Imagine yourself climbing out of bed every day and heading to work in a job where you don’t know quite what’s going to come at you, from what direction, at what speed, and where the “bombs” are lurking. And now imagine doing that every day for years, with the burden of being expected to deliver a perfect score and not make “fruit salad” out of the problems you are faced with. Sounds stressful, doesn’t it? This is how I imagine a family court judge feels when faced with a list of tens of cases that need to be sorted for urgency, deferred or “sent upstairs”.
A recent visit to Chuckee Cheese (Canada) and a video game of Fruit Ninja brought to mind a comparison between judges and fruit ninjas. Odd I know, but valid. As a Fruit Ninja, you need to quickly identify the fruit that’s coming at you, avoid the bombs and bananas, and at the same time decide where to accurately slice the fast-flying fruit, hopefully, more than one piece at a time, without making a moosh of it. (For the record, I wasn’t bad at Fruit Ninja for five minutes, and I think that’s about as long as I’d last as a duty list judge).
For judges, the need to make fast and accurate decisions and then live with the reality that their best often isn’t seen that way by litigants, is definitely not fun and games. Judges suffer stress and trauma as a result of their work, and that is not healthy for them, the system or the court users.
Going to court is extremely stressful; it is also costly and often downright terrifying. The fact that the judge is playing Ninja would come as a shock to most people who are in court to have their case decided. Quite naturally, there is no space in the mind of a litigant to think about the experience of the judge. They simply want the judge to give the time and attention to really listen to their case, to distinguish their circumstances from all the other cases that judge has ever heard or will hear, and to decide in their favour. At the very least, when a person does not win, they want to feel that the process was fair and considered. They certainly don’t want to think of themselves as one more flying object the judge has to slice, dice or duck.
Nobody wants to go to court to be treated like a piece of flying fruit, right?
The reality is that every case is either flying fruit or a bomb. If the case is urgent (a bomb) it will get priority, if not, there is a high probability that the spouses will be asked by the judge to go outside the court room with their lawyers and work it out. Now for most people, that is absolutely not why they came to court. If they could go outside and work it out, why would they have spent all that money on lawyers, paying them to draw and file documents, taking time out of life and work, and withdrawing anything that was left in the goodwill bank?
As it turns out, they are very good questions, because in many cases, people do go out of the court room and they do work it out with the help of their lawyers. Does that feel unsatisfactory? Will it be one huge compromise? Will it be an act of desperation to get it over with? Will it be to save the great big cost of yet another day in court? Who knows, but presumably elements of all of these possibilities will be part of the decision-making experience.
So, to the real point of this article.
For anyone contemplating court, if you are prepared to play “Judicial Fruit Ninja” or the game of “Resolve it Yourself”, what takes you both to court in the first place? If this feels like a hard or a harsh question, is it worth considering the alternatives if you and/or your ex could take a different path from the get go?
What if you had initially consulted a collaboratively trained lawyer, psychologist or financial planner?
Any one of these professionals can help engage a collaborative team to move you through settlement negotiations in a way that supports the emotional and financial consequences of your divorce, as well as addressing the legal aspects. In fact, chances are that you will find there is a lot less “law” in divorce than the average lawyer thinks is the case. This is said with no disrespect to lawyers working in the court or the shadow of the court. As an escaped litigation lawyer, I can swear that knowing that court proceedings can come to the rescue if you can’t “drag the other side across the line” at least partially blinds you to the alternatives, and makes nearly every separation look like a legal problem.
What if you had decided to mediate?
Mediation is another option that can keep you out of court. You can have all the legal advice you want in both mediation and collaboration, but you are likely to find that your non-legal worries are the most significant. In mediation and collaboration you will be an active decision-maker and you will have the chance to discuss what you think is important, not just what is seen as important by “the law”.
Above all, when you take up one of the alternatives to staying away from the court system, you are able to build or recover common ground and actively avoid destructive conflict. That really will allow you to preserve your health, your wealth and your family.
In the minority of cases, where there are issues of urgency or safety or a former partner simply won’t engage in discussion, the traditional court system is currently the best option. But for the many other cases that are settled when a judge is short of time, something has failed to go right about the choice of process. Maybe that’s a lack of knowledge about options where courts are not involved? Maybe it’s because, in a place of fear and anger, people wrongly believe that an attacking approach, or one that leaves attack open to them, is the best option? Whatever the reasons that courts are still the backstop for separating couples, the reality of limited court resources and excessive judicial workload are reasons to look at more whole and creative ways for families and couples to move through their separation.
However you look at it, a judge’s day and the day of people in urgent need of the judge’s help, will always be made better with less fruit flying around.