Skip to content

Domestic Violence and Collaborative Law

July 11, 2012

image Clare Bloomfield/ freedigitalphotos.net

By James Hallett

I write this brief article to submit the thesis that domestic violence and collaborative law are an appropriate combination in many, and perhaps most, cases.  This is not a scholarly legal article, filled with case citations and legal theory, nor is it a scholarly psychology article, since I have no expertise in psychology.  Nor has this article been reviewed, much less approved, by any collaborative or domestic violence support group.  It’s just my take.  But I come to this article after nearly 40 years of handling criminal and family law cases (I am Board certified in both specialties) and accordingly bring some practical understanding of how these things work.  (I write this article assuming Dad is the perpetrator and Mom is the victim, but of course the reverse can be (not often) true, and plenty of same-sex couples suffer through the same situations.)

You could divide family law cases into two general process categories: litigation and mediation.  All litigators settle most of their cases eventually (and so, since it can occasionally be an effective marketing gambit, call themselves mediators, which they are not), and many mediations devolve into litigation.  But the approaches of a true litigator and a true mediator are nonetheless fundamentally different.  The mediator seeks an interest-based negotiation, and the litigator seeks a position-based negotiation.

The difference is significant for a family.  The litigator wants to get everything possible for the client, often (but not always) no matter who else gets hurt.  The mediator wants the family as a whole to suffer the least possible damage.  There’s a fundamental philosophical divide between these two camps.  And the litigators are in the majority, for whatever reason.  (Perhaps it is a mere coincidence that litigation produces higher fees than mediation, but I doubt it.)

So enter the subject of domestic violence.  A system that once ignored this private and often unprovable crime has now been turned on its head.  If Dad punches Mom in front of the kids, Mom now potentially gets a free lawyer in the criminal court (the public prosecutor), the children’s court (the county counsel), the child support court (child support services), and maybe even the family court (any number of domestic violence project pro bono lawyers).  If Mom chooses to go all the way with this considerable arsenal of legal power, Dad either shells out tens of thousands of dollars on lawyers or Dad loses his kids, perhaps irretrievably.  At the very least Dad is forced to fight back rather than admit and seek help.  (I recognize that the public has an interest in the prosecution of crimes.  The role of the criminal justice system in domestic violence cases is a very large subject which I don’t attempt to address here, except to say that many (not all) prosecutors welcome family law assistance.)

If you believe that every domestic violence case is the same, that every perpetrator is a continuing danger, and that destroying Dad’s relationship with his children is the right remedy, then the litigation approach is the one for you.

I submit that the breakdown in thinking about these things, however, is grounded in the litigation process—in the adversarial system we Americans hold so dear (unlike almost any country in the world).  If the only goal is to slam Dad, in order to minimize his child time, to maximize child support, spousal support and attorney fees, to hold off immigration problems, to stay on welfare, to get everything Mom wants or needs, then the litigation process is the way to go.  But if the goal is to address Dad’s problem, including his criminal behavior, to address Mom’s issues such as trauma and perhaps enabling, and to try to preserve the family, in whatever altered form, then the mediation process is the way to go.

As with so many criminal cases, there is often, in domestic violence matters, a disconnect between the problem and the solution.  No sensible person favors domestic violence.  The solution to every crime, however, is not always only punishment.  Rehabilitation, reconciliation, and restorative justice have their places.  Differentiating between chronic and situational domestic violence is appropriate.

The relatively recent development of collaborative law gives Mom the opportunity to engage in a mediative, family-centered, interest-based process without feeling alone.  Mom has her own advocates—her own lawyer and her own coach (mental health professional).  The basic concept of collaborative law is that Mom and Dad each has a lawyer, but the lawyers are limited to seeking solutions through the parties themselves rather than through the courts.  The lawyers are trained to protect Mom’s rights granted by domestic violence legislation, such as those mentioned earlier—support, immigration protection, stipulated orders which protect the children and her—but all the orders arise out of voluntary agreements reached through appropriate negotiations.  The lawyers act as persuaders rather than screamers.

Collaborative training gets more sophisticated all the time.  Screening mechanisms for domestic violence are now increasingly common among lawyers advising their clients on the collaborative option.  The Uniform Collaborative Law Rules/Act (UCLR/A) now being submitted to state legislatures makes numerous special provisions for domestic violence cases.  The collaborative law process, by incorporating mental health professionals into the negotiation from beginning to end, will in most cases provide Mom better protection than a litigation process run by lawyers.

To repeat, what we owe Mom and Dad, and especially their children, is to separate the problem from the solution.  The solution to the crime of domestic violence is first to find the right process, and I submit that litigation, in all its forms, is not always, or even often, the right solution.  The right process is the process that does the least damage to an already damaged family, by enabling both safety and transparency on the part of both victims and perpetrators.  In any individual case, I always first ask:  Are my client, and this family, better off with collaboration?  It’s a question lawyers don’t ask themselves nearly often enough.

James Hallett  is a Certified Family Law Specialist, a Certified Criminal Law Specialist and a member of A Better Divorce.  He has over 35 years of litigation in both criminal and family courts have convinced him that families are far better served by collaboration. He continues to do some litigation, believing (at least for now) that litigation skills and experience can enhance, rather than detract from, his collaborative practice. Please visit his website to learn more about his  professional, educational and personal background.

Advertisements
No comments yet

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: