My May Day Proclamation – Eight Years Later

  Posted in Divorce

Eight years ago today I was out for a jog, unwinding after a long day at work. A particularly contentious divorce case was on my mind. A few miles later, I walked in the door of my house and penned the following introduction to an article which I then published in a client newsletter:

May Day Proclamation: No More War of the Roses!

Three thousand seven hundred forty-one divorce and custody cases were filed in Tulsa last year. That’s on top of over 2,200 cases that were still pending at the end of 2003. That means five judges were available to handle 6,000 cases. You can do the math.

Fortunately, the vast majority of these cases are resolved without a trial. Estimates are that 90% of these cases settle. Oftentimes, however, many months have passed, thousands of dollars have been spent on legal fees and bitter conflicts have erupted between the parties. These are but some of the side effects of an adversarial system for family law cases. And although many well-intended lawyers and judges in Tulsa and around the nation are attempting to reform this system, old habits die hard. These are some of the factors which led to my May Day Proclamation.

May Day Proclamation

Effective May 1, 2004, I will no longer accept divorce and custody cases for trial. As the first lawyer in Oklahoma to make this declaration, I join a growing number of attorneys nationwide who have pledged to resolve divorce and custody cases without litigation . . . .

Eight years later the statistics have changed little – except I have learned the out-of-court settlement rate is more like 95% instead of 90%. By making my May Day Proclamation, I chose to focus 100% of my divorce practice on something that happens 95% of the time – settlement – instead of spending the bulk of my time preparing for a divorce trial, which only happens around 5% of the time.

Julie Macfarlane, a law professor at the University of Windsor, in her book, The New Lawyer: How Settlement is Transforming the Practice of Law, refers to “the myth of the trial”, an often-held belief of divorcing parties that they will get to tell their story to a judge who will then render a decision (presumably in their favor).

Increasingly divorcing couples, expressing dissatisfaction with the limits of traditional litigation, are seeking processes which focus on practical problem solving instead of positioning themselves for a trial which is unlikely to happen.

Divorce lawyers, too, are adapting to changing preferences of clients by learning to assume different roles, that of a conflict resolution advocate. In this role, lawyers, oftentimes working with other professionals like divorce coaches and neutral financial specialists, help clients engage with conflict and work with – rather than against – the other party to arrive at jointly agreed outcomes.

Bernard Mayer, Ph.D., Professor at the Werner Institute for Negotiation and Dispute Resolution at Creighton University, wrote Beyond Neutrality, Confronting the Crisis in Conflict Resolution. Mayer says lawyers in non-adversarial processes served different roles. We are Conflict Analysts, helping our clients decide how to approach conflict, how and when to ask questions, when to raise issues and when to make concessions. We also serve as Communication Allies, listening and helping client’s identify their real needs and helping clients frame information and ideas in a way so others can hear their underlying meaning. We serve as Legal Coaches, bring our experience to the table to support and empower our clients to make informed decisions. And finally, we serve as skilled Negotiators supporting our clients in finding a workable solution.

As I said in my newsletter eight years ago, “Divorce is an unfortunate fact of life in our society. Although we, as lawyers, may not be able to change the fact that people are going to get divorced, we can have an impact on the way it happens.”