ADR finds a home in family law

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Fundamental change lays groundwork for pro se litigants

Erika Strebel
[email protected]

Lauren Kirkwood
Dolan Media Newswires

For some law students who plan to build a family law practice after passing the bar exam, learning to become a skilled litigator who zealously advocates for clients in custody battles and contested divorces is just the beginning.

There’s been a growing emphasis in family law on alternatives to litigation, such as mediation and other forms of dispute resolution that occur outside of the courtroom, and legal educators have begun to stress the value of gaining firsthand experience in these methods of case resolution.

Jane Murphy, co-director of the University of Baltimore School of Law’s Mediation Clinic for Families, and Jana Singer, a family law professor at the University of Maryland Francis King Carey School of Law, recently teamed up to write and research a book, “Divorced from Reality: Rethinking Family Dispute Resolution,” that explores how the expensive, litigation-heavy family law system is stacked against low-income families.

“One of the themes of the book is moving family dispute resolution outside the courts,” Murphy said. “There seems to be a growing consensus that making the courts the first stop for the resolution of family conflicts isn’t in the best interests of families.”

Collaboration

About a year ago, the University of Baltimore’s meditation clinic took on its first collaborative law case, Murphy said. In this form of dispute resolution, both parties are represented by an attorney yet have agreed not to litigate. Instead, they work to negotiate a settlement out of court.

“These cases require you to look at both your client and the other party very differently from the way you would in an adversarial system, and that’s the only thing the students have been exposed to in their first couple years of law school,” Murphy said.

Yet another difficulty comes from scarce resources that come with representing a low-income client, Murphy said.

“In this case, the husband was an hourly worker and the wife had to take time off of work, and transportation was a challenge because the other attorney was not in the city,” she said. “It requires a lot of personal and financial resources to go through this process that some of our clients really have to push to achieve. But in the end, I think they end up in a much better place.”

Pro se cases on rise

In Wisconsin, lawyers meanwhile suspect that an aversion to contentious legal battles is behind recent increases in the number of litigants who are choosing to pursue their cases without the aid of a lawyer. Susan Hansen, a partner at the Milwaukee firm Hansen & Hildebrand, said the greater number of pro se litigants is the result of a fundamental change in family law.

Clients, for the most part, no longer want to go the adversarial route in divorces and other legal disputes. And lawyers, for whatever reason, are not viewed as a means of avoiding conflict.

“Too often, the perspective is that you need a lawyer as a weapon, a legal weapon to protect yourself or have an adversarial dispute to get the most you can form the legal proceeding,” Hansen said. “I think that some of that is now perhaps an old-fashioned view.”

The general public, Hansen said, often casts family law attorneys into the role of being formidable courtroom adversaries and fails to see that they can also be problem-solvers who clear up legal disputes using mediation or similar means.

Catering for a different crowd

Elise Ruoho, a partner in Cullen Pine Weston & Bach’s family law practice, said much good would come from merely ensuring that the public is better aware of its legal options.

Toward that end, Ruoho has been working with the State Bar’s family law practice section to develop a brochure containing useful information about the legal system and the choices that clients often must make. Ruoho said that she and her colleagues are trying to use their firm’s website and marketing endeavors to place an emphasis on education.

“The goals of the section and section board are to improve relations with the community through our clients,” she said.

That involves getting information about collaborative divorce, mediation and arbitration to the public. It also means convincing potential clients that divorces, contrary to what is often portrayed on television, aren’t always rife with conflict.

Hansen, meanwhile, has been working with others at her firm on a new tack. Namely, they have established what was initially called the Milwaukee Family Mediation Center and then quickly became the Family Mediation Center.

The center’s priority is education, Hansen said. Couples who go there can pay $250 for a joint-education session, during which a neutral lawyer will lay out all their options.

“We’d like to give people a place to go that isn’t a law firm but that is an education resource …” she said, “and then if they choose mediation they have the skilled and trained individuals who can help them navigate the process.”