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Archive for July, 2014

In Lieu of Court and Hardball Litigators

Ah the truth the right people seem not to read!

Gary Direnfeld, MSW, RSW

If you are separating or divorcing, there are good reasons you don’t want to go to court and why you want to avoid hardball, winner take all litigators.

The reason to stay away from court is to avoid the win/lose mentally of settling a case. The reason you want to stay away from the win/lose outcome is because in the end, very often both parties subject to the litigation wind up losing. The question is, how can that be?

It goes like this.

When you go to court and put your life into the hands of a third party who makes decisions over your life, you can rest assured that the decision, good or bad, will not be as well crafted as you may craft yourself because that person will never have all the intimate details of your life.

The other and perhaps the more important reason why so many…

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Truth or Troll? (OrBoth?)

I figured out two decades ago that while a court battle is not about truth. I even wrote a column called “It Ain’t About The Truth” where I opined on various court cases, including the OJ trial, and the (in)famous McDonald’s coffee case.

But also decades ago I figured out that divorce was not about “what happened”? It is all about emotions and people and relationships. I realized battles were bad for emotions and people and relationships. I didn’t need to figure out they were bad for kids—that I knew from losing my father due to the way my mother acted out her disappointment in my father.

He didn’t cheat on her—he didn’t drink. He didn’t say mean things. As far as I could see, he didn’t do anything wrong. He just did not, could not, fill up her emptiness.

No one else got divorced in those days. I just knew that my mother had problems with men. She dated married ones a lot, and she wasn’t real good at friendships with women either.

I didn’t see my father much after the divorce was finally over. Or in the YEARS between the day he left and the day he remarried in the 60s. (Then, I got him back in 1985. He died in 1990. I’ve learned more abut him from my baby half sister then I ever led when he was alive. But that’s a good thing.)

So seeing the mess that came from the clash of courts and families was not rocket science to me. In the early days (California had been no fault for decades in 1983) many lawyers seemed to feel the same way, so we settled every case. Even though I was pretty new, I was always good at negotiating and settling cases (remember that first case I wrote about?) so I did well. REALLY well.

But right about the time I came into law civility was on the wane, and by the time my consulting career came to a crashing halt, I could see there was a real need for divorce practice to change– so I set abut changing it. In the mid 90s I started my mediation practice. In the 2000s I had started a collaborative group in Orange County. I kept doing good work for couples who knew that court was bad …until the economic collapse of 2008.

But despite all slow but steady change in divorce practice, it just “wasn’t done” to say that court was flat out bad for families. I mean, I said it in essays on Divorcenet, but not to other lawyers or even to the public. From the first day I placed my bio on Divorcenet I had calls—many of the public seemed to know the courts were not the place they wanted to be. But when I said this to a Family Court judge in legal setting, her face went frozen in shock. When I tried to tell other lawyers that not everyone wanted to fight they scoffed—or worse.

But now this fact is being stated and HEARD—thanks in part to Mark Baer, with whom I had become friends, thanks to social networking. (and with whom I am now not friends—thanks also to social networking.) I am even now—-seeing attorneys speak up on Avvo—and have been told I started it. (!!)

So I find it disheartening that so many people are hearing him and thanking him… but all attorneys. Not the public. The he public still lives in wishful thinking land.

I also find it disheartening that so many anonymous “askers’” on Avvo call me a troll for saying the same thing. I also find it disheartening that when we got into a nasty misunderstanding, Mark opined—ON SOCIAL NETWORKING—that I was all wrong and he was all right. (This is never the case —and we both know it.)

I find it disheartening that no matter what different ways I try to explain things, I often cannot be heard by people who 1) ask for my help and 2) are so invested in the way they see their problem that they find any suggestion that there is any other way to approach to be, or feel like, an attack on their entire being.

I find it disheartening that one of my stubbornnesses is I keep trying—and almost never get paid.

So I guess we humans are all pretty stubborn. Study after study has shown that people think OTHERS are off course but they are not….others are wrong but they are not… still. Decade after decade.

What seems obvious to me—that in any dispute BOTH sides think they are right—and in a certain sense they both ARE right—seems to be one of those things where I am in a minority.

Is this because I am an “HSP”? (A real anomaly of 20% of humans and decidedly mixed bag… see http://richawriter.hubpages.com/hub/Its-Good-To-Be-Sensitive-25-Wonderful-Aspects-Of-Highly-Sensitive-People)

I don’t know. I DO know… this is a truth. (Two truths). No one starts out out expecting to be Bad and Wrong, and yet someone they married says they are. Judges seem to agree half the time. (All the time?) And…courts suck for families. 99.9% of the time.