As someone who was a trial lawyer for 35 years, I know there is an undeniable appeal to the courtroom and the intellectual challenge of trial law. You have to be on your toes and ready for any curve ball that comes your way. When you win a big case, it can be exhilarating. When you lose (and we all do) – it’s not so great. Think then, what it can feel like for the client.
With experience comes the knowledge that even the best judges are not infallible and have good days and bad days. Mistakes often happen. Our appellate case law is replete with complex trials where an error by the judge or jury caused the rendition of a completely improper judgment. Even on their best days, our most brilliant judges probably have at best a fifty percent approval rating from the litigants in their courtrooms.
The problem with litigation – especially in family law – is that it can be dehumanizing. It has been compared to armed conflict where the “opposition” is demonized. I once had a client tell me he had served in Vietnam and that going through a child custody jury trial felt like he was back on the battlefield again. Many therapist friends have clienteles replete with people who are still stressed and traumatized from the litigation experience. And many of those in therapy are their children.
Collaborative law and mediation are confidential settlement processes conducted in a safe environment intended to minimize conflict. In collaborative law, the lawyers are still charged with zealous representation under the Code of Professional Responsibility, but they do so in a civil and professional atmosphere. In mediation, the mediator does not represent any party and cannot draft documents for them, except for the settlement agreement itself. That is why it is important that parties to a mediation hire lawyers who understand the importance of the settlement process and hire mediators skilled in conflict resolution.