Divorce can be messy
Most other legal proceedings just don’t have the same personal stakes. Sure, a bankruptcy or foreclosure can be stressful, but divorce tends to take the cake emotionally – especially when children are involved. But does it have to be this way?
Part of the reason that emotions tend to run so high in divorce cases is because of the adversarial environment in court.
What is an adversarial justice system?
In the United States, we use what is known as an adversarial justice system. The idea behind an adversarial justice system is that when you set up two opposing parties with equal access to all appropriate evidence, the ensuing battle between them will result in the truth. Lord Patrick Devlin, a prominent British judge of the 20th century, said of the adversarial system that, “two prejudiced searchers starting from opposite ends of the field will between them be less likely to miss anything than the impartial searcher starting at the middle.”
The adversarial system is a cornerstone of American law, and is a way of ensuring fairness in legal proceedings. However, it is often not the most effective way to resolve family disputes. Family law, and divorce in particular, tends to be heavily wrapped up in emotion. When all of this emotion gets put into an adversarial environment, it often destroys relationships and creates emotional damage that lasts for years. What’s more, litigation tends to be a slow, expensive process.
Benefits of effective conflict management in outcomes for children
Many people believe that children who come from two parent households have better outcomes in life – higher levels of education, higher income, and longer life expectancies. The research; however, does not bear out this assumption. In fact, the far more influential factor on positive outcomes for children is how much conflict there was in their upbringing.
Check back soon for Let’s take this outside – resolving disputes out of court through collaborative divorce and divorce mediation, part 2