Some family law disputes belong in court.
Wait, what? But Rackham, aren't you busy rebranding yourself as a family law mediator and collaborative attorney? Aren't you encouraging people to work through their differences and empower themselves to reach agreements outside of the toxic litigation setting?
Yup, that's all true.
And some family law disputes belong in court.
Family Court Exists for a Reason.
In an ideal world, every family in turmoil would be able to sit down and work together to decide what their interpersonal and financial relationships will look like going forward. Massachusetts courts are increasingly finding ways to channel family law cases through alternative dispute resolution mechanisms, including mediation and conciliation (essentially a form of evaluative mediation conducted within the courts). However, some situations truly benefit from court oversight, at least initially. Here is a short list of some clients I have represented whose cases fell into that category:
- The mother with an out-of-wedlock child, where the father was unwilling to move beyond his unrequited love and make decisions in their child's best interests.
- The wife who fled to Massachusetts from another state with her child, who was in such fear for her physical safety that she did not want her husband to know their new address.
- The family members who were being deposed in connection with a relative's highly contested divorce, and needed their own legal rights protected in the process.
- The father who gained emergency custody (which ultimately became permanent sole custody) because of the mother's physical abuse of their child.
Every experienced family law attorney will be able to recount cases where they were grateful for court involvement, even if the case ultimately settled out of court.
Family Court Should Not Be a Given.
Having said that, too many family lawyers are too quick to start the litigation process. If you ask a family lawyer how to get divorced, and his or her first answer is, "File a complaint for divorce," it could be because the attorney sees red flags in your case and wants to get the court involved -- or it could be because the attorney has blinders on and cannot think beyond the nuclear approach to divorce.
Most families in turmoil do not have such insurmountable differences that court intervention is required.
Most parents need a dispute resolution process that preserves communication channels, not one that pits them against each other and breaks down those channels.
Mediation and collaborative law are better alternatives for the vast majority of family law disputes — but not all of them.
Know Your Options: Mediation, Collaborative Law, and Litigation
When you consult with a family law attorney or mediator, you should expect them to be honest and open with you about your options. They should be able to describe the relative merits of mediation, collaborative law, and litigation. Since I began mediating, I have not hesitated to pass along litigation clients to other attorneys. There are also many family law attorneys who encourage their clients to try mediation or collaborative law, even though those options are generally less lucrative for the attorneys than protracted litigation.
When you consult with a family law attorney or mediator, look for the blinders -- and if you see them, consider getting a second opinion.