Part Two - The Litigation Model --- The Past 150 Years

COLLABORATIVE LAW AND THE HISTORY OF METHODS OF RESOLVING FAMILY LAW CASES—by Leonard M. Roth and Jack H. Emmott III

The adversarial or litigation model of handling contested family law cases has remained relatively unchanged over the past century and a half. Under the litigation model, a dismayed and traumatized client, Sally, arrives at an attorney's office with a marital and/or parent-child dispute. The lawyer hears the facts and apprises Sally of the possibilities and options available to her under the existing law. The attorney is retained and Sally, now named the Petitioner, leaves the office to let the attorney handle the matter, emboldened by the attorney's words or still traumatized by the action about to be taken on her behalf. Sally feels lost. In a relatively short period of time, a petition is prepared, filed and served on the Respondent, Joe, usually at Joe's place of employment. Most likely, this is the first time Joe has been served with process or termed Respondent. Joe notices that there is a temporary restraining order issued against him and a hearing has been set for temporary orders and other matters, including requests to have Joe ordered to leave the homestead and his children and/or live under new and horrific rules, which will directly impact on Joe's being a parent and husband. Joe seeks legal counsel to thwart this terrible affront. The mirror image of what Sally experienced befalls Joe. Then Joe feels lost—so begins Armageddon. Rules and statutes and the courts will guide the parties' case and their every action. The lawyers appear to be in control of the process and are duty bound to walk the tightrope of time deadlines created by the court or face malpractice. Witnesses are needed to espouse and reinforce the parties' arguments. Side are taken. Friendships dissolve. The general public can hear their case as the court hears it. Retainers are soon exhausted and additional monies are due. Discovery, the acquiring of documents and evidence, starts in earnest and time commitments escalate along with the angst. Inventories are prepared. Soon, Sally and Joe are spending most of their time away from their kids and work and their relationship falls to an abysmal level. The attorneys assure Sally and Joe that this is the only procedure available. The children are showing adverse effects and the children's amicus attorney, who has his/her own set of fees, demands psychological testing and counseling for the clients and children. More fees are due. The irrevocable machinery of litigation rolls on unabated. The clients' frustration with the process is palpable. If an impasse in mediation occurs, the case goes to trial at some later date. The outcome and Sally's and Joe's "day in court" is not what each party envisioned. So, Sally and Joe leave the litigation process emotionally and financially battered and bewildered and angered. As in Sally and Joe's case, the adversarial system of handling cases is at best a win-lose process, or, more likely, a lose-lose process for the parties and, unfortunately, their children. Sally and Joe, each individually, wished for another way.