I just read an interesting OpEd piece by Sylvia Clute, author of “Beyond Vengeance, Beyond Duality: A Call for a Compassionate Revolution”.  Her article is called “The Courtroom’s Little Lie:  It’s About the Whole Truth” http://www.opednews.com/articles/The-Courtroom-s-Little-Lie-by-Sylvia-Clute-100913-463.html.  In the article she states that the very adversarial system that promises justice encourages family litigants to tell “little white lies” in order to win their cases, because the issues at stake are so high.  “Consider what can be at stake in a divorce suit” she writes. “First of all, you can lose custody of your children. You might lose your home or your business. The IRS might come after you if your spouse testifies about income that you never reported. Your spouse might report illegal drug use, especially relevant in a custody case.”  She contrasts this system with the collaborative law system, where both attorneys work together to assist their clients in finding a “win-win resolution for everyone.”  My collaborative clients often ask me how they can trust their spouse to be honest and forthcoming with information, and I tell them that there is a much better chance for the truth to emerge when the resolution is in the hands of the couple who are communicating in a non-threatening, confidential arena, then when it’s in the hands of a judge.  Collaborative lawyers, when they are drafting agreements, can fashion language that is as protective of their client’s rights as any court-ordered decrees — in fact, they are often more protective, because both lawyers and their clients must be completely comfortable with the language before anybody signs.  I have much more confidence that “justice” will emerge from a collaborative approach than from within the very system that advertises that justice as its goal.

Yesterday I attended the funeral of Judge Brent Burg, the Associate Judge of the 312th Judicial District Court of Harris County, Texas. The funeral home was packed with people. All of the seats were filled and people were standing six-deep in the rear of the chapel. I looked around and saw almost all of the Houston family bar – all of us deeply grieved at the loss of a friend and the kind of judge everyone wishes sat in every court in every county in the state. Brent had all of the attributes of a perfect judge: patience, wisdom, good humor, empathy, and most of all kindness. Everyone who appeared before him felt that they had been heard and that the decision made by the judge was fair and unbiased. Who could ask for more?

In all fairness, being a family court judge is a difficult job. The dockets are overcrowded, the work days are long, the attorneys are often rude and combative, and the stories of the litigants can be a litany of anger, fear and pain. It is no wonder that many judges are exhausted and impatient and lose their tempers on occasion. Which makes it even more remarkable to find a judge like Brent Burg who never seemed to tire of the job or lose his patience. He will be missed by all of us.

In early June, I heard a report from the Harris County District Clerk, Loren Jackson, that 77,000 new family law cases were filed in Harris County in 2009, to be handled by 9 Family District Courts and a 10th court dedicated to family violence cases. This compared with only 46,000 cases filed in the 39 civil district courts. To say that the family district courts are overwhelmed with the volume is to understate the problem. The result of this huge volume of cases and the limited number of courts available to hear them is that couples who need to have their cases heard often wait months and sometimes years to reach a resolution to their family matter.

What many couples may not be aware of is that they do not have to rely on the litigation route to get their divorce or other family matter resolved. If they are willing to put their anger and fear aside, there are other routes to resolution available to them. One of them is early intervention mediation. Mediators are neutrals, trained to assist people in reaching agreements. If resolution is reached with a mediator, a family attorney can be hired to do all of the paperwork necessary to finalize their case legally.

In the event that the parties are unable to settle in mediation, they can then hired trained collaborative lawyers to assist them in reaching a resolution. Collaborative law is conducted out-of-court, in the privacy of the lawyer’s offices. Collaborative lawyers have special training in teaching couples to reach agreements on their own, without having to resort to the courts. If needed, communication facilitators and financial professionals can be part of a collaborative team to guide the couple through the process. National statistics on collaborative law show that between 90-95% of all collaborative law cases end in settlement.

Given the backlogs at the courthouse, litigation should be seen as a last resort in most cases. When looking for a lawyer, you should ask if the lawyer you are seeing has been trained in collaborative law. They can then tell you if that approach is appropriate in your case. There will always be cases that need the assistance of a judge or jury to get resolved. Those should be the ones at the courthouse. Not the ones that could be resolved by the parties with the help and guidance of trained mediators or collaborative lawyers.