-Victim worldview and how that plays out in the real world, which is non-binary.
Jeff's biggest problem with mediation is that he works in the litigation arena and clearly has a hell of a time seeing things from other perspectives. It also doesn't hurt that if litigators are "warriors" and "gladiators", he is one of their weapons and makes a great deal of money as such.
As an aside, mediation is conflict and dispute resolution and management. Mediators work to rebuild trust and de-escalate conflict and in so doing they are often able to help the parties reach an agreement. The thing that litigators don't seem to grasp is the following: "Persuading - The art of persuasion is not about nagging, arguing or bullying. It's about empathy and active listening." Well trained mediators and collaborative practitioners grasp that reality.
Interestingly enough, on May 19, 2016, I will be presenting at the Bruin Professionals Lawyers Affinity Group meeting and the topic is as follows:
"The power of empathy in our work as lawyers. Empathy involves understanding another person's situation from their perspective. The more we are able to understand and identify with each other's emotions, attitudes, and needs, the better able we are at resolving conflicts and disputes."
Unfortunately, such skills are aspects of emotional intelligence, something for which lawyers are not known.
Mr. Landers goes on to say "my biggest problem with mediation is that the sole role and goal of the mediator is to get the parties to come to an agreement -any agreement!"
The mediator's role and goal is not "to get the parties to come to an agreement -any agreement!" If the mediator believes that's their job, then I suggest the parties find another mediator! You see, if the mediator believes that's their job, then the mediator has a conflict of interest by saying and doing anything necessary to ensure that an agreement is reached, including lying for the sake of the deal. Ultimately, such a "deal" won't play out well over time and will likely create even more conflict at a later point, particularly when it involves aspects of the case that cannot be revisited. What do you think that will do to family dynamics, when a former couple opted for mediation in order to preserve and even improve their co-parenting relationship, if they are tied together for life through their children?
Mr. Landers then says, "Remember, the mediator cannot give any advice. All they can do is try to get you to agree."
"Generally speaking, the law itself is neutral - lawyers and their clients turn it into a win/lose dynamic.
The problem is that a win/lose dynamic is combat and lawyers are trained for just such combat. They are not trained for cooperation and the personality types attracted to the field tend to be competitive, at best."
Mediators can and do give impartial legal and other information. If parties want legal advice, they can use consulting attorneys (preferably mediation-minded consulting attorneys).
Furthermore, as previously stated, if the mediator believes their job is as Jeff described, they best find a different mediator. Emotionally intelligent, experienced, well-trained and well-qualified mediators are not as described by Mr. Landers.
Jeff then states, "Unfortunately, not all agreements are good agreements, and in fact, in many cases, no agreement is better than a bad agreement."
That's fascinating, considering what was conveyed at the American Bar Association Section of Family Law 2013 Fall CLE Conference. Allow me to quote from an article of mine:
"I wanted to share a common theme from the conference and describe how that theme plays out differently depending upon the approach taken. Steven Peskind was the first to introduce the theme when he said, 'Too few lawyers settle cases early and too many lawyers settle cases too late. Work harder to settle cases early. Settlements are better for the clients.' He also said, 'A bad settlement is better than a good verdict.' Although not part of the conference, Bernard J. Berry, Jr. explained the reasoning behind this in a short article he wrote titled, 'A Business Approach to Litigation - Facing Reality - Fewer Trials.' In that article he stated, 'In most cases, the risk of pursuing a lengthy and costly trial outweighs the reward a party receives at the end of a trial.' The theme was raised next by Phillip Tucker in a completely different program; he reminded us that too few attorneys settle cases early and too many attorneys settle cases late. According to Randall Kessler, 'Judges like settlements and lawyers who settle cases. If you want a judge to order attorneys fees in your client's favor, document all of your settlement efforts.' I should point out that all of those statements were made in programs relating to divorce litigation. Considering that Gregg Herman's presentation titled 'The Ten Commandments of Divorce Settlement Negotiations' was sponsored by the Alternative Dispute Resolution Committee, it can be no surprise that he said the following: 'Most agree that a bad settlement is better than a good verdict. Obviously, however, a good settlement is even better.' Last, but certainly not least, Christopher Melcher said, 'Risk of malpractice is much lower with regard to settlements than trial. If you don't get the result the client likes at trial, they blame the attorney. It is much more difficult for a client to explain why they settled a case.' In other words, settlement benefits both lawyers and litigants alike."
Mr. Landers then spreads the following pesky little myth:
"So unless both parties can be fairly reasonable and amicable (and if they can be, why are they getting divorced???), I believe that mediation is usually not a viable option for most women."
"Mediation Is Not about 'Making Love' and Mediators Are Not Scriveners....
Hostage negotiators use mediation techniques when negotiating with hostage takers. If hostage negotiators conducted themselves in an adversarial manner, the hostage takers would almost certainly kill the hostages. By the way, the same is true of traditional lawyering versus mediation and collaboration. Traditional lawyering is adversarial and therefore tends to exacerbate conflict and increase distrust in order to obtain a result."
Once someone convinces me that hostage crises are not high conflict, I will agree with Mr. Landers that only "reasonable and amicable" people are appropriately suited for mediation. However, I very seriously doubt that anyone will ever convince me of such a thing. That being said, it might be nice if Jeff Landers and all the others spreading such harmful myths stopped doing so because it leads people to do things that are unnecessarily harmful to themselves, their spouse, their children, and their ongoing family dynamics, assuming they are connected together for life through their children.
Mr. Landers then addresses Collaborative Divorce and states, "Simply put, collaborative divorce occurs when a couple agrees to work out a divorce settlement without going to court."
That's a fascinating comment, considering that the article itself referenced DIY and mediation as two other possible situations in which "a couple agrees to work out a divorce settlement without going to court." Which is it, Jeff? Is Collaborative Divorce as distinct process or is it merely a term of art used for any situation in which "a couple agrees to work out a divorce settlement without going to court"? By the way, it is also possible for a couple to use lawyers to "work out a divorce settlement without going to court." Some call such a thing negotiation.
Jeff then states, "The role of the attorneys in a collaborative divorce is quite different than in a traditional divorce. Each attorney advises and assists their client in negotiating a settlement agreement."
At the American Bar Association Section of Family Law 2015 Fall CLE Conference, we were advised that nationally, only 1 out of every 200 family law cases goes to trial. What that essentially means is that nationally, one way or another, 199 out of every 200 family law cases are resolved by "negotiating a settlement agreement." This can occur through a DIY divorce, mediated divorce, collaborative divorce, negotiated divorce, and even a litigated divorce in which they ultimately "negotiated a settlement" at some point prior to trial or completion of trial.
How exactly has Jeff explained in what way "the role of the attorneys in a collaborative divorce is quite different than in a traditional divorce"? I know he said, "You will meet with your attorney separately and you and your attorney will also meet with your husband and his attorney." However, I have been involved in many such four-way meetings on cases which were not being handled through the collaborative divorce process.
Mr. Landers then states, "The collaborative process may also involve other neutral professionals such as a divorce financial planner who will help both of you work through your financial issues and a coach or therapist who can help guide both of you through child custody and other emotionally charged issues."
Allow me to better explain the roles of the other professionals who may be involved in a collaborative divorce case.
"The coaches (licensed mental health professionals) use their training for any and all of the following purposes: (1) to help reduce the clients' stress levels; (2) to improve their coping mechanisms; (3) to improve the way in which they communicate with each other; (4) to restore or at least improve their cognitive understanding and reasoning capabilities; (5) to assist in creating an effective parenting plan; and (6) to assist in restructuring the family.
The child specialist (a licensed mental health professional) is the advocate for the interests of the children.
The financial neutral (either a CPA or a CFP [Certified Financial Planner]) assists the clients in dividing their assets to best meet their needs and those of their family in general and planning for the financing of two households....
Collaborative divorce is an interdisciplinary team approach to family law. It is based upon specialization of labor, not duplication.... All professional team members are co-equals and work together with the clients in a collaborative fashion to assist them in reaching a mutually satisfying settlement that best suits their particular family. It should be noted that there is only one team. It is not husband's team against wife's team."
Mr. Landers then states, "In the collaborative process, you, your husband and your respective attorneys all must sign an agreement that requires that both attorneys withdraw from the case if a settlement is not reached and/or if litigation is threatened."
That's not entirely true either. "Among other things, the Stipulated Order provides that the parties are not to litigate and that the attorneys may not continue representing the clients if the case falls out of the collaborative process." In the collaborative process, attorneys shouldn't be threatening litigation. However, since when did everyone always follow through with their threats? In other words, if they inappropriately threaten litigation, but the case doesn't actually fall out of the collaborative process, why exactly would the attorneys not be able to continue representing the clients in that process?
Jeff then states, "If this happens, both you and your husband must start all over again and find new attorneys. Neither party can use the same attorneys again!"
My response to such a statement is exactly the same as the response I gave earlier in this article to Jeff's claim that a "con" of mediation is "Waste time and money. If negotiations fail, you'll need to start all over."
Mr. Landers then states, "Even if the collaborative process is successful, you will usually have to appear in family court so a judge can sign the agreement."
In my jurisdiction (California), that statement happens to be untrue. In any event, how would the need or procedure for "a judge to sign the agreement" differ from any other of the 199 out of every 200 family law cases in which an out of court settlement is reached?
Mr. Landers is honest enough to state, "But the legal process can be much quicker and less expensive than traditional litigation if the collaborative process works."
However, he then goes on to state the following: "Unfortunately, though, I have found that the collaborative method often doesn't work well to settle divorces involving complicated financial situations or when there are significant assets. In collaborative divorce, just as in mediation, all financial information (income, assets and liabilities) is disclosed voluntarily. Often the husband controls the 'purse strings,' and the wife is generally unaware of the details of their financial situation. When this kind of inequality exists, the door is often wide open for the husband to hide assets. What's more, many high net worth divorces involve businesses and professional practices where it is relatively easy to hide assets and income."
My response is exactly the same as it was to those exact same arguments he made against mediation.
Another reason Mr. Landers claims to advise against collaborative divorce is as follows: "Additionally, the issue of valuation can be quite contentious."
Interestingly enough, the following is a quote from a comment that Mark Gershenson, Esq. made in the California Family Law: Divorce and Child Custody Issues LinkedIn group on August 13, 2013:
"Alas, but hired-gun experts remain the rule, not the exception. Unless we alter the adversarial nature of divorces, they likely will remain. Collaborative divorce is one solution, with its emphasis on neutral experts. We tried to establish Collab. divorce here in the desert, but couldn't get much traction. Some among our local FL bar feared it would reduce their incomes. I disagree, but nonetheless we wound up disbanding out CL group....
As a society, we really need to re-examine how we treat divorce within the legal system. As long as we maintain a system that makes if okay to fight for years, with the forum supported largely by the taxpayers, we will continue to see much acrimony, large legal bills, and the continued influence of hire-gun experts."
Allow me to repeat what I said earlier in this article, "keep in mind that Jeff only works on litigated matters and does not work as an impartial financial expert. In fact, he only works on behalf of women, which is why his columns are always written specifically for a female audience. Jeff is one of many weapons used by the self-proclaimed 'gladiators' and 'warriors' working within the adversarial process, we call litigation, but which is really nothing less than combat." When all is said and done, Jeff Landers is one of the "hired-gun experts" about which Mark Gershenson commented.
That being said, I would caution against following Jeff's recommendation as to when NOT to "use any of these first three options -Do-It-Yourself Divorce, Mediation or Collaborative Divorce."
There is some validity to Jeff's cautioning people against using any of those three options under the following circumstances: (1) "There is a history or threat of domestic violence (physical and/or mental) towards you and/or your children; and (2) You or your husband has a drug/alcohol addiction."
However, some is the operative word. There are different types and degrees of domestic violence.
The following is a comment that Gary Direnfeld, MSW, RSW made in the Integrative Law LinkedIn group on February 2, 2013:
"As to Mark Baer's comment - yes, screening is key.
My colleagues with better mediation training subscribe to at least a 14 hour course in domestic violence and power imbalances and screen accordingly.
As per our provincial legislation, those parties subject to a family law arbitration MUST be screened for power imbalances and domestic violence otherwise the arbitration award is not enforceable.
Admittedly, there is no standard training for this screening and so, buyer beware. I have attended the screening training of a colleague and have also delivered such training.
Further, while there are several good tools for screening available, truth is, it's all about the interview you conduct with the client that matters most.
I screen each and every referral that comes my way regardless of service, be it clinical or clinical-legal."
How about the following comment by Rebecca Pepin, that she made in the ADR, Conflict Resolution and Mediation Exchange LinkedIn group on April 24, 2013?
"Other than criminal cases, mediation is mandatory in almost all cases in Colorado. Even in cases with domestic violence, or restraining orders, the mediators are expected to find ways (primarily through shuttle diplomacy) to make it work. We even have volunteer mediators for our small claims cases. Even when people don't initially want to mediate, I believe it's very helpful. If nothing else, it allows you to hear the other side's point of view, whether or not you agree with it."
What about the following comment by Hon. Hugh Starnes, 20th Judicial Circuit Senior Judge in Florida in the Family Law Professionals LinkedIn group on June 9, 2013?
"As has already been pointed out, research clearly indicates that continued conflict between parents harms children and places them at risk for optimum development into productive citizens, workers, and relationship partners. If this is so, doesn't an attorney have a moral duty to avoid harm to the children, if it is avoidable?
On the legal side of this is, doesn't the attorney have a professional and ethical obligation to be knowledgeable about the processes and skills necessary to mitigate conflict and steer the parties toward non-adversarial negotiation, where possible? This would include an assessment as to whether domestic violence, mental illness, or other pathology exists. Knowledge of the research and science on children's developmental issues is a primary requirement. ADR has developed to the point that there are numerous processes to explain to the client and help them to choose one which they have confidence in.
The legal tool kit for attorneys must include a set of skills that can be used to channel the harmful emotions of the parties toward a more productive view of the benefits of interest based negotiation and a resolution that is right for the children in a long-term sense.
Finally, all of the above must include utilizing an inter-disciplinary approach to the practice of family law, no matter what your professional designation.
If you don't have all these knowledge and skills systems in your practice bag, you can't claim to be competently representing your client, much less feeling you have met the moral standards that an honorable professional should expect."
In case you were unaware, when a full-team is involved in a collaborative divorce case, it is an "inter-disciplinary approach to the practice of family law."
Be that as it may, Mr. Landers ended his article by discussing "Litigated Divorce." He started that section as follows:
"The fourth divorce option is the most common. These days, the majority of divorcing couples choose the 'traditional' model of litigated divorce."
I'm afraid that I will once again call Jeff out for conveying false and misleading information to the public. Earlier, I mentioned that in California, the percentage of individuals involved in family law matters who are self-represented is currently approximately 90 percent. I also mentioned that the average cost of a litigated divorce in California is currently estimated to be $90,000.00. While the cost of a litigated divorce in California may well be higher than in most other jurisdictions, the percentage of self-represented individuals is equally substantial elsewhere. That being said, it is statistically impossible that "these days, the majority of divorcing couples choose the 'traditional' model of litigated divorce."
The fact of the matter is that most people can't afford the financial cost of such a divorce and that doesn't even include the post-divorce legal fees and costs associated with the creation of a "vampire." For very good reason, a great many people fear involving lawyers because they are all too aware of the cost and destruction which frequently results from involving "gladiators" and "warriors" in their conflicts and disputes. What people don't seem to realize is that a growing number of lawyers consider themselves peacemakers. Their fears are misplaced, assuming they are able to find a competent attorney of that ilk. As one of my colleagues routinely says, "It's the 90 percent that give the other 10 percent of us a bad reputation."
Jeff is correct when he says, "Keep in mind, though, 'litigated' does not mean the divorce ends up in court. In fact, the vast majority of all divorce cases (more than 95 percent) reach an out-of-court settlement agreement."
Regardless, "let's start referring to litigation as combat because that's exactly what it is, which is why even litigators refer to themselves as 'gladiators' and 'warriors.'
I keep saying that 'you can only give what you have and teach what you know.' In other words, even if your litigator resolves your matter outside of court, don't expect them to be wearing a different hat in such 'negotiations.' Those are 'litigated negotiations' because those involved in the negotiations are 'gladiators' and 'warriors.'
It should come as no surprise that the involvement of 'warriors' and 'gladiators' to handle family conflict through a combative process tends to reinforce the divisions between the parties. If people don't feel as though a combative approach makes sense (and it typically shouldn't make sense), their options are limited to any number of processes that lend themselves to cooperation, such as mediation and collaborative law. As much as such a statement won't sit well with a great many people, the fact of the matter is that those processes are polar opposites and no 'sugar coating' will change that reality."
Furthermore, even though "the vast majority of all divorce cases (more than 95 percent) reach an out-of-court settlement agreement," that doesn't take into account all of the pre and post-trial law and motion work and court hearings, which helps to create the vampires that provide ongoing annuities for the "gladiators" and "warriors."
Mr. Landers then states the following: "Why are lawsuits a part of divorce? Because contrary to popular belief, divorce usually does not involve two people mutually agreeing to end their marriage. In 80 percent of cases, the decision to divorce is unilateral -one party wants the divorce and the other does not. That, by its very nature, creates an adversarial situation right from the start and often disqualifies mediation and collaborative divorce, since both methods rely on the full cooperation of both parties and the voluntary disclosure of all financial information.
Clearly, if you are starting out with an adversarial and highly emotionally charged situation, the chances are very high that collaboration or mediation might fail. Why take the risk of going those routes when odds are they might fail, wasting your time and money?"
I'm not going to bother addressing why this statement is completely false and misleading because that's already been addressed throughout this article.
Jeff then says, "The most important and most difficult parts of any divorce are coming to an agreement on child custody, division of assets and liabilities and alimony payments (how much and for how long)."
Very true, which is why it makes no sense to escalate the conflict, increase the distrust, and entrench people in their positions by unnecessarily engaging in combat.
The next piece of advice Mr. Landers provides is "Although you want your attorney to be a highly skilled negotiator, you don't want someone who is overly combative, ready to fight over anything and everything. An overly contentious approach will not only prolong the pain and substantially increase your legal fees, it will also be emotionally detrimental to everyone involved, especially the children."
I'm afraid that when "gladiators" and "warriors" are involved in an adversarial process, it's combat, no ifs ands or buts. It makes far more sense to find competent lawyers who consider themselves peacemakers and/or select a non-adversarial process than to try and find a "gladiator" or "warrior" who is not "overly contentious." After all, "outcomes are typically determined by the way in which the 'game' is designed."
Jeff then states, "Remember: Most divorce attorneys (or at least the ones I would recommend) will always strive to come to a reasonable settlement with the other party. But if they can't come to a reasonable settlement or if the other party is completely unreasonable then, unfortunately, going to court, or threatening to do so, might be the only way to resolve these issues."
Considering that lawyers (particularly litigators) are known to have a Viking-or-Victim worldview, what's reasonable? It seems to me that "reasonable" is in the eye of the beholder and is as subjective as the word "fair." In addition, might there by any chance that the attorneys he would recommend would be those who use him as one of their weapons in their combat?
Mr. Landers continues as follows: "If you have tried everything else, and you do end up in court, things can get really nasty and hostile. Up until that point both attorneys were 'negotiators,' trying to get the parties to compromise and come to some reasonable resolution. But once in court, the role of each attorney changes. Negotiations and compromise move to the back burner. Their new job is to 'win' and get the best possible outcome for their client."
Forgive me for pointing out the obvious, but "gladiators" and "warriors" always play to "win" and litigation is an adversarial process, whether or not the matter proceeds to court. Furthermore, "winning" and getting "the best possible outcome for their client" are often two very different things. In fact, if the lawyers wanted to "get the best possible outcome for their client", they would have been "knowledgeable about the processes and skills necessary to mitigate conflict and steer the parties toward non-adversarial negotiation, where possible."
One of the rare truths Mr. Landers told in his article was the following: "And don't forget, once you're in court, it's a judge who knows very little about you and your family that will make the final decisions about your children, your property, your money and how you live your life. That's a very big risk for both parties to take -and that's also why the threat of going to court is usually such a good deterrent."
Jeff ends his article as follows: "Here's my last word of advice about divorce alternatives: Weigh divorce options carefully. The bottom line is that every family, and every divorce, is different. Obviously, if you are able to work with your husband to make decisions and both of you are honest and reasonable, then mediation or the collaborative method may be best. But, if you have doubts, it is good to be ready with 'Plan B' which would be the litigated divorce."
The problem with his "last word of advice" is that for reasons very clearly set forth in this article, Mr. Landers significantly understated all of the situations in which mediation and collaborative divorce are far more appropriate and significantly overstated the situations in which litigation is necessary. Therefore, his advice isn't worth the paper on which it's written.
While I realize that I have meticulously destroyed any perceived credibility that Jeff Landers' article may have had, I want to make crystal clear that this is just one of an infinite number of examples of irresponsible "journalism" and the harm caused to families, children, and society as a result.
In fact, on March 8, 2016, I published an article titled "The Mediation Community Needs an Organization to Lead the Conversation, Shape the Media Narrative, and Change the Culture", after I "watched a segment on Time.com wherein Jill Schlesinger gave advice on how to purportedly 'Keep a Divorce from Killing Your Finances.'
Moreover, on May 7, 2016, I attended the 2016 Spring Summit and Expo presented by South Coast Collaborative Professionals, the theme of which was "Healers of Conflict Making a Difference." In his presentation, Bill Eddy, LCSW, Esq. said the following:
"Media shows adversarial conflict resolution for entertainment and gaining market share. Parents are often undermined by this larger adversarial media culture. Furthermore, children are learning fewer relationship conflict resolution skills as a result."
I wish I could disagree, but Bill Eddy is absolutely correct and the media's irresponsible and extremely harmful "reporting" and "journalism" has to do with the sad reality that "drama sells" and the media is only concerned about it's financial bottom line.
I cannot begin to tell you how many times I have been contacted by the media, asking if I am working with a client or clients engaged in high conflict divorce and whether that couple would be willing to engage in such conflict on television. I have consistently refused to assist them in that regard.
I have also been contacted on a great many occasions for commentary on pending or anticipated divorces involving celebrity couples. They always want me to comment on potential consequences stemming from the worst possible behavior in which they could engage. I've consistently refused to provide them with such commentary, instead providing them with my mediation-minded perspective. I've told them that the public who reads such articles should be given helpful and constructive information from which they could learn positive skills and approaches, rather than destructive drama. Furthermore, the actual celebrity couples involved might opt for a less destructive approach, if they were to learn of the information conveyed in the article.
When I was recently contacted by one such journalist, I responded as follows: "Considering that the only quote of mine that was ever published was from our first interview on Kim Kardashian, are you sure that your editor appreciates my approach and perspective?" The journalist responded as follows: "I understand. Sometimes I will email you a question or a couple questions and they don't end up being used because it's for us to get an idea on a lawsuit or what could potentially happen. I don't remember a time where I submitted your quotes and the editor said no to it. Usually, if they don't like our interview they'll ask me to go to someone else in which case the other interview will be used but I am just reaching out to you right now for this story. If you want to pass because you think it will be a waste of time, then I completely understand, but I hope that's not the case!"
In case you're wondering about my comment pertaining to Kim Kardashian, I was quoted as follows:
"And because of the couple's wealth, don't expect things to be resolved quickly, explains Mark B. Baer, a family law attorney and mediator, who has not advised Kim or Kanye. 'They both have more money to fight over the parenting plan. What ends up happening is the person who perceives to have lost that battle routinely goes back to court over and over instead of trying to work it out in the best interests of the child."
The reason the editors apparently don't like my commentary is because "drama sells" and I'm not willing to attach my name to irresponsible and extremely harmful "reporting" and "journalism."
I'm calling the media out because completely irresponsible and harmful "reporting" and "journalism" is by no means limited to the way in which it covers divorce and family law cases. As Bill Eddy said, "Media shows adversarial conflict resolution for entertainment and gaining market share." It also bears mentioning that "adversarial conflict resolution" is an oxymoron. People don't tend to resolve conflicts by engaging in an adversarial process, even though they may obtain a legal result.
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