This is the tenth 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 41 through 45, I will start this article with my 46th 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:
“Forty sixth, people abuse the system – say it isn’t so! They do this everywhere. In fact, disabled people no longer get priority at Disneyland because wealthy people were paying them to help them get to the front of the line. This harms those who are disabled. Clearly, this problem is not limited to family law court or courts in general.”

Joe Sorge:
“Agreed. Take away the incentives inadvertently granted to people who abuse the system, and the abuse will be vastly reduced.”

As I keep saying, the flaws are not “incentives inadvertently granted to people who abuse the system.”

The problem is far more complex. First, the default process for resolving family law matters in the United States is litigation. It should be noted that according to Merriam-Webster’s Collegiate® Dictionary, 11th Edition, the definition of “adversary” is “enemy.” In other words, the adversarial process is designed to resolve disputes between enemies. Just because spouses happen to be divorcing does not mean that they are enemies. While they may not like or respect each other and while they may distrust and disagree with each other, that does not necessarily make them enemies. The problem is that if you place people who are not already enemies into a process that is designed for enemies, you create enemies. How many people do you know who have sued each other and have remained friendly? I have been to parties in which problems arose because two people who had been on opposite sides of a lawsuit were seated at the same table at a party. If they are even willing to remain at the party, they invariably insist on being moved to a different table. Is it wise to subject spouses to such a process, especially considering that they frequently have children together? How does this impact the family dynamics from that day forward? Considering that parents are essentially bound together for life because of their children, isn’t there a better way of handling such matters?

I am going to repeat myself once again – mediation and collaborative divorce are processes designed to assist people in reaching agreements by reducing the level of conflict and rebuilding trust. Doesn’t that make more sense when those involved in the dispute will have an ongoing relationship, whether they like it or not? After all, the family still exists after the marriage ends. Therefore, we must do what has been done in the Scandinavian counties and elsewhere, and change the default process from litigation to mediation. Is this going to eliminate the need for some people to litigate their divorces? No.

Richard F. Lazur, Psy.D. wrote an article titled “When Emotions Swell and Threaten Capsize.” Making some minor alterations to something he wrote in that article, I have concluded that the following individuals must see the inside of a courtroom:

“If a client is entrenched in an immutable position, closed off from considering possible alternatives, or calcified in a belief system, no matter how competent the [professionals involved], that person is unwilling to move. These people are recognized by the rigor, brutality, and callousness of their emotional stances. Elements of cruelty, enmity, and/or sadism as present either in their relations or in representations of their interactions. They are a closed channel. Nothing gets in and change is not possible. While litigation is likely to be drawn out, vicious, and expensive, these people are not good candidates for [resolving their matter outside of a courtroom]. They only want their way, with no room for negotiation. These individuals experience a significant insult at the very core of their personality. Offended by the failure of the promise of marriage, their dreams have been smashed. Unable to reconstitute their resources, nothing can ameliorate their dissatisfaction. They want to be right and no matter what the ‘offending’ spouse offers, it is never enough. These are the people who want the judge to side with them and vindicate their experience of loss. They want to win.

For the majority of clients, however, who temporarily are thrown off their game by the tsunami of feelings intrinsic in a divorce, the [professionals involved] are able to lend a hand in their navigation of the emotional currents.”

I have found this to be completely accurate and read this to all of my clients because I don’t want them wasting their time with me, if they, their spouse or both of them fall into that category.

The following quote from Bill Eddy, LCSW, Esq. appeared in the 4th article in this series:

“One or both parties in many (most?) Family Court cases today have a mental health issue that is unrecognized – such as a personality disorder, substance abuse, bipolar disorder, depression – disorders which are often characterized by denial and blaming others. This reflects the growth of these problems in the larger society today. These are not problems unique to Family Court, but Family Courts need to recognize them.”

J. Kim Wright recently shared the following with me:

“A judge told me that he never sees anyone in custody court unless one of them has a personality disorder, addiction or impairment. All others have resolved long before they come to him. (He pointed out that sometimes it is not the client who is impaired, rather the lawyer.)

The presumption ought to be that two parents know what is best for their children. If they are unable to agree and therefore end up abdicating their roles to the Court, the presumption ought to be that they’re in need of serious therapy and that the children probably need more.”

I completely agree with that assessment.

If you pay close attention to what that judge told Ms. Wright, you will notice that “sometimes it is not the client who is impaired, rather the lawyer.” This unfortunate problem can be rectified if people stopped seeking out lawyers who they describe as “sharks,” “pit bulls,” and “very aggressive.” I cannot say it enough – aggressive lawyering is counter-productive. What clients should be looking for in a family law attorney is someone who is “caring and competent.”

In any event, cases involving such individuals are most likely those that will ultimately end up in litigation, and this is true regardless of whether the matter is in a Scandinavian country or anywhere else. However, as Bill Eddy said, “Sadly, Family Courts provide a forum for people with such problems today (in contrast to when I began practicing law), especially because family lawyers, judges and other professionals are not trained in identifying mental health issues, get stuck arguing about them out of ignorance and there are few mental health resources for treating them even if they were properly identified. Family courts were never designed to diagnose and treat mental health issues, and the adversarial process is guaranteed to fail at it. Reforms need to involve more mental health training for professionals and more conflict resolution skills for clients to help them make decisions out of court in non-adversarial settings.”

When such individuals are involved in a family law matter, I am afraid that there is no easy or simple solution to the problem. Most certainly, the answer is not to get rid of family law courts because it is a false assumption that when such individuals are involved that the people will be able to “go their separate ways without judges.”

Mark Baer:
“Forty seventh, I agree that restraining orders are way overused and that there are consequences.

Joe Sorge:
“Agreed.”

Mark Baer:
“Forty eighth, I have a problem with a 51% burden of proof standard – too low? YES! However, although the “clear and convincing’ standard is technically a higher burden of proof, “the distinction is more perception than reality. The judge merely says that they applied the higher standard, but did nothing differently than apply the preponderance of the evidence standard and state otherwise.” Of course, it is not unheard of for the innocent people to get convicted and guilty people to be found not guilty even when we apply the “beyond a reasonable doubt standard.” As you can see, problems are not easily solved, when those empowered to do certain things don’t properly perform their job duties.

Furthermore, among other things, a judge is a trier of fact. Judges are supposed to make factual findings and then apply the law to the facts in order to render a legal decision. Unfortunately, I have come to the conclusion that many judges find the facts that allow them to make the decision they want to make. This is backwards and in my opinion completely inappropriate. Moreover, as I mentioned in Part 7 of this series, “judges are given a great deal of discretion and factual findings are not reversible by the appellate court.”

Joe Sorge:
“Agreed.”

Mark Baer:
“Forty ninth, do attorneys assist their clients in committing perjury? Some! Here are a few of my recent Facebook postings: ‘Avoiding disciplinary actions for misconduct is a simple process when boiled down to a few rules, according to San Francisco-based California State Bar prosecutor Susan Chang.

‘Don’t lie, don’t steal and don’t cheat,’ Chang said in suggesting how to avoid bar disciplinary action. ‘It’s what you learn in kindergarten.’’

The above quote is from an article by David Ruiz titled ‘State Bar prosecutor advises attorneys how to avoid trouble’ that was published in the October 11, 2013 edition of the Los Angeles Daily Journal.

I don’t know about you, but I find it incredibly sad that so many lawyers cannot abide by such basic ‘rules.’

I now understand the problem with our ‘legal system.’ It seems that many lawyers confuse giving legal advice with giving advice as to how to get away with illegal activities. I knew there had to be an answer.

Joe Sorge:
“Agreed.”

Mark Baer:
“Fiftieth, Facebook and the internet are not private! Nobody ever said they were – quite the contrary. Furthermore, I am constantly attacking the legal system and judges and don’t seem to get into trouble. It is the way in which it is done that is key!”

Joe Sorge:
“Yes, but be careful. Are you aware of Michelle MacDonald, an attorney in Minnesota who recently filed a federal suit against a family court judge? The judge subsequently had the bailiffs handcuff her to a wheelchair and throw her into a holding cell overnight. I don’t think it was inaccurate for Dan Brewington to allege that his judge abused his daughters to the extent that the judge denied them access to their father. We think the judge should have gone to prison, not Dan.”

I am afraid that I don’t know anything about the Michelle MacDonald matter and can therefore not comment. However, I have never said that judicial corruption doesn’t exist or that some judges are unsuited to hold such a position. Nevertheless, Divorce Corp. takes highly unusual situations and makes it appear as though it were the norm, which is false and misleading!

To be continued…