“The adversary system in practice is less of a search for truth than an exercise in theatre, in which lawyers present clients in the “forensic best” and victory, not veracity, is the ultimate goal.” 1
The pursuit of truth and protection of rights and entitlements through an adversarial legal process is believed to be best achieved by zealous partisan representation of both parties.2 The role of the lawyer is to zealously advocate for ones client throughout a process which requires the crafting of legal claims and channeling of evidence to prove those claims. The goal is to convince a judge that your client’s position is the correct one. The rights based justification for zealous advocacy is problematic as it assumes that any legal interest deserves protection.3 This further reinforces the assumption that settlement means unacceptable moral capitulation.4 The dualistic nature of our system i.e. the “right vs. wrong”, the “winner vs. the loser”, the “plaintiff vs. the defendant” and the assumption that there are only two sides to the process, has the effect of distorting problem solving in numerous ways. It presupposes the need for the determination of a single “truth” that will be arrived at after the presentation of two sets of sets of self – interested versions of the facts. Clearly, the danger of this dualistic process is that they can lead to exaggerated claims by both sides which may fail to reveal information that would be useful or necessary to the decision maker. In most realms of human inquiry, e.g. science, academic research etc, the search is not to limit the inquiry to only adversarial presentations or either/or answers, but for all possible sources of information. Outcomes can be distorted as factual development and legal argument is left to those whose advocacy roles provide for one-sided presentation based on partisan and partial information.5
The goal is to win – this is what each side strives to do. Yet, one must question who defines “win”? In family law situations, there is rarely a client who has “won” after a judicial determination within an adversarial process. A win/loose decision will often not address the problems and conflict that caused the original dispute. Within an adversarial framework, adjudication is based on historical facts and often does not take into consideration solutions that would be necessary for the future family relationships. There may be a different set of priorities as a result of the need to maintain the ongoing relationship that did not exist at the outset of the litigation. As long as the adversarial model is the “default model” there will be little incentive to consider other potential more useful options.
The classic adversarial model can be viewed as justifiable in cases such as criminal prosecutions where there are clear lines i.e. the state must prove its case against the accused and the accused should have the right to a process which requires vigorous adverserialism. This is not the case in family law, where such highly adversarial pursuits have long lasting and far reaching effects, far beyond those of the two parties before the court. The adversarial system has clearly not adequately been able to address the issue of the impact to third parties. Although the adversarial model does have its place, it should not dominate the entire legal system.7 Children and the extended family are often drawn into the litigation and are affected detrimentally by the adversarial processes. There is often a lack of recognition that the parties have other legitimate interests other than those rights and entitlement to money and property. Custody is often viewed as another “entitlement” or “right” and parties are caught in a system in which children are viewed as another commodity to fight over. In one study, the primary reason given by both men and women in using the adversarial system is to “get” custody. There is the perception that it is a “right” that they have that can be secured through the legal process.8 Judges, lawyers, legislators and administrators have grappled and struggled with this problem for years. How can we determine what is in the best interests of the children and how do we make the determination of children’s issues fit with the adversarial model of justice?
Many family law lawyers are recognizing that in order to best serve the needs of their clients, they must look at a broader more client focused practice that does not necessarily have litigation as the primary method of dispute resolution. With the recognition that more cooperative and client focused models are much less emotionally and financially draining on families, many lawyers have embraced an alternative practice that will allow them to better meet the needs of their clients. Certainly, a litigation process is necessary. However, it should not be the primary process. Litigation should be the “alternative” process in the resolution of family disputes.
Written by Milka Vujnovic - © April, 2008Taken from my Master of Laws, Major Research Paper - Resolving Family Law Disputes– A Critical Look at the Impact of Lawyers on Family Law ADR Processes. Osgoode Hall Law School.
1 D. L. Rhode, “Ethics in Practice,” In Ethics in Practice: Lawyers' Roles, Responsibilities, and Regulation. Ed. Deborah L. Rhode. (New York: Oxford University Press, 2000) at 10.
2 Ibid at 8.
3 Ibid at 10.
4 J. Macfarlane, “Why Do People Settle” (2001), 46 McGill Law Journal 663, Or in - Julie Macfarlane, Editor. Dispute Resolution, Readings and Case Studies 2nd ed. 2003 Emond Montgomery Publications Limited Toronto at 71.
5 C. Menkel-Meadow, “The Limits of Adversarial Ethics.” In Ethics in Practice: Lawyers' Roles, Responsibilities, and Regulation. Ed. Deborah L.Rhode. (New York: Oxford University Press, 2000) at 127.
6 Ibid at 129.
7 C. Menkel-Meadow, “The Limits of Adversarial Ethics.” Supra Note 74. at 128.
8 D. Ellis, N. Stuckless, Mediating and Negotiating Marital Conflicts, (Thousand Oaks, California: Sage Publications. 1996) at 8.