If you do child protection work, conducting a trial at least once if not multiple times in your career is inevitable. I just spent the last two weeks again mired in a child protection trial. It was stimulating, interesting, challenging work. Evidence was examined, witnesses questioned, and evidentiary arguments made. It was 9 days of intense work spent taking apart the other side’s case and attempting to tear it down. It was unpleasant at times.
Trials are necessary in the world of child protection. No one should be expected to lose his or her child without a sound testing of all the evidence. A certain amount of unpleasantness is worth the objectives a trial attempts to achieve in child protection.
In most cases, trials are not necessary in the world of family law.
The simple reason for this is that trials are by their nature, destructive. No one comes out of a trial more willing to work with the other party. Unfortunately, the reality is that life with the other spouse usually does not end after a trial for family law clients. Whatever the final order after trial, parties will need to work together at least to some extent in the future. Most orders will require the parties to have contact whether it is through exchange of financial information, calculation of support, exchange of information about the children, communication about holidays and special days, and communication about some incidences of custody. A trial destroys the ability of spouses to have these conversations in a rational and calm way. No one wants to communicate with another person who has spent days trying to question one’s credibility and choices.
When choosing a method of dispute resolution in family law matters, the longer-term goal of maintaining a relationship with the other spouse should be given importance. Developing communications skills with the other spouse needs to start from “Day 1” of the separation, even if one or both parties are emotional or angry. In my experience, sometimes this is best (and most economically) achieved with the involvement of a family professional who has special skills in helping clients communicate effectively despite high emotions. It is usually not best achieved by engaging in inherently high conflict processes such as trials!
Trials are not for most family law cases! Use it wisely.
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