Icebergs & Family Law
What does human nature have to do with icebergs, and for that matter, family law? Although most of us deal with human nature on a daily basis, we rarely seize the moment to think deeply on the subject.
Jean-Baptiste Molière was a 17th century French playwright and actor. He is considered to be one of the greatest masters of comedy in Western literature. In the Misanthrope, one of his most famous short plays, we read these timeless words: “Let us torment ourselves a little less about the vices of our age and be a little more lenient to human nature.”
The law (I am told) is about “reason,” not “emotion.” After all, if we really wanted to learn about emotion, we would have spent our days studying psychology and not the law. Instead, law school taught us how to “think like a lawyer.” Looking back at my years in law school and over my 24+ years in the business of law, I have come to wonder if I ever did get it. Truth is… I feel very much like an outcast amongst most of my colleagues, most times feeling quite vulnerable and distressed over the practice of law.
We can all vividly recall images of that deadly iceberg encountered by the Titanic. Icebergs, as we know, have the bulk of their structure under the water – 90%, I am told. That invisible part of the iceberg, under water, is dark, unknown, secret and hidden. This seems to be an excellent metaphor for the relationship of the law, to reason and emotion. As lawyers and judges, we focus on what is visible – above the water line: the conscious, logical, rational and factual. Yet, we give little thought to under the surface (remember 90%) where lies our emotions; hidden, powerful, mysterious structures we ignore. I submit that we chose to ignore this aspect of human nature at our peril.
While the Canadian Bar Association and the Law Society of Upper Canada constantly initiate public relations campaigns to improve the public perception of lawyers, the legal system unintentionally conspires to perpetrate the behaviours that stamp a different perception indelibly in the minds of ordinary people. In ignoring human nature, the system (that’s judges and lawyers – you and I) continues to attempt to persuade the public that we are good people, while denying them the experience of connection with real human beings. We are out of touch with human nature and as a result, we can hardly appreciate ever being lenient towards it.
Our clients may believe they only need our intellect and our legal knowledge. However, I truly believe that what they actually want, in fact deserve, to have the feeling that we are really present to them; that we are “connecting” with them, interested, not judging and that they are more than just another case.
Some time ago I argued a very difficult and emotionally trying motion. (I think you know what I mean.) It never ceases to amaze me how complicated life can be. I’ve come to fear (and I mean “fear”) bringing cases before the court, as I feel that there is increasing uncertainty and unpredictability in the outcome.
It’s quite understandable (and commendable) why more and more people are turning to Alternate Dispute Resolution, for at least one has some control over his/her destiny. When you go to court with a dispute… you just never know the outcome. In the end, there are rarely any winners.
Anyhow, back to that case. At the conclusion, I “lost” and I confess that I felt quite dejected, even though I knew I gave I did my best and gave it my best shot. To make matters worse, given the facts, I did not think it was an appropriate case to award costs. The judge ordered substantial costs which I knew would come directly out of my client’s children’s mouths. That evening I shared the event with my spouse, who immediately said: “Marty, what the judge did was punitive and heartless.”
I thought about what my wife said and about that court appearance and realized that for the presiding judge, the case had everything to do with “reason.” Nothing to do with “emotion.” I can see now that the judge was only looking above the water line and failed to give little thought that 90% below the line.
Law seems to offer an either-or choice: You can be objective (and be a good lawyer) or you can be emotional. Though I know that many of you will disagree, I still believe that we can have both. When we acknowledge the value of human nature, coupled with all its emotion, and when we struggle to learn to recognize and appreciate our own underlying feelings and those of others, this, in my view is the making of a good judge and a good lawyer.
As we integrate our thoughts and feelings, there will be greater personal and professional satisfaction, for we are no longer making the “law” a matter of cold, barren reason, but we’ve connected with real people who have real problems in our mutual humanity.
Can we learn from these words of Jean-Baptiste Molière? Are we so caught in our roles as “lawyers,” “judges” and “crown attorneys” that we’ve lost a sense of mercy – of understanding and compassion in our work? Is there a place where we can adjust and look below the water line and be a little more tolerant in our dealings with others? These are questions, I believe that we need to face and ask ourselves, for if we don’t, the system in which we work will be thrown to the vices of our age.
Marty Klein is senior counsel of Klein Law in Mississauga, practicing in the area of Family Law and through We Mediate, a new Alternate Dispute Resolution service.
The Impact of Family Mediation and Resource Centre’s (FMRC’s)
Family Law Information Sessions (“FLIS”)
YOU HAVE THE RIGHT TO KNOW YOUR OPTIONS EARLY
The Ministry of the Attorney General of Ontario has established Mandatory Information Programs (MIPs) throughout family court locations across Ontario, providing attendees with general information about separation/divorce and the legal process. These sessions must be attended within 45 days from the start of a case.
What makes FMRC’S FLIS so different? The MIP sessions are instituted after a court application is instituted. FLIS recognises that court may not be the only route to follow. We recognize that without knowledge – without first having legal information, on the effects of separation and divorce on adults and children; alternatives to litigation; family law issues; the Family Court system and local resources and programs, people are committed to a system that they never have wanted in the first place. We believe it is important that families be provided information beforehand, at an early, neutral stage of the separation process and before families launch out in a very unfriendly and most often destructive court case.
Information is crucial for community members to become empowered, in order to move forward in separation. Divorce/separation does not only affect the parties directly involved, but their child(ren) and extended family members. Being aware of information about separation/divorce and the legal family process is necessary and relevant public education which should be easily accessible to all members of a community, including those who are not going through divorce.
FLIS sessions aim at enhancing knowledge, decreasing conflict and instilling respect by allowing people a right of choice:
a. They are offered right within the community
FLIS sessions take place in familiar settings, such as libraries and community centres, as opposed to the informality of a courthouse. This affords an opportunity for community members to learn about alternate ways of proceeding, such as by family dispute resolution processes. Court may not be the only solution! There is a new wave of people settling family law matters through negotiation, Mediation, Mediation-Arbitration and the Collaborative Process. Sadly, once in the court system, options become very limited.
b. It is offered prior to starting a court case.
Going to court is no panacea! It can only increase conflict. The adversarial system drives a sharper wedge between people; those who are already somewhat traumatized by a breakdown in an intimate relation.
Access to knowledge prior to entering the court system will enhance parties’ ability to link with and effectively use appropriate public resources while preventing “revolving door” effect.
c. It’s voluntary versus mandatory.
Whereas mandatory format focuses on attendance, voluntariness allows parties to focus on the information at hand. As result, parties may be less tense, less stressed and less resistant.
Having the choice of researching suitable options versus being ordered into attendance, may be empowering and help in preserving a person’s sense of dignity. It may play a crucial role in increasing a person’s sense of self-direction and responsibility for the situation. As well, it will save time and money for everyone involved while establishing trust and respect for the judicial system. Finally, parties may be more likely to reach a child-focused and long-lasting agreement, which can only prevent long-term damage.
“Participation in collaborative proceedings such as mediation tends to not only decrease the intensity of conflict below the level brought to them by separating parties but also to improve the quality of post-separation relationships between them…”(Ellis, 2014)
“…(“going to court”) increases the intensity of conflict beyond the baseline level of intensity that separating/divorcing parties bring with them to family court.” (Ellis, 2014)
“…adversarial family law system “appeared to encourage couples to become adversaries to a greater degree than they already are….to aggravate relations with the spouse…and to upset and humiliate people” (pp.214-215).” (Ellis, 2014)
“…most couples who bring their disputes to family court do not need to and do not enjoy, or ultimately benefit from, the experience. I would go further and suggest that in many cases, the parties’ ability to communicate and co-operate with each other as co-parents became worse, not better, as a result of family court litigation.” (Brownstone, 2009)
“AFTER FOURTEEN YEARS OF PRESIDING IN FAMILY COURT, ONE QUESTION HAS NEVER CEASED TO AMAZE ME: how can two parents who love their child allow a total stranger to make crucial decisions about their child’s living arrangements, health, education, extracurricular activities, vacation time and degree of contact with each parent? This question becomes more mind-boggling when one considers that the stranger making decisions is a judge, whose formal training is in the law, not in the family relations, child development, or psychology.” (Brownstone, 2009)