This is a story about two different relationship paradigms,
the rate of change of these models and the role of these models in family
law.
The relationship between a person’s perspective
in life and the conclusions reached from that perspective was emphasized
in the Collaborative Divorcesm seminar I recently attended. While
the analogy is to the visual, the relationship influences both the substance
and the meaning of an observation. The blind men and the elephant analogy
showed the substantive element of the relationship. The ‘what it is’
aspect of the elephant was different based on the specific partial information
of each of the blind men. But there is a second level of relationship between
perspective and conclusion – the level of meaning. This is shown by the rhetorical
question, “Is the glass half empty or half full?” The effectiveness
of the collaborative professional is enhanced by a broad understanding of
the relationship paradigm in divorce litigation.
The problem is not change – things are always
changing – it is the asymmetry of the rates of change we encounter.
Imagine traveling down the middle lane of a freeway so wide you can’t see
the shoulder on either side. Life is kind of like that,. We travel
along occasionally sending a gesture of peace or contempt, depending
on how the day is going, to the drivers in front, behind or on either side
of us. While we may speed up or slow down together, the speed
we’re traveling isn’t particularly relevant if what we’re concerned about
is our relationship with these other drivers – our rights if you will.
Our expectation of when we will get to our destination vis-à-vis our
fellow travelers is set and we all share the journey. Then comes along
a driver from Illinois, in one of those hot Illinois cars. (Feel free
to insert the neighboring state of your choice.) This person goes at
a different speed, changing lanes and otherwise upsets the orderly relationship
we had with our fellow travelers on the highway of life. We could all
drive like that – after all they do in _____(fill in state of choice) and
it would probably work. They generally survive the trip to the office
and they cover the miles in about the same time we do. It’s just
that their way is so confusing to those of us who really do own the road.
The road to divorce is like this.
A domestic dispute resolution
model exists in every culture – be it the civil courts in western nations,
the village elders in the jungles of Bali or the commissar of domestic affairs
in communist China. Our model is changing, and changing quickly
in relation to the capacity for change in the social system we’ve assigned
to handle this task: the courts. We can benefit those we serve by understanding
the paradigm behind the courts and the impact caused on their good order
occasioned by ‘shortcuts’ society has demanded.
To make sense of the
divorce process in the courts it helps to understand the courts historically.
Our system of common law justice goes back to courts of Henry VIII and 16th
century England. Remember that Ole’ Marryin’ Hank wanted things
his own way, and that’s pretty much what he got. He well understood
the details of absolute power. Because he couldn’t be everywhere,
he appointed loyal little kinglets – ‘judges’ he called them – to act in
his place and to ‘hold court’ in his absence and to decide that which needed
deciding. Recalling the fate of Henry’s Chancellor, Sir Thomas More,
who didn’t quite suck up as required, most judges tried their best to decide
things exactly as Henry would have if he were not out hunting or something.
This predilection in judges – to think they are the King’s ‘special guy’-
has proven to have remarkable staying power, showing up in divorce
courts today.
In everyday life we
do things with other people because we have agreed. Where two or more
people agree to do – or not to do – something each affecting the other, it
is called a contract. This is a great idea and it works pretty well
right up to the door of the courtroom where, thanks to Henry and his progeny,
it stops working entirely. It is sort of like agreements are
Superman and the courtroom is full of Kryptonite. Once someone
– call her the Petitioner – asks the judge to intervene and end the legal
relationship society must respect - marriage - she submits herself to the
authority of ‘Henry’s Guy’ – the judge. By a bit of legal Ipse
Dixit (remember Henry was as much an absolute ruler then as the IRS is now),
when the paperwork is handed to the other guy, the Respondent, the court
has power over him as well. From this point on, it doesn’t matter what
the Petitioner and Respondent want or what they agree to. It only matters
what the judge orders. An agreement between the parties concerning
the subject for which they are in court has no legal or binding effect at
all. It is not a contract and the law will not enforce it.
Once the parties are ‘in court’ all that matters is what the judge orders
them to do or to refrain from doing. Once the court has
made an order, the parties are not at liberty to ignore it without risking
the consequences of contempt of court. Fortunately, we don’t have ‘divorce
police’ who independently investigate and enforce the orders of the judge.
Our system is to wait until one of the parties comes into court and whines
that the other party is ignoring the order before enforcement is undertaken.
There are serious and valid reasons this is so, and the success of our society
and our civil justice system over the centuries tells us that we mess with
this paradigm at our peril.
This operational paradigm
in the courts is sort of a ‘Tastes Great’ to Collaborative Divorce’ssm ‘Less
Filling’. In Collaborative Divorcesm the ‘power’ comes
from the parties, not the judge. So why do bailiffs still carry a gun?
This is where the AFLAC
duck comes in. The duck represents the magic of modern make-up
technology - or legal shortcuts – allowing one thing to look like another
quite convincingly. For example, while you wouldn’t think so
at first glance, you can tell from subtle body configurations and that wide
and cheerful smile that the AFLAC duck is played by Julia Roberts with a
voice over by Gilbert Gottfried. Similarly skilled lawyers disguise
agreements between the parties to a divorce so that they look like court
orders. The converse is also true. Judges, needing to save
time, wish to order the divorcing parties before them to do what they agree
to do. After all it is their marriage, their children and their future
and judges, the legacy of Henry VIII not withstanding, are people of their
times.
In society’s rush to
identify and protect individual rights and freedoms, we have begun to think
that the marriage belongs to the husband and the wife. But it is not
so. As the ghost of Big Hank reminds us, the marriage belongs to the
king; that is, to society as a whole. The legal status of marriage
must be respected by others such as insurance companies, mortgage lenders
and the like and as such it goes beyond consent or contract purely
to be personal to the parties. The dynamic between the individual
and some or all of the rest of society is expressed in the concept of ‘rights’.
Although the specifics of the case deal with the individuals before the judge
as parties, the principles the court must protect resonate to society as
a whole. The process by which rights valuable to everyone in
society is expressed in the lives of the Petitioner and Respondent is called
litigation. Most lawyers understand the difficult path an individual
takes through the thicket of the law and most lawyers want to take such shortcuts
through the briars as are possible. These shortcuts are often
in the form of something called a ‘stipulation’. A stipulation is the
agreement of the parties to jointly ask the judge to order them to do what
they want to do. Like the make-up artists who turn Julia into
the duck, these shortcuts leave the impression that it is the will of the
parties – in the context of the privacy of their marital relationship and
the privacy of its dissolution – that is at work. That is the image,
but not the reality, of what is afoot in the courthouse.
In their concern for
the welfare of the parties and the children as individuals, it is easy for
collaborative professionals to see the issues of dissolution in terms purely
private to the individuals involved. It is also easy to see the
emotional anguish and personal weaknesses of the parties as a fault of ‘litigation’,
as if it was created to make the difficult more painful. It is wise
for the collaborative professional to keep in mind that it is the absence
of a functioning civil justice system that spawned segregation and it is
the presence of such a system that had a large part in setting us free.
Collaboration works as an alternative to litigation, but not in spite of
it.
Points Summary
·
Relationships, like elephants, aren’t always as they seem.
· The
human tendency to ascribe meaning to an observation is influenced by our predisposition.
· The
authority paradigm between court and the parties in divorce exists for a
reason, namely to support the concept that marriage is a public as well as
a private matter.
· The
rate of a change in the courts and of society isn’t matched and this lack
of matching affects our perception of the litigation process.
· Collaborative
professionals best serve their clients by understanding the divorce litigation
from a historical and sociological perspective as well as from the humanistic
and private relationships involved.
