“Mum hates Dad, Dad hates Mum, it all makes you feel so sad.”
Between the 1930s and 1950s, lobotomy was the clinically approved treatment for a wide range of mental health issues. Not just confined to the insane, the process was also used, often without the patient’s informed consent, to treat youthful defiance and moodiness. Essentially, it involved little more than inserting an ice pick under the eyelid or against the skull of the patient and driving it through the bone and into the brain with a mallet - where it was wiggled around a bit to destroy the tissue. While the intended outcome was sometimes achieved, such was the grotesque imprecision of the process that the treatment also had the unintended outcome of turning patients into an unintelligible shadow of their former selves. Oh, and sometimes death.
In 1949 a doctor who pioneered one of the surgical techniques was given the Nobel Prize for medicine, yet as early as the 1950s the procedure was being widely criticised and little more than 20 years later it had become widely discredited and replaced by drug therapy. So today if you go to a doctor about your child’s moodiness or spouse's defiance, the treatments discussed might include counselling, therapy and drug treatment but talk of surgery will be reserved for the small minority whose conditions cannot be treated conventionally. The medical profession was quick to abandon the promotion of a course of treatment which was avoidable and was known to potentially cause enormous damage.
The parallels with present-day family law are interesting. In England & Wales, the divorce court process has been around, largely unchanged, for decades. As specialist practitioners, we know what damage it causes and how expensive it is. As Resolution members (a national organisation of family lawyers committed to non-confrontational divorce, separation and other family problems), we know that Alternative Dispute Resolution (“ADR”) is likely to result in more successful outcomes than the adversarial process. We know that mediation is extremely cost-effective and that collaboration is typically less costly than full-blown proceedings. We know that the bringing together of a couple through ADR is likely to be the polar opposite experience of those who use the adversarial process. Family mediation has been around for decades, Resolution for 26 years and collaborative practice for six years. We know that our clients, any children they have, and their wider circle of friends and family, can be profoundly affected by relationship breakdowns, particularly when conducted intemperately through lawyers. Yet the number of couples adopting ADR is still a significant minority. Why is this?
There is still a widespread reliance by many couples on blunt adversarial techniques in their attempts to resolve interpersonal disagreements. These are techniques which alienate and polarise, and which should have been shelved years ago for all but the minority of cases where safety or unavoidable urgency are concerns. Even if Resolution spent its entire marketing budget on a nationwide press and TV publicity campaign, there would probably be no significant increase in the uptake in ADR because many of us will continue to follow the habits of a lifetime and simply direct the client to the process which we as the lawyers, and as people with an interest in making a profit, are most comfortable with. We will continue to promote the process we have understood since degree or law school; the one that we understand backwards and which we can apply in our sleep. The adversarial one.
Our clients do not need to know anything at all about the options available before they contact us because we have a professional duty to explain them in a clear and understandable way when we first engage with them. Given the options, and prior information about likely costs and the emotional effects they generate, most would surely choose ADR. The fact that many clients do not go down this route suggests that we have not been as reactive as the medical profession were to the dangers of lobotomies. The solution has to be down to us. We are the gate-keepers of the family dispute resolution processes. It is within our influence to increase the uptake of ADR among the majority of cases.
The title of this piece is a quotation from Kurt Cobain, the Nirvana singer and songwriter. His parents’ divorce, when he was eight years old, was said to have had a profound effect on him. At the height of his band’s popularity in 1994 at the age of 27, addicted to heroin and valium, he shot himself dead with a shotgun. I don't know if the divorce was acrimonious or not, but there could be a Kurt lurking in the background of any of our cases. In my fourth year as a collaborative practitioner and first year as a mediator, I cherish the hope that some day, in the not-too-distant future, all family lawyers will come to see the adversarial process as a largely antiquated, blunt and inappropriate means of sorting out people’s lives.
If you would like any further advice on this subject, please contact a member of the Birketts Family and Matrimonial team.
The content of this article is for general information only. As always, specific professional advice should be taken on each individual matter.© Birketts LLP 2010. Solicitors regulated by the Solicitors Regulation Authority.