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Around the Table

Levitt Family Law & Mediation’s Blog

The Reality of the “Adversarial Mindset” in Divorce: It’s NOT like on TV!

by | Jun 3, 2022 | Divorce

When you think of the law in television or movies, what comes to mind? We think of courtroom “battles” which follow conflicted relationships or behaviors. While some of those courtroom “battles” on TV or in the movies can be humorous (think My Cousin Vinny) or address important social issues (think Law and Order), they all show the courtroom as the place for resolution of conflict. Why? Because TV or movies about settlement of legal disputes out of court don’t “sell” to advertisers or get large audiences or ratings.

Granted, movie and TV are for entertainment, and real life is not always so entertaining. Many real-life cases begin and end with negotiations out of court, yet it is clear the concept of out of court resolution and its use by parties in conflict resolution is underrepresented in our public media and consciousness. Clients and lawyers frequently still think of the courthouse as the “go to” place to address divorce and other family law conflicts.

The “Adversarial Mindset”

I recently attended a conference sponsored by the Massachusetts Chapter of the Association of Family Courts and Conciliation (MA-AFCC), which was entitled “Doing Harm by Doing Good: The unintended consequences of well-intentioned professional practice in family law cases.” The keynote speaker at the conference was Dr. Dan Simon, Professor of Psychology and Law at USC Gould School of Law and Department of Psychology.

Dr. Simon provided insight into how the adversarial process that is prevalent in litigation, and the way clients and professionals participate in that process, can result in an “Adversarial Mindset” as he calls it. Dr. Simon posited that this “Adversarial Mindset” fosters more adversarial, competitive and conflictual behaviors. It also tends to confirm biases, cause rationalization of one’s “position” even against the face of the evidence and create an environment not more but less conducive to settlement. The solution? Dr. Simon pointed to both intra and interpersonal strategies for consideration, including reframing, acknowledging perspectives and trust building. What are these the hallmarks of? Yes! Dispute Resolution!

Making a Shift

In a Collaborative Law case I had, one of the clients shared with everyone that she felt respect from everyone at the table, including the lawyers who were advocating but not being adversarial. As a result, she felt more trust, less overwhelmed and disempowered and also found it easier to find her voice and participate in negotiations. The use of an out of court process such as a Collaborative Law process, where the focus is moving away from the “Adversarial Mindset,” created an environment more conducive to settlement.

How can we shift from the “Adversarial Mindset” so that families know they have options other than litigation, and consider out of court dispute resolution in divorce and other family law cases? Lawyers and clients can begin by being aware of the “Adversarial Mindset” and its potential impact on negotiations and outcome and explore other options for settlement such that litigation isn’t automatically the “go to”. For example, instead of just “filing for divorce,” why not have your attorney send a letter to the other party inviting them to exchange information and meet out of court to discuss and negotiate a reasonable outcome for everyone? Or to participate in Collaborative Law or mediation?

Recognize Your Options

Litigation isn’t “bad” – the courthouse welcomes those who need or seek justice or equity that cannot be obtained otherwise, and court has an important role in our society. However, families have choices, and those choices impact people and outcome in real ways. Most people prefer a process that is conducive to productive settlement negotiations and a reasoned and equitable outcome that sufficiently meets their goals, so that they can resolve their case and move forward.

If you are thinking about getting divorced, think about HOW to get divorced – understand your choices about litigation, mediation or Collaborative Law, and the pros and cons of each for you and your family. Divorce is about real-life people with real-life problems, who need real-life solutions, not depictions of unrealistic TV or movie outcomes devoid from reality. Be sure to consult professionals and do your own research to educate yourself and be more aware of your options. The courthouse “battle” does not always have to be the “go to” and first option; it is just one of several options for you to evaluate that should include out of court dispute resolution processes as Mediation and Collaborative Law. Think about it.

If you want more information on how mediation and Collaborative Law can help you with your family law matter, contact us. We’re here to help.