Divorce Corp. Review, Part 5: Divorce Reform in the Real World

This is part five of a five-part review of Joseph Sorge's documentary, "Divorce Corp." See also:

Here is Joseph Sorge's Divorce Corp. in a nutshell. It is the work of a disgruntled ex-spouse with an axe to grind with divorce attorneys and judges. It paints an overly negative and disingenuous picture of divorce in America, while painting an overly positive picture of divorce in Scandinavia, without regard for fundamental socioeconomic differences. It relies on unsubstantiated statistics and out-of-context quotes by family law professionals. It makes the absurd suggestion that the divorce "industry" is characterized by collusion amongst family law professionals, including judges, to destroy families and take their money, and consequently the entire system should be scrapped. It makes all of these arguments by highlighting the stories of purportedly aggrieved protagonists who, upon further research, have far less sympathetic stories than the highly filtered versions Sorge shares.

But even after stripping away all the hyperbole and misinformation in Divorce Corp., it does get one thing right: far too many people are spending far too much time, money, and emotional capital getting divorced. Families are being unnecessarily destroyed and bankrupted through divorce litigation.

We need to change how Americans get divorced. But how?

There are viable alternatives to divorce litigation.

One of Divorce Corp.'s greatest failings is its complete lack of treatment of alternatives to litigation when divorcing spouses do not agree on the terms of their divorce. How should divorcing spouses resolve disputes over parenting, property division, and support? What if they don't agree who should live in the marital home? What if they don't agree about how to pay for their children's education and extracurricular activities? Even a relatively straightforward divorce raises many questions that cannot be answered by a purely administrative process.

In highlighting the toxic nature of divorce litigation, Sorge had a fantastic opportunity to discuss alternatives to divorce, including mediation and Collaborative Divorce. In fact, he had an abundance of footage on the subject from David Hoffman, parts of which he has since released on YouTube.

In Divorce Corp., Sorge only includes Hoffman's "tinderbox" comment, and the only mention of mediation in the entire film is single sentence to the effect that efforts to introduce mediation in the family courts have not caught on due to financial incentives to litigate. The result is that anybody who watches Divorce Corp. will come away thinking the family court system is a total failure, without any meaningful information about the alternatives.

As a family law mediator and collaborative attorney, my cards are already on the table. Mediators are sometimes accused of viewing the world with rose-colored glasses, but I have made it clear elsewhere that I do not think all cases are suited for out-of-court resolution. The fact remains that a great many divorces are well-suited for mediation or Collaborative Divorce. On the whole, these processes permit for faster, less contentious, and more durable divorce agreements than what spouses can hope for from a litigated divorce.

There is an information gap about alternatives to divorce litigation.

The problem is, many people have not heard of divorce mediation or Collaborative Divorce, and even those who have heard of them are often insufficiently informed about the benefits of non-litigated divorce. Using Google search volume as a proxy for public education, we can easily quantify this information gap:

Nationally, people are more than four times more likely to search for a divorce attorney than for information about collaborative divorce, and more than ELEVEN times more likely to search for a divorce attorney than for a divorce mediator. Certainly, some people who consult with a divorce attorney will proceed to divorce mediation or Collaborative Divorce, and many attorneys will help their clients negotiate separation agreements without litigation. Still, we should be concerned that divorcing spouses' first instinct is to "lawyer up," rather than to seek information about amicable divorce processes.

How do we close the information gap?

Start with mandatory legal education about alternatives to litigation.

Across the country, case law is the cornerstone of legal education. Law students are taught the law through dissection of appellate decisions, cases that went to trial and where the verdict or judgment was appealed to a higher court. Some higher level courses give greater weight to statutes and administrative law, but even those are often viewed through the lens of litigation over statutory interpretation and administrative decisions. Thus, the history of legal education has been tremendously litigation-centric.

Thankfully, legal education is changing. Without abandoning case law and the importance of precedent-setting litigation, law school curricula are increasingly giving more attention to out-of-court dispute resolution, in some cases making such studies mandatory. In recent years, Harvard Law School added a problem-solving workshop to the first-year curriculum, in which students learn to "confront client problems ... before the full range of options is explored, and before a course of conduct is chosen." For better or worse, many law schools model their curricula after those of top tier schools, so we can expect to start seeing more and more such programs across the country. This translates to more and more lawyers trained in case analysis and exploring problem-solving alternatives to litigation.

I would take this trend one step further and make courses in negotiation and alternative dispute resolution mandatory for all law students. We need more lawyers who understand the difference between positional bargaining and interests-based negotiation. We need more lawyers who recognize that positive outcomes in dispute resolution are not always quantifiable. We need more lawyers who know how to engage parties in difficult conversationsproductively and explore creative options for settlement. In short, we need more lawyers who are not blinded by a singular view of dispute resolution. Approached by a divorce client, such lawyers will be far less likely to impusively rush to the courthouse, and far more likely to provide the client with a productive and dignified divorce process.

Get the word out about alternatives to divorce litigation.

As more and more lawyers embrace alternative dispute resolution, including divorce mediation and Collaborative Divorce, the public will be exposed to fewer and fewer horror stories about divorce. Woeful tales of acrimonious divorces lasting years and costing hundreds of thousands of dollars will be replaced with far less dramatic stories of respectful – albeit emotionally trying at times – divorce processes. Thus, word of mouth will increase public awareness of alternatives to divorce litigation.

We need more direct outreach, too. Across the country, organizations such as The Divorce Center are running seminars to educate people about the divorce process, and blogs about divorce mediation and Collaborative Divorce increase the likelihood that people's Google searches will turn up useful information about alternatives to divorce litigation. There is a lot more that could be done in terms of direct outreach, and I hope we will see some creative approaches in the next few years, perhaps facilitated by technology.

Fund alternative dispute resolution initiatives in the family courts.

Here in Massachusetts, it is no secret that the courts are in a budget crisis (contrary to Divorce Corp.'s assertion that increased divorce litigation means increased funding for the family courts). Our family courts are barely able to meet their existing obligations, much less divert funds into programs that are perceived as non-essential. In 2008, budget constraints led the Massachusetts Trial Court to cut funding to court-connected mediation programs.

Some court-connected services still operate. In Suffolk county, for example, the Suffolk Early Resolution Volunteer (SERV) Project offers pro bono conciliation services, and MWI's Family Mediation Program "helps income-eligible parents in crisis work out effective co-parenting plans." In Middlesex County, the Community Dispute Settlement Center provides "up to six hours of free mediation services for eligible, separated couples, married or not, who are dealing with conflicts about their children" (Annual Report, Fiscal Year 2013). Within the courts themselves, probation officers continue to meet with litigants to help them identify potential opportunities for temporary or permanent case settlement.

With more funding, these and similar programs could be expanded, increasing access to dispute resolution alternatives for family court litigants. These programs are essential precisely because of the information gap described above; far too many families end up in family court without ever knowing that alternatives even exist!

Conclusion

I must admit that I am relieved to be wrapping up my treatment of Divorce Corp. It is not a film that stands up well to prolonged scrutiny. At every bend, there is another partial truth or misrepresentation that in all fairness to viewers ought to be exposed. At the end of the day, my advice is simply this: don't watch it. You will not learn anything new or useful, and anything you do learn might well be false. You don't need Joseph Sorge's disingenuous hatchet job to know that divorce litigation is toxic and really only necessarily in limited circumstances. Instead, I encourage anyone interested in the U.S. divorce system to educate themselves about the alternatives to divorce litigation, including divorce mediation and Collaborative Divorce. If you know somebody involved in a divorce, ask if their lawyer has properly presented their options to them. If you are moved to political action, ask your state or municipality to fund alternative dispute resolution programs in your local family court.

Whatever your view of divorce lawyers and judges, we can all agree that reform is needed; there are better ways for most people to get divorced. Hopefully, the next filmmaker who comes along will give more attention to avenues for change, and less attention to his or her own disgruntled agenda.