Divorce is often a tragedy of great magnitude for all family members. It is important for those involved in family law cases to understand how stress and trauma affect the brain in order to improve their abilities to make sound decisions.
The human brain is hardwired to latch on to negative input from the environment; this is a natural survival instinct. In primitive times, whether we were the hunter or the hunted, responding to circumstances quickly, without thinking, was necessary for survival.
Most of us no longer face the threat of a Saber Tooth Tiger or other natural hazards. But the primitive brain can continue to prompt the "fight or flight response" when we face modern threats like traffic jams, financial problems, or family conflict and divorce. We routinely permit our primitive brain to control our behavior in situations which require a more reasoned approach to problem solving and are not "life and death."
Family law litigation can feel very threatening, with big stakes and uncertain outcomes. The real possibilities of losing custody of a child or financial security and having little control over the process - these are the modern survival issues. Litigants in a Family Law case are often in a constant state of fear, which encourages a "fight" response, rather than using rational, long-term thinking.
Family Law attorneys have a reputation for “stirring the pot,” i.e. causing fear in their clients unnecessarily. When a client is afraid, and inclined to "fight," it is much easier for the divorce lawyer to get a large cash retainer. The complexity of our court system adds to the fear and uncertainty, leaving clients at the mercy of the lawyer who knows the system. Frightened and powerless, litigants are then asked to make decisions effecting the rest of their lives and the lives of their children.
Some Family Law attorneys justify this behavior, explaining they are simply “zealously representing their client” to “win” their legal case. It is important to ask: What does the client “win” and at what cost? Putting the emphasis on winning and money means that litigants, who usually have done nothing wrong, are suddenly focussed on fighting in the midst of an emotional family crisis.
Family law litigation mirrors American culture as it often places the highest value on material wealth and “winning” a court case. While this might be appropriate in other areas of law, Family Law should be treated differently.
When lawyers balance the emphasis on winning and money with attention to creating a foundation for healthy post-divorce relationships among all family members, the level of fear and anxiety is minimized. The benefits are not as easy to quantify as money or as clear as a "win" in Court, but when the case is resolved using a long-term perspective, the family and the community are clearly better off.
There are options.
Collaborative Law and Mediation are two of the better ways families can resolve divorce and custody issues more rationally while maintaining control of the process. These two divorce processes allow for addressing the emotional and long-term issues, not simply the financial aspects of the case. Collaborative Law and Mediation are highly valued non-adversarial methods that minimize or eliminate the fear and anxiety endemic in Family Law litigation. When decisions regarding ending a marriage are made in a reasoned and deliberate way, all members of the family will benefit.