When Hiring a Lawyer or Mediator, Buyer Beware
Who is responsible for educating the public about dispute resolution options?
Posted May 4, 2017
Over the years, I have written a great deal about how our personal biases, beliefs, assumptions, expectations and values shape our worldviews and decision-making, among other things.
In his article titled "Resolving a Dispute is like Traveling", Michael A. Zeytoonian said the following:
"Picking the wrong process and the wrong kind of lawyer is like hiring a surgeon when what you need is a few physical therapy sessions."
I could not agree more, and make the exact same point in "The Personality and Philosophy of Attorneys Impact the Results".
What I have discovered over the years is that, generally speaking, litigators believe that litigation is the best approach for addressing legal disputes, mediators believe that mediation is the best approach, and collaborative law practitioners believe that collaborative law is the best approach. Moreover, there are different types of mediation and different mediators favor different mediation models and styles.
I'm afraid that these preferences are based upon the personal biases, beliefs, assumptions, expectations and values of any given professional. Furthermore, not all beliefs are fact based, regardless of how sincerely held such beliefs may be.
While it's true that all human beings are biased, these particular biases lead to a great many problems because consumers lack the knowledge and understanding of the different dispute resolution methods available, let alone the different styles within any given method.
Consider the following excerpt from an article, "All in the Family (of Licensees): Pragmatic Approaches to Implementing Paralegal Integration into Family Law":
One of the unique challenges of paralegal regulation is that, unlike lawyers, paralegals are almost exclusively in what are referred to as 'public facing' areas of law. Most of their clients do not have much business or legal sophistication or an understanding of the legal system. In addition to concerns around paralegal education and training, the Morris Report also notes that a complaints-based disciplinary system shifts the responsibility of protection of the public to members of the public themselves. Unfortunately the public is often not properly positioned to do this as they lack a proper understanding of what is to be expected when securing legal assistance. Family proceedings in Ontario are already unnecessarily complicated, lengthy, and expensive, due to unprofessional conduct by lawyers in the form of incivility."
Along those same lines, the following was a comment made on my Psychology Today article, "Injustice at the Hands of Judges and Justices":
If you were to ask anyone who knows me they would not hesitate to confirm that I have always placed the 'responsibility' of the authority overreach into the hands of the parents (litigants, as you prefer). Ignorance is no defense. Some may agree that by placing their ignorance into the trustworthy hands of an attorney absolves parents of their lack of knowledge....How is a parent to know which is the right attorney?...
I am not usually one to play the game of 'answering a question with a question' but as you said 'Picking the wrong process and the wrong kind of lawyer is like hiring a surgeon when what you need is a few physical therapy sessions.' So to answer your question as to whether we should blame the attorney, my very condensed answer would be yes. My argument is simple: if attorneys—rather ALL sworn officers—were to abide by their oaths, canons, duties, and ethical obligations, there wouldn't be any 'wrong processes' or 'wrong kind of lawyers' to choose from and the process would be lawfully streamlined....
The parents/litigants don't simply choose an attorney, they entrust their life, livery, and happiness into these 'legal representatives.'"
As I said in my response, I wish I could disagree, but I can't.
Vincent Cardi's article, "The Law As Violence: Essay: Litigation As Violence", published in the Wake Forest Law Review in 2014, ended as follows:
"Making lawyers and the public more aware of the serious psychological harm to those involved in litigation is a moral obligation of the profession and would likely lessen the harms over time. As attorneys, we each have a moral obligation to know who will be hurt by our actions and a professional obligation to tell our clients of the harm that will likely accompany litigation."
One of many other points Cardi made in his article was set forth as follows:
"Professor Daniel W. Shuman points out studies showing that delays in the litigation process are a particular cause of psychological harm to litigants."
Irrespective, one of many other things I long ago realized is that people interpret our actions and words in accordance with their personal biases, beliefs, assumptions, expectations and values. As a result, a great many litigators somehow believe that I think that people should never litigate their disputes. However, I have never said any such thing and never would.
Although I no longer litigate and haven't for quite a few years, I acknowledge that litigation is sometimes necessary. However, it should be utilized as a means of last resort and there are different ways of litigating.
You can effectively litigate without unnecessarily escalating conflict. Furthermore, there are things you can do to deescalate conflict, while still litigating. I oppose prematurely jumping into litigation, unnecessarily escalating conflict in litigation and believe that litigators should try and deescalate conflict, to the extent possible. Is that too much to ask?
As an example, when a parent is denied access to their child, they typically consult with and retain a litigator or pursue litigation on their own. A Request for Order Regarding Child Custody and Visitation or other such motion is then filed with the court and served on the other parent.
I have yet to receive correspondence such as I typically send under those circumstances. I composed the following letter today and sent it to the other parent by email and mail:
"Dear Ms. ****:
I have been retained by ####### ####### to represent him with regard to his parental rights and obligations pertaining to @@@@. ####### has advised me that he is @@@@’s father and that he has been denied access to her since approximately &&&&. If there is a question regarding whether or not ####### is @@@@’s father, he is more than happy to take a paternity test. However, assuming that ####### is @@@@’s father, he wants to try and work with you in a cooperative manner in establishing a parenting plan, timeshare schedule, and child support.
###### knows that you want what’s best for @@@@. He is also aware of the research which shows that “in mother-only families, children tend to experience short-and long-term economic and psychological disadvantages; higher absentee rates at school, lower levels of education, and higher dropout rates; and more delinquent activity, including alcohol and drug addiction.”
In addition, ####### is aware of the research which very clearly shows that parental conflict harms children and for children three years old or younger, the parental conflict can actually negatively alter the brain development in a manner that will permanently impact the child. Meanwhile, @@@@ is only %%%% months old.
Furthermore, ####### is aware that the forty studies of “almost a quarter million parents with varying socio-economic, racial, and cultural backgrounds and varying levels of conflict…showed that that the children in shared parenting families had better outcomes than those in sole residence even when there was high conflict or where one of the parents had been ‘forced’ to share…Shared parenting (sometimes referred to as ‘shared care’) refers to those families where the children continue to live with each parent at least 35% and typically closer to 50% of the time...[Moreover, there is] no evidence that regular and frequent overnighting undermines infants’ or toddlers’ wellbeing or weakens their bonds to their mothers.”
Knowing all of this, ####### would like the two of you to be bigger than your problems for @@@@’s sake and to work resolve your differences in a constructive manner through mediation or otherwise.
At present, ####### feels as though he is caught between a rock and a hard place because the statistics reflect that the current situation is not in @@@@’s best interest and that engaging in litigation through the court system will only make things worse by escalating the level of conflict and distrust between the two of you. However, if that is #######’s only option in establishing a parenting plan and time share schedule that is in @@@@’s best interest, he is prepared to move forward in that regard.
Please read my articles titled Parents Should Think Twice Before Engaging in a Custody Battle Over Their Children and Cooperation or Combat? The Choice Is Yours! before opting to pursue litigation or causing ####### to do so in order to establish his parental rights and obligations.
Because of the length of time that has passed since he last saw @@@@, ######## has informed me that unless you both can reach an agreement that is in @@@@’s best interest or agree to commence mediation or some sort of constructive solution-focused approach with regard to such matters within ten (10) days of the date of this letter, he will have no choice but to retain litigation counsel.
Please contact me as soon as possible regarding this matter and how you wish to proceed.
Mark B. Baer, Esq.
If I am against litigation under any circumstances, why would I have left that option open in the conclusion of my letter?
Not surprisingly, people also have different definitions of what it means to be collaborative.
Meanwhile, I have been known to freely share work product that I produce with others, as I have with the letter I composed just today.
My spouse asked me why I do such things. I responded that I do so because my hope is that the information and material will help prevent unnecessary harm to children and families. In fact, doing so is consistent with the values that speak to me the most and without which I would not be who I am.
Last January, I enrolled in one of social science researcher Brene' Brown's online Living Brave courses. One week, among other things, we were instructed to select the one to two values that speak most to us and without which we would not be who we are. The list included 116 different values and we could write down values that were not otherwise included on the list.
The two values I selected were fairness and making a difference. While I realize that fairness is subjective, which is why "fair" is sometimes referred to as a 4-letter word starting with "F"; however, I was referring to my innate sense of fundamental fairness.
In his article Vincent Cardi said the following:
"Because an awareness of the likelihood of psychological suffering could be expected to deter some clients from filing suit, attorneys have a financial incentive not to advise the client of these problems. A court rule requiring attorneys to inform their clients of the serious psychological harms that often accompany litigation might be appropriate."
I don't require such a court rule to share that type of information with my clients and prospective clients. Clearly, my idea of what is and isn't moral and ethical differs significantly from a great many of my colleagues, as well as "the powers that be."
Unfortunately, I must agree with Cardi that such rules are necessary. In the meantime, "buyer beware" is all I can say.