A Conversation between Joe Sorge and Mark Baer Regarding ‘Divorce Corp.’: Part 11 of a Series

This is the eleventh and final part of a series of articles wherein I share a conversation I had with the executive producer and director of “Divorce Corp.” wherein we discussed the 58 reasons why I was unable to endorse the film. Since my last article covered points 46 through 50, I will start this article with my 51st point. In an effort to eliminate any possible confusion, the items in italics are my responses to Mr. Sorge. They are in italics because those responses were never sent to him.

Mark Baer:
“Fifty first, family law increases violence – agreed!”

Joe Sorge:
“Agreed.”

Mark Baer:
“Fifty second, of course lawyers have to establish themes and convey information in a story fashion – people relate to stories and grasp themes – judges are people.”

Joe Sorge:
“Agreed.”

Mark Baer:
“Fifty third, most family law judges had no family law experience (at least in California) and most don’t like it and don’t understand how the emotions play out – a BAD combination.”

Joe Sorge:
“Agreed.”

Mark Baer:
“Fifty fourth, just because someone is a family law judge doesn’t mean they are a good parent. This goes to judicial bias.”

Joe Sorge:
“Agreed.”

Mark Baer:
“Fifty fifth, what came first, the chicken or the egg? I majored in economics/business. There is a concept called supply and demand. If the public wanted a different type of attorney, the supply would exist. If the public wanted mediation, there would be more mediation.”

Joe Sorge:
“The public would love mediation if they could not otherwise win more in court. Take away the financial rewards associated with the adversarial system and mediation would become the norm (as it is in Scandinavia).”

Obviously, there are times when someone “wins” more in court than they might have obtained through mediation. However, it is incorrect to state that “the public would love mediation if they could not otherwise win more in court.” I recently published an article titled “What’s Truth Got to Do With It?” In that article, I address the reality that lawyers and mediators “cannot predict what a trial judge will decide.” Furthermore, the research shows that seasoned lawyers are no better at making such predictions than lawyers with less experience. Moreover, “research also shows that if the marital estate is $4,000,000.00 or less, any financial gains obtained through aggressively litigating the case will generally be less than the attorneys fees and costs incurred in obtaining such gains. While any financial gains obtained through aggressively litigating high-net worth cases (marital estates above $4,000,000.00) may be more than the attorneys fees and costs incurred in obtaining such gains, the parties should also consider the emotional toll and permanent damage it will cause the family. It’s always preferable to use alternative methods such as mediation and collaborative divorce over a long and drawn-out courtroom battle. 

Couples that aggressively litigate their divorce case generally suffer severe emotional wounds which remain with them for a significant amount of time and which often prevent them from allowing closure and moving forward with their lives.” Considering the financial and emotional cost involved in litigation, the damage that it causes to the litigants themselves and the family dynamics going forward, let alone the collateral damage caused to the children, what exactly is a “win” and at what cost does it come?

As I mentioned in Part 10 of this series, the adversarial system does not provide “rewards.” We don’t need to take away something that doesn’t exist in order for mediation to become the norm, as it is in the Scandinavian countries and elsewhere. Instead, we need to actually do what they have done in the Scandinavian counties and elsewhere and change the default process from litigation to mediation. 

It seems to me that Mr. Sorge’s perspective is skewed based upon his perception of how his family law case went down.  If you take Mr. Sorge’s response to my comment with the background of his own family law case, you will see what he means.  It is abundantly clear in Marriage of Sorge that his ex-wife received far more in court than she ever would have in mediation.  However, the reason this occurred is because Mr. Sorge wouldn’t give her dirt unless and until he was forced to do so by the court.  If the family law courts didn’t exist, Mr. Sorge could have just walked away from the negotiation table (if he even bothered attending) and told his ex-wife to go “pound sand” and there would have been nothing she could have done.  The courts and laws are designed to level the playing field and to prevent those in power or with means from mistreating those without power or means.  Mr. Sorge has both power and means and he does not like the fact that the courts and laws level the playing field, at least in theory.

Mark Baer:
“Fifty sixth, I agree that litigation is poorly suited for families.”

Joe Sorge:
“Agreed.”

Mark Baer:
“Fifty seventh, I agree that custody is a fighting word.”

Joe Sorge:
“Agreed.”

Mark Baer:
“Fifty eighth, I agree that our system is barbaric.”

Joe Sorge:
“Agreed.”

Mark Baer:

“I agree that we need major reform. However, I believe that you are spreading false and misleading information and will not endorse this film – quite the contrary.”

Joe Sorge:
“See, we agree on so much. We just want to take the reforms farther and accomplish them faster. I fully respect your positions, and know that they come from a good place. I’d be happy to discuss the points on which we disagree further if you like.”

In fact, Mr. Sorge and I did speak shortly after I had received his responses to my comments. I must admit that Mr. Sorge and I agree on some issues and disagree on others. Nevertheless, he has always been extremely pleasant and polite with me.

Furthermore, I sent him an email on January 13, 2014 which stated in pertinent part as follows:

“I wanted to congratulate you on the incredible response you have been receiving from ‘Divorce Corp.’ As I am sure you know, I have been writing a series of articles based upon our exchange following the comments I made about the film. As you noted, “While we do not agree on all points, we agree on many, and that’s a good start.” I wanted to let you know that I could not be more thrilled with the attention and response your film is receiving. I have been advocating for a complete overhaul of the system (and not just with regard to family law) for quite a while, but my focus has been on family law. Over the years, I believe that I have gotten through to some people and helped to bring about much more attention to mediation and collaborative divorce and the horrors of litigation. To be quite frank, I don’t handle my cases in court, so it wouldn’t really impact me at all if the courts were eliminated from the process. However, for the reasons I have set forth in my ongoing series of articles, I unfortunately believe that court is necessary for a certain percentage of the population….

In any event, I firmly believe that a film such as yours was what was required in order to force necessary changes to a very destructive process.

Thank you! By the way, if you do want to involve me in any panels or discussions, I would love to participate.”

Mr. Sorge responded as follows:

“Hopefully we can reduce litigation by removing the reward for litigating. I keep looking to the Scandinavian model where there is far more discussion and compromise, and far less litigation. While their culture is different, the main reason they do not fight in court is that there is little to ‘win.’ My upcoming book, Divorce Corp, discusses ways in which the U.S could adopt some of the improvements found in the Scandinavian system, while still preserving the option for couples to elect to live a more traditional life style in which support obligations are contractual rather than statutory.

I would be delighted if you wished to participate in a conference we plan to organize on family law reform.”

8 comments

  1. Marly says:

    Thanks so much Mark for posting this series of articles regarding Divorce Corp and your conversation with Mr. Joe Sorge.

    Though I practice mainly in Switzerland and other European countries, and I have not seen Divorce Corp, I appreciated all these posting because hey have helped me understand better some of the views and expectations of my US and Scandivian clients.

    Regards,

  2. You are very welcome, Marly., Thank you for your comment.

  3. Bruce Avery says:

    Mark,

    Thank you for the effort you have put into preparing this response to Mr. Sorge, and thank you for quoting me in it.

    Having now read Marriage of Sorge, I now understand even better his frame of reference. My experience is that no one is more interested in getting the courts out of the family law process than the court system itself. We have court-ordered co-parenting classes to help parents learn about the harm their conflict does to their children. We have court-ordered “mediation” for both custody and property issues to move cases out of the courthouse. This “mediation” is not true mediation, but is more of a settlement conference or neutral evaluation, but the goal is to have the parties make their own decisions.

    In Maryland we have free collaborative law training for lawyers, mental health, and financial professionals sponsored and paid for by the state Administrative Office of the Courts (AOC). The training is free so long as the participant agrees to take a pro bono collaborative case. AOC also funds the Collaborative Project of Maryland which offers pro bono and low bono collaborative services.

    We will always need courts to resolve cases, such as Mr. Sorge’s, where one of the parties has unreasonable expectations and will never listen to any advice that contradicts their positions. All of our judges would agree, it asked, to the idea of moving most family law issues out of the litigation model.

    How we change the default process for family dispute resolution from litigation to interest-based negotiation is the challenge. Forty years ago no one went to family law mediation. Now it is, at least in the Washington, DC, metro area, common for parties to complete mediation before ever filing anything in court. Collaborative practice is much smaller, but growing. I hope it doesn’t take another 40 years, but we are on the way to changing the public’s idea of how a family law dispute is to be resolved.

  4. You are very welcome, Bruce. Thank you for your very thoughtful comment.

  5. Manager of this blog - Martha Chan Manager of this blog - Martha Chan says:

    I am not sure how many people ended up seeing the movie or how it is perceived outside of the professional circle.

  6. I would recommend searching for Divorce Corp. on Twitter. In any event, all in all, the film has received poor reviews and not all that much press.

  7. Cathy Cohen says:

    Mark: Some of your criticisms of Divorce Corp are valid, but others seem gratuitous. In my view, the film is groundbreaking because it connects-the-dots on the corruption and collusion between judges and attorneys in family courts throughout the country, and especially in California. In California, roughly 70 percent of family court litigants are unrepresented. I live in a suburb of Sacramento. Sacramento County is the undisputed poster child of dysfunctional family court systems. Five cases from Sacramento are profiled in the film, with the Ulf Carlsson case being the most egregious example of corruption. Sacramento Family Court News, an online, nonprofit journalism organization has documented that unrepresented litigants are routinely steamrolled by overreaching attorneys and the judges who the attorneys work and socialize with. SFCN has cataloged examples of attorney-judge collusion: http://sacramentocountyfamilycourtnews.blogspot.com/p/temporary-judges.html

    The SFCN home page is at: http://sacramentocountyfamilycourtnews.blogspot.com/
    You should pay the site a visit.

  8. Cathy, thank you and I am very sorry to hear about the issues going on in Sacramento County. However, I did address that issue in Part 5 of my series, which can be found at the following link: http://blogsondivorce.com/uncategorized/a-conversation-between-joe-sorge-and-mark-baer-regarding-divorce-corp-part-5-of-a-series.php.

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