While there may be disagreement regarding whether or not divorce in and of itself is damaging to children, the more the adults argue, especially about the children, the more likely it is that the children will be unnecessarily harmed by the divorce. The accumulated research in the field of divorce indicates that what takes place during and after a divorce can damage children. The adversarial process has a much greater potential of causing parental conflict or otherwise exacerbating it both during and after the divorce process. To the extent that parental conflict, especially about the children, harms children, the adversarial process can be seen as presenting a greater risk to children than other methods of becoming divorced. In essence, by using an adversarial approach, we increase the likelihood and level of conflict. Meanwhile, constructive and cooperative co-parenting is far less likely with ongoing conflict.
As with death, divorce brings in its wake stress, grief, fear and loss. In fact, the psychological community views divorce as a stress or grief process. They recognize that a cycle of conflict is predictable, when someone fails to grieve the losses associated with divorce. They also know that it is much more likely that the conflict will persist unless and until the grief has been resolved. As a result, such individuals are more likely to litigate intensely and repeatedly. Unfortunately, by emphasizing the legal battle, the divorce process tends to interfere with the grieving process.
In her book titled The Good Karma Divorce, Judge Michele Lowrance states "Moving forward with your life is critical to the process of healing. A court battle requires freezing at the stage of blame and fault. The debate escalates in court, focusing on who did what to whom. Character maligning becomes the focus rather than problem solving. This has an effect on you (and your relationship with your former spouse) that will last well beyond the end of the trial. Many people have told me years later that they wished they had never gone to trial because of how much it hurt them and their family."
It occurs to me that many lawyers believe that the conflict will be resolved once the parties reach an agreement or the Court otherwise makes its orders. This is a distinction between dispute resolution and conflict resolution and it is more than semantics.
In Germany, after the role of attorneys in family law changed from escalating conflict to deescalating it, the results improved significantly. As the level of conflict decreases, so does the level of anger and distrust between parties. The manner in which parents communicate with each other about the children both during and after the divorce improves as the level of hostility diminishes. There also appears to be a relationship between the conflict level and incidents of serious domestic violence, as well as parental alienation. Not surprisingly, the percentage of cases resolved outside of court increases as discord wanes. Since issues pertaining to children and support tend to be the most litigated and re-litigated matters, as the level of conflict dwindles, so does the need for court involvement in family law related cases.
All of this suggests that lawyers involved in the field of family law should have a better understanding of grief and loss. It also suggests that lawyers should recognize that spouses in high conflict divorces tend to distort reality in order to avoid grieving. Therefore, families benefit if matrimonial attorneys understand the sources of ongoing conflict between divorcing and divorced spouses. This would help to positively impact parenting during and after the divorce process, which in turn would benefit the children of divorce.
Attorneys need not be trained in psychology in order to reduce conflict. Rather, they merely need to understand the psychological stages their clients are experiencing. The five stages of grief are as follows: (1) denial; (2) anger and resentment; (3) bargaining; (4) depression; and (5) acceptance.
As my esteemed colleague, Pauline Tesler told me, "the most significant variable affecting whether a divorce will be managed well or whether it will slide into high conflict litigation is who the parties select as their lawyers. Lawyers who understand the nature of human conflict and who aim to help people resolve it, right from the start, handle their cases entirely differently from lawyers who may have reasonably positive views of mediation, but who treat it as just another way of getting to a legal-template deal and who see their job as preparing for maximum measurable gain at trial." This is entirely consistent with the psychological research which shows the benefits of early intervention to reduce levels of parental conflict and potential litigation to divorcing families. Conflict is reduced by appropriately addressing the grief and loss from the very beginning. Doesn't it therefore make sense that lawyers involved in the field of family law should have a better understanding of grief and loss?