July 7, 2014

Resolving Conflict vs. Sowing Strife

Categories: Collaborative LawDivorce

184087277I lost the last week of my life to a client who came to my firm after having attempted to represent himself in his own divorce and making a mess of it. On the one hand, it felt good to be the white knight who got to swoop in and (try to) fix what had gone wrong; on the other hand, it was a ton of work, made necessary by (among other things) an opposing attorney who had naturally taken advantage of my new client’s pro se status to ask the judge for the moon in a temporary hearing. Then, because our client had failed to respond to his wife’s motion and affidavit, he was not permitted to make any argument on his behalf at the hearing itself. Enter my firm, and we petitioned the judge at least to allow him to file a responsive pleading, so his side of the story would not go untold.

But this not a post about the wisdom (or lack thereof) of representing oneself in a complex divorce. It is about the way in which the traditional litigation model pits parties and attorneys against each other and encourages the exploitation of lack of knowledge or experience. This, in a process that is supposed to resolve conflict and set the parties on a course to get on with their lives. The means and ends of traditional litigation in divorce, in other words, are diametrically opposed. How might this situation have gone differently in the collaborative model? Putting aside the obvious, though perhaps crucial, difference that no party to a collaborative divorce would have been unrepresented, neither would any party have been deliberately trounced because of his or her procedural ignorance. As a result, the collaborative model encourages the exploration of the parties’ genuine substantive interests and tries to reconcile them without recourse to procedural one-upmanship. In the end, one hopes, conflict between the parties is addressed at its root level (instead of augmented) and the process puts the parties in a position truly to move on without recrimination.


Joshua Gitelson comes to the practice of law via a first career in the entertainment industry in Los Angeles, as a film editor and writer for motion pictures and television. The son of a lawyer on the one hand and a clinical psychologist on the other, Josh has gravitated toward family law as an amalgam of these two “family businesses.” His parents’ amicable divorce inspired him to help others through the divorce process with as little rancor and conflict as possible. As a result, Josh has embraced the collaborative divorce model as a technique to complement his work on divorce in the traditional litigation mode. Learn more at https://www.lindawray.com/CM/AttorneyBios/JoshuaGitelson.asp.

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