In my line of work, Mediation and Collaborative Practice fall under the umbrella of what has been coined alternative dispute resolution (ADR). Other methods of ADR include arbitration and conciliation.
I was reflecting recently that it is rather ironic that what should be the first step for a couple considering divorce (in my opinion, at least) is defined by a word like “alternative”. Cordial attempts to arrive at an equitable divorce settlement with the help of trained professionals definitely makes more sense as a first effort than does jumping headfirst into costly and lengthy litigation. History backs me up on this as well; traditionally, the mediating efforts of third parties have been used in divorce cases long before courts and attorneys arrived on the scene.
This same anomaly in word choice exists in the world of medicine. Today, we use the term “alternative medicine” to describe methods (such as homeopathy or chiropractic) that were in use long before the advancements of modern medicine.
I am not sure when and where this subtle shift took place, but along the way, what used to be the go-to method of handling divorce (or medical) issues gradually became referred to as “alternative”. I am sure the transition was consciously fueled in part by those seeing lucrative opportunities in expanding the reach of the legal and medical professions. No doubt it was also a side effect of what was truly worthwhile progress at one point – but the paradigm shift has now gone too far.
A Departure from Idealistic Origins
This realization hit home for me recently in a powerful way when I heard a radio ad one morning as I was getting ready for work. I listened with distaste as a law school proudly asserted that they “trained barracudas”. At first I shook my head, muttering that this kind of language is what gives attorneys a bad name. But when I heard the name of the law school and realized with shock that it was my alma matter, I became downright livid.
I sat right down and composed a lengthy letter to the administration of Suffolk University, expressing my outrage. I shared how the tone of their ad campaign was upsetting and offensive to me as an attorney, a dispute resolution professional, and an alumna. Here are a few excerpts:
“I believe the emphasis on ruthless adversarial behavior demeans the profession. How you can think that promoting such unprincipled behavior and encouraging the public belief in adversarial posturing is something to be proud of leaves me incredulous. The education I was proud to receive did not put bluster above the best interests of the clients.”
“I cannot help but believe that Gleason Archer [the founder of Suffolk] would have shared my outrage. You are dishonoring not just your alumni but also your founder and his chosen profession. He founded this school to broaden and grow the profession, not to turn it into a farce – as you have done.”
“I am now ashamed to be associated with this institution as it, sadly, no longer aligns with my values.”
Historically a Respected Profession
While many law schools today have courses and programs that teach students about “alternative dispute resolution,” they are often treated as secondary to the litigation approach. If the minds of young law students are being filled up with adversarial education and aggressive tactics, it is no wonder that the legal profession is typically held in such public contempt today. Historically, law was one of the most respectable professions. In Greek and Roman times, those trained in matters of the law were considered valuable assets to society. Despite the famous Shakespearean quote of “Let’s kill all the lawyers”, this level of respect still existed up until a couple of centuries ago. (Incidentally, that quote has been grossly taken out of context. In Shakespeare’s Henry VI, the protagonists were trying to overthrow the king. They needed to get rid of the lawyers so they would not be caught. Shakespeare meant the line as a compliment to those who instilled justice in society.)
Traditionally, the role of attorneys was as more of a “counselor at law” than a litigator. They tried to work with people peacefully to solve their problems as efficiently and justly as possible. In today’s culture, lawyers often prefer to take on a gladiator or warrior complex instead. For those originally attracted to the field of law because of a deep desire to help people, this departure in practice from the ideals of true justice is truly worthy of lament.
Count the True Cost of Litigation
It is important to consider at the outset of the divorce process what the true cost of going into legal battle will be. It extends far beyond the checkbook. Contentious and expensive litigation affects ongoing relationships and quality of life for all involved, including children and extended families, for years to come.
Do you truly want to entrust a matter as vulnerable, personal, and long-reaching as a divorce settlement to someone with a “barracuda” mentality?
While litigation is undeniably the only choice for some couples, a negotiated settlement is far more appealing and cost-effective for a far greater number. Trying to resolve disputes amicably through Mediation or CP is usually the best first choice in most situations – and they allow for a better quality of life throughout the process.