In referring to the coronavirus and the devastation it has caused to so many families, Newt Gingrich said:
“After each cycle of loss, there has been a rebirth of the American spirit, determination to build a better future, and deep belief that we Americans cannot be defeated or conquered. Instead, we have a compulsion to work toward a bigger, better, more fulfilling life for our children and grandchildren.”
-Gingrich, Newt. “Newt Gingrich: Coronavirus—Get ready for life after COVID-19. Here’s what to do today.” Fox News, 8 April 2020
During this coronavirus pandemic, the family courts are essentially closed (with few exceptions). However, family disputes continue. Your court ordered parenting plans now have a vague application to our current life’s circumstances. What do we do when we no longer have the court to rely on to solve our problems? How can we learn to resolve our disputes outside of court?
I have been a staunch believer that attorneys should solve problems instead of create them or be a part of them. It is frequently said that because trials are based on “proof”, to fight in court we have to dig up the mud from the past to prove our case in court. However, to solve a problem, we cannot look back but rather must look forward toward to the future and determine our goals.
There are many ways to resolve family disputes outside of court. We have available to us mediation, collaborative practice, co-parenting guidance from mental health professionals, and attorneys who desire to work with a client to settle a case prior to filing with the court.
Mediation is a process where an unbiased third party (mediator) works with the parents to help them create a solution to parenting issues such as a timeshare schedule, holiday schedule, travel, education, health care and support issues. Property and support issues are also discussed. One should consult an attorney about legal rights prior to attending mediation. Mediation can be attended with or without the attorneys.
The collaborative process is an up and coming voluntary dispute resolution process in which the parties settle their issues without resorting to litigation. In choosing this method, you are agreeing to agree. You make the decisions – not a judge. This process is carried out through a series of meetings with the assistance of a “team” which consists of an attorney for each party, a financial expert and a facilitator/mental health expert. Each spouse’s attorney must be trained in the collaborative process.
Though the court consists of wise judges, when you put the decision in another’s hands, you never know what the outcome may be. Also, the judges don’t often have the ability to hear facts that may be important to you because every aspect of your life is not always admissible in court under the rules of evidence. A court has the ability to decide who is right or wrong. But, the court is not there to work with the parties afterward to learn how to change. The court is not the best place to go if problems are related to one or both party’s inability to communicate, where most disputes originate. Additionally, many parents have differing parenting styles. The court cannot assist with this. The people who can help are the mental health experts. Both parties have to be willing to sit down with a counselor and be open to discuss these issues. The counselor will meet with the parents and sometimes children in differing combinations. In the long run, rather than having years of court orders in your file, you will have communication and parenting skills. Over the course of your child’s childhood, would you rather them remember the daily conflict or reap the benefits of the communication and parenting skills you will acquire?
Lastly, not all attorneys are litigious for the sake of being litigious. Many attorneys see the benefit to clients of resolving a case prior to trial. Now don’t get me wrong, there are some cases that are worth the battle. However, there are so many issues in a family court trial. There are multiple children’s issues (timeshare, education, health care and child support to name a few), property issues (dividing the house, retirement plans, bank accounts, etc.), and an award of attorney’s fees. One party is not going to win all the issues at trial. Each party is going to win some issues and lose some issues. No one is going to come out a winner. To settle a case, there has to be some give and take on the legal issues. Many people don’t consider that a case takes over a year to make its way through the court system, when all goes well. There is value in shortening that time frame and reducing its stress. There is true monetary value in reducing the legal expenses that could be used on something better.
In reading this, you may wonder why I am promoting alternative dispute resolution methods. I have practiced long enough to realize that everything I am saying here is true. I feel better as an attorney when I see a case resolved fairly than I do when I walk out of the courtroom wondering if the parties will ever speak to each other again after what was said during the trial.
Americans should be encouraged right now to start thinking about the next four or five years. What do you want to be doing? What do you want to achieve with your life? What have you learned from this experience that can lead to a more productive and fruitful life?
–Gingrich, Newt. “Newt Gingrich: Coronavirus—Get ready for life after COVID-19. Here’s what to do today.” Fox News, 8 April 2020
How do you want to spend the rest of your life and what impact will it have on your children?