What is Wrong with this Picture?

{4:00 minutes to read} Recently I received a notice of a Continuing Legal Education course sponsored by a bar association on the topic of child custody.

Ever the optimist, I took a look at the description and agenda hoping to find an offering on resolving custody through a non-adversarial approach. However, there was nothing offered regarding mediation or collaborative practice, both of which can be found on the website of the New York State Unified Court System.

Yes, I know that this program is geared to matrimonial attorneys and that they seek education as to the Court process. However, I find it astounding that in an all-day program, the agenda fails to include a section on attorneys discussing alternative options with their clients if custody is an issue.

The Program Agenda is divided into these sections:

• Attorney for the Spouse/Party

• Attorney for the Child

• The Role and Responsibilities of the Judge

• The Mental Health Expert/Forensic

Within these sections are topics such as “Advising the Client What Happens if Custody is Litigated”; “How the AFC Does the Day-to-Day Job”; “What is the Judge Looking For”; and “Conducting a Forensic Evaluation.”

Very practical instruction for a litigation, but even with that instruction, what I find sorely lacking is a topic on the devastating effects of a protracted custody battle on children and how to avoid it. I imagine that the effects of litigation on children might be mentioned in some of the other presentations, but I doubt the focus would be about how to avoid that impact by not litigating.  

I understand that custody battles happen, and in some cases the other party has no choice if dealing with a party who is unstable and determined to use the process to his or her advantage. However, shouldn’t there be some instruction to attorneys as to alternatives in cases that could be resolved in a mediation?

Or to truly go out on a limb:

Shouldn’t attorneys in a custody trial be required to inform their clients about mediation before they embark upon a process that often leaves the parents, as well as their children, with irreparable emotional harm?

Or to nearly fall off that limb:

Shouldn’t the New York State Judiciary Committee have seriously considered adopting the Bill (Assembly Bill A876/Senate Companion Bill S3734) that had been submitted to it for 2 consecutive years by the New York State Legislature which would “encourage the settlement of custody and parenting disputes expeditiously, voluntarily, and without adversarial (and costly) litigation?”

I certainly think so, and because I am still an optimist, I will continue to petition my legislators for passage of such a bill and continue to promote the benefits of a mediated agreement to the public.  

I will even send a letter to my bar association to request that future programs include a section on a non-adversarial approach.

Should programs of this sort contain information on the non-adversarial approach? Please feel free to leave a comment in the box below.  

Comments from Social Media

Clare, you are absolutely correct - the best techniques for achieving a negotiated settlement should be part of every bar course involving litigation, whether matrimonial or other civil litigation. It might be useful for you to contact the attorney and ask whether he/she had considered it and offer to prepare the relevant section on mediation and negotiation for the next time around.

Linda Alpert