Over the years, I have written a great deal about how our personal biases, beliefs, assumptions, expectations and values shape our worldviews and decision-making, among other things.
In his article titled "Resolving a Dispute is like Traveling", Michael A. Zeytoonian said the following:
"Picking the wrong process and the wrong kind of lawyer(link is external) is like hiring a surgeon when what you need is a few physical therapy sessions."
I could not agree more, and make the exact same point in "The Personality and Philosophy of Attorneys Impact the Results(link is external)".
What I have discovered over the years is that, generally speaking, litigators believe that litigation is the best approach for addressing legal disputes, mediators believe that mediation is the best approach, and collaborative law practitioners believe that collaborative law is the best approach. Moreover, there are different types of mediation and different mediators favor different mediation models and styles.
I'm afraid that these preferences are based upon the personal biases, beliefs, assumptions, expectations and values of any given professional. Furthermore, not all beliefs are fact based, regardless of how sincerely held such beliefs may be.
While it's true that all human beings are biased, these particular biases lead to a great many problems because consumers lack the knowledge and understanding of the different dispute resolution methods available, let alone the different styles within any given method.
Consider the following excerpt from an article, "All in the Family (of Licensees)(link is external): Pragmatic Approaches to Implementing Paralegal Integration into Family Law":
One of the unique challenges of paralegal regulation is that, unlike lawyers, paralegals are almost exclusively in what are referred to as 'public facing' areas of law. Most of their clients do not have much business or legal sophistication or an understanding of the legal system. In addition to concerns around paralegal education and training, the Morris Report also notes that a complaints-based disciplinary system shifts the responsibility of protection of the public to members of the public themselves. Unfortunately the public is often not properly positioned to do this as they lack a proper understanding of what is to be expected when securing legal assistance. Family proceedings in Ontario are already unnecessarily complicated, lengthy, and expensive, due to unprofessional conduct by lawyers in the form of incivility."
Along those same lines, the following was a comment made on my Psychology Today article, "Injustice at the Hands of Judges and Justices":
If you were to ask anyone who knows me they would not hesitate to confirm that I have always placed the 'responsibility' of the authority overreach into the hands of the parents (litigants, as you prefer). Ignorance is no defense. Some may agree that by placing their ignorance into the trustworthy hands of an attorney absolves parents of their lack of knowledge....How is a parent to know which is the right attorney?...
I am not usually one to play the game of 'answering a question with a question' but as you said 'Picking the wrong process and the wrong kind of lawyer is like hiring a surgeon when what you need is a few physical therapy sessions.' So to answer your question as to whether we should blame the attorney, my very condensed answer would be yes. My argument is simple: if attorneys—rather ALL sworn officers—were to abide by their oaths, canons, duties, and ethical obligations, there wouldn't be any 'wrong processes' or 'wrong kind of lawyers' to choose from and the process would be lawfully streamlined....
The parents/litigants don't simply choose an attorney, they entrust their life, livery, and happiness into these 'legal representatives.'"
As I said in my response, I wish I could disagree, but I can't.
Vincent Cardi's article, "The Law As Violence: Essay: Litigation As Violence(link is external)", published in the Wake Forest Law Review in 2014, ended as follows:
"Making lawyers and the public more aware(link is external) of the serious psychological harm to those involved in litigation is a moral obligation of the profession and would likely lessen the harms over time. As attorneys, we each have a moral obligation to know who will be hurt by our actions and a professional obligation to tell our clients of the harm that will likely accompany litigation."
One of many other points Cardi made in his article was set forth as follows:
"Professor Daniel W. Shuman points out(link is external) studies showing that delays in the litigation process are a particular cause of psychological harm to litigants."
Irrespective, one of many other things I long ago realized is that people interpret our actions and words in accordance with their personal biases, beliefs, assumptions, expectations and values. As a result, a great many litigators somehow believe that I think that people should never litigate their disputes. However, I have never said any such thing and never would.
Although I no longer litigate and haven't for quite a few years, I acknowledge that litigation is sometimes necessary. However, it should be utilized as a means of last resort and there are different ways of litigating.
You can effectively litigate without unnecessarily escalating conflict. Furthermore, there are things you can do to deescalate conflict, while still litigating. I oppose prematurely jumping into litigation, unnecessarily escalating conflict in litigation and believe that litigators should try and deescalate conflict, to the extent possible. Is that too much to ask?
As an example, when a parent is denied access to their child, they typically consult with and retain a litigator or pursue litigation on their own. A Request for Order Regarding Child Custody and Visitation or other such motion is then filed with the court and served on the other parent.