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Journal Issue: Children and Divorce Volume 4 Number 1 Spring/Summer 1994

Historical Perspective and Current Trends in the Legal Process of Divorce
Sanford N. Katz

Divorce and Decision Making

Throughout this article, judges and lawyers have been referred to as the major decision makers in the divorce process. This is so because, as stated previously, divorce uses a judicially managed adversarial model in a court setting for determining an outcome. The adversarial process for divorce has been subject to major criticisms because it has been thought of as creating antagonists. Use of the term "versus" in the title of a divorce case pits husband against wife. The alternative approach could be to label a divorce case as "In the Matter of the Divorce of Husband (Name) and Wife (Name)."

Is the judicially managed adversarial model always appropriate for divorce? Because, as with other civil matters, the legal costs of divorce have increased dramatically as a result of such factors as attorney's fees and the costs of hiring experts, there has been a consumer demand both to simplify the divorce procedure and to make divorce available without using a lawyer. In response to that demand, six states (California, Colorado, Indiana, Minnesota, Nevada, and Oregon) have enacted legislation providing for summary dissolution of marriage, a form of divorce that does not require the parties to make a court appearance or to use a lawyer (although they may still do so), but merely to file a form with the appropriate government body. The legislation addresses uncomplicated divorce. Thus, as a general statement, it may be said that summary dissolution provisions apply to cases in which the parties have been married for a short length of time, have limited assets, have no children, and mutually desire a divorce. It should be emphasized that summary dissolution is a formal method of terminating a marriage because public documents must still be completed and officially filed and approved. (Indeed, no American jurisdiction permits a private, informal, unregulated contract of divorce.) But unlike the conventional formal adversarial model managed by a judge who makes the decision, in summary dissolution it is the parties themselves who are the principal actors and decision makers, not lawyers or judges.

A development related to summary dissolution is the simplified divorce procedure. A simplified divorce procedure (called summary process or divorce by mutual consent in some jurisdictions), unlike summary dissolution, requires a court appearance. However, the divorce is granted on the basis of mutual consent of the parties, rendering the court appearance a mere formality. Such a process also lessens or eliminates the need to procure a lawyer. Some form of simplified divorce procedure has been adopted by Alaska, Arizona, Connecticut, Florida, Hawaii, Illinois, Mississippi, Montana, Ohio, Tennessee, Washington, and Wisconsin.63 Surprisingly, there has been little commentary or analysis concerning summary dissolution or simplified divorce. Therefore, it is difficult to assess how many couples have used these procedures with or without legal counsel. However, the advantages of summary dissolution and simplified divorce are clear. They decrease the costs of obtaining a divorce by streamlining the divorce process and by rendering it less time-consuming both for the divorcing couple and for court personnel. These procedures may be an attractive model for many states to adopt if the costs of divorce continue to rise out of the reach of an increasing number of people.

Mediation

In complex divorce cases—those in which the custody of children is in dispute and where complicated property issues are to be resolved—divorce by registration or summary dissolution procedures may be inappropriate. A major question is how to resolve complex cases in the most efficient and civilized manner.

There is no question that people tend to respect decisions in which they have had some input or, at least, the opportunity to be heard and to have presented their views. This is true with regard to complying with laws on a broad scale or making decisions on a personal level. Applying this principle to divorce means that spouses who participate in the decisions about their children and about their finances are more likely to comply with those decisions than are those who have a decision imposed upon them without their having had an opportunity to be heard.

In contrast to decisions imposed by lawyers and judges, mediation promotes party self-determination and decision making by consent. Although mediation has been a major method of resolving disputes in the labor field as well as in family counseling settings, its use in divorce on such a large scale is relatively new. Its focus in divorce is on resolving a variety of family issues which become crucial for a divorce but may continue to exist in some form or another after a divorce decree is issued. Therefore, unlike mediation in other settings, mediation in divorce must take into account that the parties may continue to have a relationship after the divorce judgment.

The mediation process facilitates the effectuation of a formal agreement in a relatively informal atmosphere using a presumed neutral third party as mediator. The mediator, in helping the parties to come to an agreement, may help clarify issues, suggest possible accommodations and alternatives, assist the divorcing couple to develop their own parental, financial, and property agreements, and help promote decision making within the family. Mediation differs from courtroom litigation in that it is not adversarial in nature. Instead of each party's retaining a lawyer who advocates for him or her, the parties speak for themselves and there is usually only one neutral mediator.

There are several advantages to the mediation process with an experienced mediator. It may be less expensive and more expeditious than protracted courtroom litigation. Mediation may be a more humane process than an adversarial proceeding and, in some instances, may be better able to discover and address the emotional issues that may be having a negative effect on resolving practical legal problems. Lawyers (especially those who specialize in litigation) in an adversarial proceeding are often accused of actually reinforcing conflict between the parties and creating obstacles to settlement. In some instances, this may be true. Because mediation is nonadversarial, many technical legal issues, like procedure and rules of evidence, are set aside.

The mediation process in divorce, however, poses a few potential problems. The leading writers in the field suggest that mediation between people of unequal bargaining power tends to lead to agreements reflecting that inequality.64 Therefore, mediation is particularly appropriate for parties who have already achieved some independence and have relatively equal bargaining power, but may be less appropriate for parties of unequal bargaining power.

The concept of divorce mediation has not yet gained complete acceptance by the general public because many divorcing couples seek lawyers first, and the lawyer's initial response may be to rely on traditional litigation strategies. Generally, the highest level of participation is found in compulsory mediation programs such as those found in California which, in 1980, made such mediation mandatory for contested custody and visitation issues. Today, more than 30 states have such a mandatory mediation requirement. Voluntary mediation programs do not attract a substantial number of participants. This has been attributed to the legal community's somewhat neutral attitude toward mediation and the public's lack of information about mediation as an alternative to the adversarial process. However, researchers find that those who undergo the mediation process achieve a more successful outcome both in the short term and the long term than do their adversarial counterparts.65 Because parties are often more satisfied with the agreements which they, themselves, have forged through mediation, they are more likely to follow the terms of those agreements than court ordered settlements. Mediation has not met with unanimous approval from the legal community.

When mediation was first suggested as an alternative conflict resolution mechanism, it was criticized by some lawyers, who saw it as an intrusion by nonprofessionals. It was said that, just at a time when divorce was becoming highly complicated because of the newness of equitable distribution, lay people were becoming involved with decision making in the divorce process. How can a nonlawyer know the complexities of marital property laws when lawyers themselves may be unaware of them was one question.66 Such criticism has waned as mediation has matured into a conventional method of resolving disputes, and a mediation industry has developed in the metropolitan areas of the country. Lawyers themselves can be mediators (although they may not act as lawyers in the case if they are), and nonlawyers can be trained in the complexity of the law so as to assist spouses properly.67 (See the article by Kelly in this journal issue for further discussion of mediation.)

Some states have built into their divorce system procedural stoplights in order to attempt to resolve disputes along the way toward an actual trial. For example, in Massachusetts some probate courts have established pretrial conferences which have the effect of trying to reach consensus on divorce matters. These pretrial conferences, led by the judge who will hear the case with lawyers and their clients present, are not meant to mediate the dispute, but are designed to give the judge a fair assessment of where the parties are in their negotiation. The judge can then attempt to have the lawyers reach an agreement on all or certain issues, thus minimizing the length of a trial.