The Nature of the Beast
Some in our profession think that the human animal can be tamed. They look down their nose at those of us who choose litigation to resolve certain conflicts. These idealists believe that by using mediation and/or formal collaboration, natural human impulses of anger, fear, and righteousness can be whitewashed out of existence. I disagree.
My professional experience, validated by years of reading history, confirms that wrongness of this utopian view of human conflict. Just ask the people of the Ukraine whether certain people can be reasoned with. Neville Chamberlain learned this same lesson the hard way. Had Lincoln “compromised” rather than fighting a difficult but morally right war, enslaved people would have been further victimized.
While I agree on little with the last resident of the White House, I do agree there are "nasty women" and "bad hombres". Unlike him though, I don't believe they come from below the Rio Grande. I believe they are our neighbors and even friends when they feel betrayed or frightened. Reason is overcome by emotion when some confront the earth shattering event of divorce. And there are others who are just frickin' evil.
Here's the reality: we deal with people at the worst times of their life. When people become stressed, anger, fear, and retribution (the big three negative emotions) bubble up from people's reptilian brain. These toxic emotions must be harnessed and redirected rather than denied. We must do what we can to soothe them. But when these emotions can’t be contained, the adversarial justice system is the best way to resolve the case. Not unlike Churchill’s observations about democracy ("democracy is the worst form of government – except for all the others that have been tried”), judicial resolution isn’t always ideal, but often it's the best of bad options available.
Our job isn’t to deny the messiness of marital conflict, but to wisely manage it. Just as no single medicine treats every illness, no form of conflict resolution fits every divorce. It’s the open wounds that poison families and the sooner people can move through the system the better off they will be.
Of course mediation or collaboration makes sense with certain flexible and honest personalities, sincerely looking to resolve their dispute. In those instances, working cooperatively to achieve a resolution is in everyone's best interests. But when dealing with a dishonest sociopath or someone with a personality disorder, jerking around with them at the conference table is counterproductive and detrimental. And many times their attorneys are deranged as well. A former mentor of mine observed that clients and their lawyers were like dogs and their owners. They resembled each other. True enough.
With these folks, working up your case aggressively and getting it to the judge stanches the bleeding. It’s the best tourniquet available in an imperfect process.
Please don't get the impression that I'm a nihilist. I’m far from that. As a student of Lincoln and other positive thinkers, I believe in human goodness and progress (which unfortunately is often glacial). But I‘m also a realist, and know that there are troubled people that sometimes need to be checked by the courts.
Sure it's easier and cleaner for lawyers to avoid the stress and consequences of the courtroom by pretending everyone will play nice and get along. But that’s not reality. It’s better to see the world honestly, and then decide how to behave within it, rather than being naïve or deliberately ignorant.