by Grier Raggio
Raggio & Raggio, P.L.L.C.
Recently, there has been significant national attention paid to efforts in a number of states, including Illinois, Iowa and Michigan, to repeal blanket no-fault divorce laws and re-establish fault as a necessary ground for divorce, particularly when only one party wants the divorce and when the marriage has lasted more than 10 years and/or minor children are involved. Most divorce Judges routinely order mediation in most cases.
While the goals of the efforts are defensible — preserving marriages and protecting children by making divorce by one party more difficult — we need to turn the clock forward, not back.
Lessening the rate of divorce no doubt would have some positive social consequences, but the courts do not have the expertise, ability or time to accomplish them — nor is it their proper role. We need to created educational programs to teach people how to establish good marriages in the first place, rather than launching an after-the-fact effort by the courts to save bad ones. And while restoration of fault would probably make more money or the matrimonial bar, many of us who have experienced the wastefulness of litigating fault would not be happy with such a step backward.
In fact, the recent attention that has been given to fault is unfortunate because it is distracting attention from a larger and more important trend in divorce reform. Rather than add burdens to the court system by bringing back a more tortious and litigious divorce process, efforts are under way nationally to unburden the courts and make the ending of bad marriages a less stressful and adversarial process through mediation.
These efforts need to be supported. The sad legacy of fault in divorce is that our legal system has proceeded on the assumption the parties were adversaries. Whether they really were, whether they wished to be or whether it even made any sense for them to be quickly became irrelevant. Like every self-fulfilling prophecy, in assuming that they wee adversaries and in then organizing them as such, that is exactly what they became.
Ironically, for many years divorce lawyers in America turned their backs on mediation, viewing it at best as second rate justice. Having left the mediation work to non-lawyers, often therapists, they were able to persuade themselves that the results had fulfilled their prophecy.
All of this is changing. In increasing numbers, experienced divorce lawyers are stepping forward to learn the skills necessary to work with divorcing couples in this way. Increasingly, they are recognizing that this impetus toward mediation is consumer-driven: It is what the public wants.
Nor is that hard to understand. In an important sense, divorce lawyers are legal undertakers. They bury dead marriages. funeral should be conducted with dignity, but they should not cost any more than dignity requires.
Litigation does more than cost money — it takes time and prevents divorcing couples from getting on with the business of their lives.
Most important, litigation can do a great deal of damage. This is somewhat true as a generality, but in non-domestic cases, litigants are usually strangers or, if they had a relationship in the past, are unlikely to h ave one in the future. For most divorcing couples, however, that is not the case. They may not want to have to do a lot of business with one another in the future, but if there are children involved, the relationship will continue to exist in an altered form. Mediation can make that future relationship less stressful; litigation is likely to lead to endless strife.
The second reason for the growing acceptance of mediation is the attitude of the courts. Judges traditionally do not like matrimonial matters and prefer to see property and custody disputes settled our of court. Divorce mediation not only offers that as a possibility, it makes it a priority. As a result, state after state is creating our-related mediation facilities.
Responsible lawyers recognize that though it may be necessary to resort to litigation, it should be used only after other options have failed. And, somewhat to their surprise, divorce lawyers are finding that they enjoy being divorce mediators, that it is challenging and rewarding work. Litigation, after all, takes its toll on everyone, lawyers included.
For many lawyers, divorce mediation has come to represent a welcome respite from the courtroom wars. Mediators’ ranks now include some of the most experienced divorce lawyers in the country, and the American Academy of Matrimonial Lawyers now trains and certifies its fellows as mediators for family law problems.
Most divorce Judges now require mediation in almost all caes, because they find that it keeps the vast majority of cases from becoming before the Court.
Counselors at Law
Finally, divorce mediation is serving another function. It reminds divorce lawyers that we are counselors at law as well as attorneys at law.
It also helps us counter the public suspicions that divorce lawyers are more interested in creating problems than in solving problems. In increasing numbers, quality matrimonial lawyers are no longer willing to leave mediation to non-lawyers and are embracing mediation for family law.
A great deal of progress is being made toward saving families from protracted, scarring and financially ruinous divorce litigation. Lawyers and their clients both stand to gain from this improvement. States must resist the political pressure to take a giant step backward. Divorce reform needs to move further ahead, not back to past mistakes.