Originally published in the Journal of the American Academy of Matrimonial Lawyers, Vol. 24, p. 411, 2012
In the past fifty years, the revolution in American family law led to a revolution in family law dispute resolution. Virtually every aspect of divorce law has been transformed since the Mad Men era, including grounds for divorce, characterization of marital property, child custody presumptions, and alimony and child support rules. Marriage is not assumed to be a lifelong commitment. Fault generally is not legally relevant. Gender equality is a fundamental principle.
In this period, family courts struggled with an increased volume of cases and ambiguous rules. They found that the tools of litigation were poorly suited to handle most of the problems presented to them. Similarly, divorcing couples often found that they did not want to use litigation to resolve their family disputes because the adversarial structure could easily escalate conflict. Many parties did not want to rely on lawyers at all, often because of the expense but sometimes because they were afraid that lawyers might stimulate new conflict or exercise too much control over their personal affairs. The development of “alternative” dispute resolution methods has been a continuing process of innovation in which professionals try to craft ever-more effective, efficient, and satisfying ways to handle conflict. In this ongoing process, past innovations sometimes became institutionalized as a new status quo, only to be challenged by even newer innovations.
This article surveys a wide range of procedures that divorcing parties now use, including self-representation. Lawyers sometimes provide “unbundled” legal services to help parties who want to divide responsibilities for legal tasks between themselves and their lawyers. Parties often use mediation, arbitration, and private judging. Norms for lawyers’ professional roles have emphasized the importance of cooperation and some lawyers offer “planned early negotiation” processes such as Collaborative and Cooperative Law. Family courts engage in a wide range of activities beyond traditional litigation and adjudication. Many courts manage or mandate parent education and services related to domestic violence. Courts regularly appoint professionals including advocates for children, custody evaluators, early neutral evaluators, and parenting coordinators.
The revolution in family law dispute resolution is still underway. Changing circumstances and limited resources can contribute to deterioration of family court services, frustration of family law professionals, and, most importantly, increased family dysfunction. These pressures create incentives for family law professionals and courts to use dispute system design methods to collaborate more effectively to serve family members and the public. The great challenge for family law professionals is to continue to create better ways to serve families in conflict and transition.
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