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Are divorce lawyers doing harm?

While the Hippocratic Oath is no longer required for doctors, we often hear the principle attributed to that ancient Greek oath for healers to "first, do no harm."  The translation is actually closer to "I will do no harm or injustice to them," but the sentiment is clear.  When trying to help someone, your first obligation is to not make things worse.  

Today, I attended the third in a series of public forums held by the Child Support Guidelines Task Force giving people the opportunity to comment on what should change in the 2018 Massachusetts Child Support Guidelines.  What struck me about the testimony is that very few people commented on the guidelines themselves.  Rather they focused on the perceived impact of the guidelines and of the courts on family conflict.  Almost universally, the commenters suggested that changes were needed because the experience in court impoverished families, increased conflict, and hurt children.

Whether calling for a lower formula or a higher formula, for those commenting on biases in the system or income inequality, or even when sharing the dangers of family and intimate partner violence; every commenter seemed to agree on one thing: the family court system should be helping more.

Now, admittedly this is not a random selection of court customers.  These are people who felt strongly enough to spend their afternoon in a public hearing (even online this is not a convenient or fun afternoon).  There is some self-selection of people who are looking to see change in the system, because in some way the system failed them or someone they knew.  Even acknowledging this bias in the selection, though, I couldn't help wondering: Is the court, the bar, and the Task Force doing enough to reduce conflict?  Can the child support guidelines accomplish their goal without doing harm?

I'm not sure of the answers to these questions, and much of what was discussed in the public form today went well beyond the power of the Task Force to address when making changes to a formula, or adding definition to a court guidance.  The Task Force is bound to the statute and federal requirements, and the court is limited in their creativity of solutions by statute, case law and the constitution.  And choosing to change one thing in the formula will inevitably increase the burden on one side.  There will always be someone unhappy with the result. 

Unless.... we start asking lawyers, 

who are often the gatekeepers of the court process 

to "first, do no harm."  

The problem with the court system and the rules, is not with one choice or another in making the rules.  The problem is that there is always a good and just exception to any rule.  No matter how good the court makes the rules, no matter how good the Task Force drafts the guidelines, they will always be one-size fits all solutions pasted over an infinite diversity in actual families. The court will always be a hammer, regardless of how many problems start out as nails.  


The 3 Fs are not your only option to resolve conflict.

♬ original sound - Justin Kelsey - Mediator ☮️

Recognizing that lawyers, as problem-solvers, have many tools besides going to court, is the key to better problem solving, to finding solutions unique and respectful to more families.  Legal training should include interest-based negotiation training, mediation training, and collaborative law training.  Until that time when law schools catch up, you (the reader) can support this necessity by referring to and working with lawyers who have chosen to take trainings in these additional disciplines, to avail themselves of more tools to help their clients.  

It's time to expect more from lawyers then simply "fighting" on their client's behalf. An evaluation of a client's case should include the whole picture. Clients should be given the chance to understand that going to court, even if they win, will often increase the level of conflict they have.  Even clients who have been abused or otherwise had their power taken from them, deserve to know all the options and choices of how to proceed.  Educating them about problem solving is empowering.  Being a champion for someone doesn't teach them anything about how to defend or stand up for themselves in the future.  

If we're going to participate in the most intimate of people's family conflicts then we have an obligation to use all the tools at our disposal to help reduce conflict, especially before taking any action that would increase it.  I can't help wondering how many of the stories I heard today would be different if that approach was taken first.  Would they be praising their attorneys or mediators instead of complaining about them?  That should at the very least be our goal going forward.  Regardless of what changes the Task Force recommends, there will be opportunities for fights going forward, and each one is a chance to increase the conflict or decrease it.  What will you do?


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