Is Willful Ignorance a Good Quality in an Attorney?

The empirical research supports a facilitative approach in family law matters.

Posted Apr 21, 2017

According to Black's Law Dictionary, "In the most general sense this term [attorney](link is external) denotes an agent or substitute, or one who is appointed and authorized to act in the place or stead of another."

Whether I've given presentations to lawyers, law students, or the general public, I always receive the same answer when I ask why people call lawyers, which is "to help them solve a problem." 

If it's long been known that "mediation offers a more peaceful alternative to traditional divorce negotiations(link is external) and has been found to achieve higher settlement rates than litigation", would you expect lawyers to provide that information to their clients? If so, think again!

The following is an excerpt from an article titled "Mediation: Negotiating a More Satisfactory Divorce" that was published by Harvard Law School's Program on Negotiation on March 27, 2017 and is based upon the results of a study that was published in 2012:

"Mediation would seem to offer a more peaceful alternative(link is external) to the traditional adversarial approach to divorce negotiations. And, indeed, mediated divorces, now widespread, have been found to achieve higher settlement rates than litigation...

As compared with those engaged in litigation, participants who engaged in mediation reported that they reached higher quality agreements, as measured by how tailored, fair, comprehensive, and clear the agreement was....

In addition to looking at whether the divorces were mediated or litigated, the researchers examined the negotiating style of the mediators and lawyers involved. In a facilitative mediation, the mediator focuses on helping parties carry out a smooth, open conversation; in an evaluative mediation, the mediator may also evaluate parties’ positions and even propose a settlement. Many divorce attorneys have begun to adopt a more facilitative approach—for example, by trying to de-escalate conflict and improve the quality of the relationship between the divorcing spouses.

Study participants whose mediator or lawyer took a facilitative approach to the negotiation, as measured by their tendency to engage in problem solving behaviors and help their clients focus on interests, generally reported high-quality outcomes.

Overall, the results suggest that couples would be wise to be aided by professionals who believe that reducing conflict and encouraging an open dialogue are more likely to promote a satisfactory divorce than a straightforward competitive approach would."

Notice that it's the facilitative and not the evaluative approach that has been found to lead to high quality outcomes. In fact, according to Harvard Law School's Program on Negotiation, "couples would be wise to be aided by professionals [who took a facilitative approach.]"

If that's the case and if this information has been known for quite some time, wouldn't people consulting with or retaining family law attorneys expect such wise counsel? Would it make any difference if this information were not merely based upon that 2012 study, but from empirical support from nine studies?

article continues after advertisement


The following is an excerpt from Joan B. Kelly's article titled "Family Mediation Research: Is There Empirical Support for the Field?"

Based on a variety of methodologies(link is external), measures and samples, the nine studies described suggested strong support for the use of mediation in family disputes. In public and private sectors, in voluntary and mandatory services, and when provided both early and late in the natural course of these disputes, family mediation was consistently successful in resolving custody and access disputes, comprehensive divorce disputes and child protection disputes. Mediation has given evidence of its power to settle complex, highly emotional disputes and reach agreements that are generally durable.

Settlement rates in custody, comprehensive divorce and child protection mediations generally ranged between 50 and 90 percent, with the exception of the most difficult child protection cases involving parental termination. Contrary to some expectations, mediation worked with angry and high conflict clients and sometimes for those with serious psychological and family problems. What was necessary were well-trained and experienced mediators. Profound distrust and a lack of fair-mindedness on the part of one or both partners more often interfered with reaching agreements than degree of anger (as is true in litigation processes as well).

Client satisfaction was surprisingly high in all studies and settings on a large number of processes and outcome measures. As would be expected, satisfaction was higher when clients reached full agreement as opposed to partial or no agreement. Those who used custody mediation were substantially more satisfied than parents using other court processes. Repeatedly, clients indicated that they felt heard, respected, given a chance to say what was important, and not pressured to reach agreements. They reported that mediation helped them to work together as parents, and felt that their agreements would be good for their children. Mediation clients in the private sector were significantly more satisfied on almost all measures of process and outcome than were those using adversarial divorce processes. This was true even after controlling for any differences between mediation and adversarial divorce samples. Where gender differences in satisfaction were found, the legal context appeared to be an important factor, as were the issues in dispute.”

Mark B. Baer, Esq. is a mediator, collaborative law practitioner, conflict resolution consultant, co-author of Putting Kids First in Divorce, and co-founder of Family Dynamics Assistance Center. He also regularly writes for the Huffington Post and Psychology Today.