Thursday, April 14, 2016

Litigation aftermath: Good sportsmanship

Barack Obama recently said that one of his biggest mistakes as President was not planning adequately for the political aftermath in Libya once the ouster of strongman Gaddafi was accomplished. I think there is a lesson here as well for family law professionals and parents involved in litigation.  

Some liken family law litigation to a military campaign: the lawyers and clients develop their respective strategies, plan tactics to put the strategy into action, gather supporting evidence and witnesses, consider the other party’s strengths and weaknesses, and time their tactical moves carefully in anticipation of battling in the courtroom.  All this planning and activity is based upon one principle premise:  the “enemy” is the other parent, one’s adversary.   In too many instances, however, planning for trial does not include planning for its aftermath—and once the court has ruled and is no longer involved, the landscape is usually quite different.  

During the period leading up to trial, parents are subject to outside constraints. The court makes preliminary rulings defining what parents can and cannot do and court officers, such as evaluators and lawyers, are always looking over parents’ shoulders, judging their behavior.  As one father remarked: “We’ve outsourced leadership of our family to others.”  In this context, parents are well-advised to do right.  They may not want to do right, they may want desperately to act upon their baser instincts – but it is not in their interest to do so; there is too much to lose.

But after making its ruling, the court closes the case and the legal and mental health professionals step out.  As a consequence, the external constraints, for the most part, are removed.  Although most parents feel relieved that they no longer have outsiders looking over their shoulders, they may be taken aback by the realization that the other parent is also relieved of these constraints.  And once the professionals are no longer involved, both lose ready access to good counsel and guidance.  Parents then worry: “What now will constrain bad behavior?”

In the aftermath, whether they’ve “won” or “lost,” I find that the main focus of these parents often shifts from litigating their interests to trying to manage the attitudes of the other parent: “They only did the right thing before because the court forced them to.   I can’t trust that, they need an attitude adjustment.”   In the absence of external constraints, each becomes over-invested in transforming the other’s mindset to what they view as appropriate and acceptable. 

These efforts, I’ve observed, have something in common:  In almost all instances, they failed. 

Why?  Well, the “winners” in litigation often feel vindicated: “The court said I was right—so why should I do anything different?”  And the “losers?”  For reasons of saving face or not thinking they have anything more to lose or simply because they still feel correct in their beliefs, they feel little incentive to alter their mindset. Indeed, many feel even more entrenched in a position of being victimized, first by their ex, now by the legal system.  It is difficult for these parents to accept that the transformations that they want to see in one another are not under their respective control.  Those changes have to come from within, not from without.

So how will these parents maintain some semblance of normalcy and order for themselves and the children in the aftermath?   The best solution is a cooperative working-relationship between equal parents.  But that gets us back to the problems solved and then created by litigation – the court settles the disputes in question but oftentimes the winner walks away with relatively more power (real or perceived), the loser with less.  It is still possible to have a cooperative working relationship when parental decision-making and parenting-time are not equally distributed, but this is difficult, sometimes impossible, to achieve when feelings are still litigation raw.  Sadly, some parents just aren’t up it – even when time has passed.

The courts and family law practitioners have recognized this problem.  Working with state legislatures, they created roles (e.g., parent facilitators, parent coordinators, decision makers, special masters) for professionals to provide oversight and guidance to families struggling with the litigation aftermath.   The goal of such intervention is modest: Maintain reasonable order and good behavior rather than transformation of attitudes and mindset.  Evidence exists that such interventions can reduce the frequency of additional litigation (see Henry et al., 2009) but, as expected, do not impact parents’ negative perceptions of their co-parenting relationship (see APA Parenting coordination project, 2010). In other words, judges may be pleased that these families appear less frequently in their court rooms, but the parents are not any more pleased or trusting of one another than before. 

When the court recognizes that one or both parents are likely to engage in further bad behavior, it may also write orders with clear behavioral expectations – and equally clear consequences for failing to comply. These types of orders can be effective, although they require one of the parties to bring transgressions to the court’s attention before the consequences can be applied.

I think it is important to note that these programs are a reaction to a problem, rather than an effort to prevent it at the outset.   I said in the beginning of this post that planning for the aftermath of litigation was often missing during the run up to trial. This is where I perceive that family law practitioners, particularly family lawyers, could be helpful.  By insisting that their clients plan for the aftermath, to consider what would be “good” and “bad” behavior regardless of the outcome, and to develop a picture in their mind’s eye of how they want to act and to be perceived by their children, lawyers can help their clients first picture, then plan, then act accordingly.  We coach children what it means to be a good winner and how not to be a sore loser before their first competition.   And with reminders and practices, such coaching usually works.