Back in 2020 I shifted my divorce practice to full time mediation and two years ago I made the final Court appearance in my last remaining contested case. As a mediator I do not represent either side so, while I am regularly filing paperwork with the Court to commence and resolve cases, the paperwork is filed on behalf of the couple and I am not an acting attorney on the case. I very recently filed a case that had an administrative issue come up related to the filing that required me to prepare and file an ex-parte request to have the Judge resolve the issue. I prepared paperwork that laid everything out for the Court but the couple was required to make the appearance since I was not their “attorney.” To make sure everything went as expected I checked into the hearing held on Microsoft Teams to observe and to provide further explanation if needed. In this week’s blog I share a little bit about what I saw, and some insights drawn from what my life has been like having eliminated Court appearances from my family law practice.
The Hearing. All told I spent about 30 minutes observing as the Judge worked his way through the other ex-parte filings lined up before the one I was involved with. Once the Judge got to the papers I had filed, he told the couple he had read the paperwork and was granting the administrative fix we had requested. The three of us signed off but what I saw before signing off gave me pause and reminded me why I had made the shift to mediation and why the work is so important.
For those of you that are not familiar with ex-parte hearings, they are designed to address time sensitive, emergency issues that come up in family law cases. The hearings are scheduled with very short notice and the Court has a small window of time to address them before jumping into their regularly scheduled calendar of cases. Time is of the essence. The Court must quickly get to the bottom of the issue and make these important decisions which are often highly contentious.
On this particular morning there were three attorneys on the case. The Judge mentioned that he had received about an inch worth of pleadings and that the finite amount of time he had available did not allow for an in-depth review of what had been filed. He took the approach of asking each side for a concise explanation of the issue that needed resolution. Within the first few minutes I heard the word “liar” more than once, the attorneys cut each other off and tried to speak over each other to the point where the Judge had to keep reminding them that he could not get to the bottom of things with everyone speaking at once. One of the attorneys became extremely angry and raised their voice while trying to make their point. The other attorneys asked the Judge to admonish the other attorney not to use such a tone in front of the parties. The hearing lasted about 20 minutes with the Judge trying his best to maintain some semblance of order and really trying to figure out what was the right thing to do.
What do you want me to do? After the back and forth the Judge turned to the attorney who had initiated the appearance and asked “What do you want me to do?” The attorney did not have an answer and was looking to the Court to have one. The Judge’s patience ran out and he let the attorneys know that he was going to need to trail the matter so that he could timely get to all the other waiting cases. The Judge then moved to the case I was involved with and sorted it out so I signed out and never saw how the prior case was finally resolved by the Court.
Why share this experience? So why do I bring this up? I am not seeking to criticize the Court or my fellow attorneys. Judges do the best they can with what they have to work with. There are lots of good attorneys out there that practice with civility, are well organized, propose practical solutions and seek to work with the other side to reasonably resolve cases. Over my career I have sat and watched many fabulously advocated cases in Court and have worked with many attorneys who are trying to work toward solutions. On the other hand, I have watched many highly contentious hearings where the attorneys were constantly attacking each other, talking over and interrupting each other, and arguing for the sake of argument rather than focusing on practical solutions. The nature of litigation, unfortunately, is that there are two sides of the case trying to get the most for themselves and give the least to the other side.
Clearly there is a better way. Why does our default process of divorce involve handing our problems over to a Judge to sort them out? Why wouldn’t we begin with seeking to sort them out ourselves, sitting down at the same table, assuring we are well informed, having all the documents and other information we need, and then exploring a reasonable resolution? The mediating couple that I had prepared the ex-parte paperwork for sat witness to the same contentious court exchange that I had. We had already mediated their case and we were just trying to streamline the processing of their settlement paperwork. I am sure they were surprised by the level of contentiousness and animosity. Emotions certainly show themselves in mediation, but our focus on working together for a common solution sets a very different tone.
What I have learned from my time away. There is a part of me that misses getting prepared to go to Court, and being in Court and advocating for my client. A little of me misses the excitement of working to convince the Judge why what I am advocating on behalf of my client is best for the family, and especially the children. I miss seeing the Judges and my fellow attorneys who I have grown to know through having them on the other side of cases.
With that said, I don’t miss the high stakes, the high stress, and the many interactions involving the parties or their attorneys behaving poorly. I mostly felt it was a failing if we attorneys could not get things sorted out short of having to submit the matter to the Judge. I don’t miss the dynamic of each spouse being focused on doing the best for themself. I realized when I stopped litigating and moved to full time mediation that the litigation process naturally adds a much higher level of stress to the lives of all those engaged in it. Whenever I do a Settlement Conference with couples who have been engaged with the Courts I feel a whole different level of stress carried by the parties and their counsel. There is certainly stress with couples who are mediating which is naturally linked to the life change taking place, but it is a much different animal than that which I sense from couples who have been engaged with the Court for a lengthy period of time.
Most of all, I can feel the lightness on my own shoulders having stepped away from litigating. Something there was when I was doing the Court work that I always seemed to carry on my shoulders. It goes with the high stakes, with the anger and resentment which is regularly present in litigation, and it goes with working with families that are mired for long periods of time in the space between separation and divorce. As those things have fallen away with the cases that I now handle, my clients are not so heavily burdened and I too am happy and much less stressed in my work.
I can still hear that Judge pleadingly asking what it was the attorneys wanted him to do with the mess they had presented him with. Us professionals working with divorcing families should be fashioning the answers to all of the questions. Divorcing couples sit in the best position to sort out what makes the most sense for their situation. Let’s start with that and do what we can to support placing our clients in a collaborative space to make their own decisions. If that doesn’t work, and somebody is not willing to be reasonable, then we can consider enlisting the Court to solve our problem for us. The more time I spend resolving divorce issues out of Court, it is all the more puzzling to look in and see how contentiously these same problems are getting addressed through the Courts.