Why I Decided to Focus on ADR

By Nancy A Hetrick, CDFA™, MAFF™, AWMA® On 08/16/2019

When I got my CDFA® credential in 2011, I thought I would be doing primarily litigation support – until I did some. 

My own divorce was a do-it-yourself divorce which turned out to be a huge mistake. I failed to put enough detail in the final documents to protect myself from my ex-husband’s ultimate bad behavior and ended up returning to court 3 times in the following 6 years.

I still believe firmly that there was no reason for us to waste money on attorneys as we were both reasonable people, at least at the time, and were able to negotiate a settlement. As I was forced into the family law system with post-decree matters, I was so disturbed by the antagonistic language being used by the opposing counsel and of course thought it was being driven by my ex. It wasn’t. I’ve since learned so much about the litigation process and family court. Most of it very troubling. 

The antagonistic nature of litigation results in otherwise cooperative people thinking that their spouse is out to get them, even though they’re not. It creates a win or lose-mentality that convinces people they can’t “win” unless their spouse “loses”, and it sets up parents to struggle with co-parenting for the rest of their lives. Only the healthiest of individuals can survive the process with less than utter hostility toward their prior mate. 

I now believe strongly that in the late 70’s, early 80’s, when we adopted no-fault divorce statutes in nearly every state and the divorce epidemic began, we made a critical error. We decided to use a criminal system to deal with a family issue and every couple I’ve seen go through this process comes out feeling punished, bruised, and bitter. I was shocked to hear multiple judges and family law attorneys say, “I know I’ve done a good job if both parties are equally upset.”  Wow. These are people’s lives we’re playing around with! We actually start the process by suing our spouse. Does that really make any sense?

The same time I was starting my career and getting exposed to the family law system, an unexpected thing happened in my office. Couples started showing up together. They had no lawyers, no mediators, and just wanted my help figuring out a mutually beneficial settlement that was tax-smart and gave them confidence that they would both be ok in the next phase of their lives. It was the most rewarding work I had ever done in my career. And the bonus came months later when one of the spouses would call me and say, “I’m so surprised! We’ve been able to stay friends. I never thought that would be possible.”  THIS is the way most divorces should end. 

I immediately started seeking out training in mediation so I could help these couples more effectively and it’s now the focus of my business and as word has spread, with three mediators on staff we have such a steady flow of cases that I haven’t marketed my practice actively in over four years. Americans are demanding a better option. My clients typically leave saying, “Yes. I think this is actually going to work and we’re both going to be ok.”

In 2015, a documentary called “Divorce Corp” hit Netflix. 

“A shocking exposé of the inner workings of the $50 billion a year U.S. family law industry, Divorce Corp shines a bright light on the appalling waste, and shameless collusive practices seen daily in family courts. It is a stunning documentary film that anyone considering marriage or divorce must-see.”

When I watched that film, I was dismayed to discover that my initial observations about the family law system were even worse in reality. The documentary is still available if you want an eye-opening view behind the scenes. 

I’ve spoken with several Family Law Attorneys in Arizona who are so troubled by the inconsistent rulings coming from our judges that they are embracing Collaborative Divorce and Mediation to better be able to facilitate settlements for clients that are fair and educated. One specific attorney I know said he could no longer in good conscience take a client to trial where it would be a complete roll of the dice what the outcome might be. So many of our family law statutes are vague and open to wide interpretation by judges that outcomes become completely unpredictable. Alternative methods of dispute resolution ensure that control stays in the hands of the couple making decisions about their lives.

Unfortunately, approximately 10% of the population is either not emotionally stable enough to mediate or one of the hundreds of thousands of undiagnosed personality disorders that make cooperation impossible. For those individuals, they have no choice but to litigate. When that’s the case, I have carefully screened attorneys in my area that are settlement minded, will refrain from meaningless motions, appeals, and antagonistic language and actually facilitate a settlement. They’re not in the majority but they are out there, and I enjoy supporting them and their clients.

Please don’t misunderstand, the law has its place. But for the majority of couples, it is my opinion that divorce is not one of the situations where our legal system will result in the most optimal outcome.

 

Tagged with: divorce, netflix, family, law