I was honored to be invited to a really cool meeting in Colorado Springs, Colorado, last week called Family Law Evolved: A Non-Adversarial Model for Modern Families Convening. Sponsored by the Institute for the Advancement of the American Legal System (IAALS), 21 of us gathered from all over the US to brainstorm the design of a non-adversarial legal system for family disputes. The group included family court judges, law school professors, court personnel, and mediators. We were in the foothills of the Rocky Mountains.
We were all aware of the problem: the adversarial legal system, in which a lawyer provides zealous advocacy for their client, doesn’t work for family disputes. Immigration and criminal defense attorneys need to provide zealous advocacy for their clients – individuals who are going up a whole system that is often stacked against them. But that doesn’t work well with people who will continue to work together as coparents and as family members.
So what would a new family-oriented legal system look like?
We split into 4 groups to brainstorm from different points of view in a hypothetical custody dispute: the angry parents, the children, the grandmother, and the judge. My group took the perspective of Joyce, a tired grandmother who is watching her 2-year-old grandson and using her retirement savings to foot the bill for her daughter’s divorce. Our current divorce system would not acknowledge Joyce’s very existence, even though it affects her life greatly. We figured out that Joyce needs a voice in the process, some recognition for her contributions, and to know when this would be over.
Our brainstorming went something like this:
Our model started with a portal – in the courthouse or in the community – that was focused on PROBLEM-SOLVING. We felt that first it was important to have a compassionate navigator to welcome Joyce (or one of the spouses getting divorced) and LISTEN to her. The Navigator would help identify what problems need to be solved, who would solve them, and what outcomes the parties want and need (e.g., to protect the kids from being harmed as much as possible in the divorce process).
The Navigator would then help them find the information they need about resources and services available, like financial specialists, therapists, divorce coaches, and parenting coordinators. And the Navigator would help identify the best process for the family’s decision-making – like mediation, collaborative law, early neutral assessment by court personnel, coaches, or a court hearing. And we would need to bring in the voices of family members, like children and grandmothers, into the divorce process.
The Navigator would also screen for domestic violence or substance abuse and complex issues, which would be directed to a court process. This would free up the courts to focus on the matters that really need their attention.
On the second day, we each ran through our models, and I was surprised to realize that the other groups came up with ideas that were remarkably similar to ours. Then we talked about what obstacles we might face. Mainly, we thought, the pushback would come from matrimonial lawyers – and from a court system that favors inertia. But we talked about the cost savings and the value to families. We also talked about making these resources available to all families in our communities.
Some of the judges had already implemented programs with some components of these ideas in their courthouses. And my practice, which centers on mediation, really does meet this need in a big way. But it would be a welcome sea change if mediation were the first thing people thought of when they thought of divorce and family restructuring.
What will happen now? I think IAALS will come up with a paper discussing our work and making recommendations. Then, frankly, I don’t know. But it was amazing to imagine a future for family law with smart, compassionate, dedicated, and experienced people.