I take issue with many things said in the Divorce Corp. documentary, and my focus for today’s post is the statement “The court System is designed to create conflict.” To the contrary, the court system is where civilized people go to resolve conflict that they cannot fix on their own. Conflict comes to the courthouse with the litigants.
The adversarial system of justice has served humankind well for longer than our nation has been in existence, so it should be no surprise to anyone that litigation increases conflict before the resolution. Litigation and the adversarial process are rigorous and designed to permit people in conflict to get their day in court. There are always winners and losers in litigation, and even the party who “won” often does not feel like the victor. Where should people resolve conflict they cannot handle if not at the courthouse? Mediation and collaborative law are other options, but people need to be educated about them.
I do agree with the documentary makers that litigation and the adversarial process is not well suited for family law matters. I’ll go a step further and say litigation isn’t really good for any conflict where the parties need to have a good relationship in the future. People tend to feel better about resolutions they create for themselves and they tend to honor those resolutions much better than something a court hands down. This fact and the overwhelmed justice system are reasons why parties are required to mediate their dispute at least once before having a final trial. A good mediator who knows how to size up people, conflict, and break conflict down into manageable parts serves the litigants well. The overwhelming majority of civil cases and family cases resolve at mediation.
The documentary disparages mediation – at least as it exists for family law cases in Sacramento and Marin Counties in California. Next time, I’d like to take a look at mediating family law disputes in Houston, Texas.