IN THE EARLY 20TH CENTURY A LOBOTOMY WAS AN ACCEPTABLE MEDICAL PROCEDURE FOR CERTAIN MENTAL HEALTH CONDITIONS. It involved cutting away a small part of a patient’s brain. While some patients’ conditions improved after the operation, there were serious side effects. At best, spontaneity, responsiveness, self-awareness and self-control were often reduced. At worst, suicide and death followed – 5% of patients died.
Despite the risk of a bad outcome, it was a seemingly acceptable procedure up until the mid 1950s. The introduction of drug therapies offered safer alternatives. Drugs reduced the risk of harm and improved the chances of good patient outcomes. It should come as no surprise that physicians preferred these safer, more predictable and less expensive treatments to the extent that referrals to surgeons for lobotomies, relatively speaking, stopped overnight.
Throughout most of the 20th century, the positional-based adversarial process was seemingly an acceptable way of addressing relationship breakdowns. Solicitors would sit in their respective offices writing letters to and fro, doing battle on behalf of their clients, taking sides and trying to get one up on each other and possibly never meeting face-to-face until court. Yet once they met at court, they would naturally start to communicate face-to-face. Lo and behold, the case often settled – though rarely in a measured and principled way, and often in a ‘rushed-and-desperate-not-to-lose-in-court’ sort of way. At best, the process was slow and expensive. At worst, it fuelled rather than addressed the underlying conflicts. These effects had pronounced effects not only on the parties’ but also, more importantly perhaps, on their children.
Despite this, it was the widely accepted way to address relationship problems, at least up until the late 1970s. That was when mediation as we now know it was developed by John Haynes, an English Quaker, trade union negotiator and university lecturer working and living in the USA. Collaborative practice was dreamed up by the visionary US family lawyer, Stu Webb, in 1990 after being involved in a “case from hell”.
Both mediation and collaboration rely on encouraging mutually beneficial agreements resulting from an understanding of the underlying interests of the parties. In the models of these processes used in England and Wales, they are presided over by either a single project manager (the mediator) or two joint project managers (the collaborative solicitors). The aim is to achieve “win-win” outcomes rather than “win-lose” outcomes. And they do so in safer, more predictable and less expensive ways than the alternatives.
Yet whereas, almost universally and instantly, physicians recognised the benefits of drug therapies contrasted to the damage of lobotomies, the thousands of family solicitors in England and Wales who have trained in mediation and collaboration, are mostly still working in ways which are largely ineffective, expensive, slow, crude and potentially damaging.
Endorsing the Adversarial Process
Choosing correspondence as the main tool for addressing the multitude of problems associated with intimate partner relationship breakdown is like choosing a hammer to detach a nut from a bolt. It’s an endorsement of the adversarial process and a rejection of the client-focused alternatives. I am not aware of a single article, book or academic paper which recommends correspondence over face-to-face discussion as a way to conduct a negotiation. The contents of letters and emails are time-consuming to prepare, prone to misinterpretation and time-consuming to consume. The only worse ways to communicate that this writer can think of is by smoke signals or morse code.
Worse still, correspondence and the adversarial process mirror the very problems that a typical couple find themselves struggling with – clear communication. Solicitors inevitably find it difficult to avoid behaving towards each other just like many of their clients behave towards each other. Unwilling to talk, sending terse, aggressive messages: “Your dinner’s in the dog!”
None of these paradigms reflect the full scientific reality of how natural systems operate. This gives rise to the illusion of a “power-over” relationship with nature which has led to our current predicament.
Family Law deals with Relationship Problems
On the whole divorce proceedings, and their financial and parenting consequences, rarely present legal arguments. Instead they present problems mainly stemming from poor communication, and they are fuelled by emotional upset, a financial fear of the future and ignorance of the framework of the law. Most are simply not about the law.
Inevitably there are situations when there may be little choice but to engage the court process, such as in jurisdictional disputes. And there will always be those who need the protection for themselves, their property or children that only a court can provide. And then there are inevitably some going through divorce who, even with the best support available, are cognitively unable to make decisions for themselves, and so must hand the responsibility over to a judge. Even collectively, though, these are a small minority of cases and do not justify the numbers dealt with by processes other than collaboration or mediation.
We know from our experiences that collaboration and mediation lead to better client outcomes. Surely it must be wrong then for family solicitors to rely so heavily on correspondence. So why are the old ways still so popular?
So why rely on the adversarial process?
Because it is what is taught before full qualification. This makes it familiar, safe for the professionals and there’s always a judge to fall back on if things don’t settle.
Because collaborating is hard work. It takes more effort and requires good working relationships between family solicitors who have otherwise been trying to get the better of each other.
Because solicitors have more control over the process and the timing of its ending, whereas in mediation and collaboration the clients are in completely control of both.
Because working collaboratively or referring clients to mediation requires family solicitors to know themselves more fully and to step out of the way of their own egos.
Because referring work to a mediator might be good for the client, but it kills our ability to reach our billable hours targets.
Because working adversarially is slower and less effective. Which means it takes more hours of toil and so is financially more rewarding.
If the family law industry really wants to put clients first – and let’s not forget that many clients are in a pretty distressed state when they seek help – separation and divorce matters should be: automatically referred to mediation or collaboration; or, at the very least, addressed through phone (a piece of equipment which has been around, in the UK since Victorian times) or – hold onto your hats, because here’s a really crazy idea – Skype video.
Divorce should never be a war of attrition that continues until one or both of the parties are worn down emotionally or financially. Instead, working to a tried and tested interest-based process should be the default approach: agree the agenda; agree, identify and share any necessary data; ask questions about and understand the data; define any problem; develop options; redefine positions to interests; and negotiate to achieve a resolution. It’s as simple as that.
While physicians take the Hippocratic Oath (“do no harm”) to uphold medical standards, what would be the effect if family solicitors committed to an equivalent standard in dealing with relationship breakdown?
Stephen Anderson had been practising as solicitor for 15 years before deciding in 2009 that he could no longer be a part of a system that turns problems into disputes and disputes into long drawn-out, expensive and damaging battles between lawyers. That’s when he retrained as a family mediator. He now practices only as a mediator (with training in family, civil & commercial, workplace, elder and community). He is also a mediation child consultant, mediation information &assessment meeting (MIAM) provider, a professional supervisor of other mediators and a peer (youth) mediation installation trainer. Since 2016 he has been a director of the College of Mediators. He attends and speaks regularly on the UK, European and North American conference circuit and is widely known for his work in establishing online mediation as a legitimate way to work. He has helped write the online mediation standards for the Family Mediation Council. Stephen is the co-founder of Start Mediation, amediation practice in Ipswich, Suffolk.