Over the years, I have written a great deal about how our personal biases, beliefs, assumptions, expectations and values shape our worldviews and decision-making, among other things.
"Picking the wrong process and the wrong kind of lawyer(link is external) is like hiring a surgeon when what you need is a few physical therapy sessions."
I could not agree more, and make the exact same point in "The Personality and Philosophy of Attorneys Impact the Results(link is external)".
What I have discovered over the years is that, generally speaking, litigators believe that litigation is the best approach for addressing legal disputes, mediators believe that mediation is the best approach, and collaborative law practitioners believe that collaborative law is the best approach. Moreover, there are different types of mediation and different mediators favor different mediation models and styles.
I'm afraid that these preferences are based upon the personal biases, beliefs, assumptions, expectations and values of any given professional. Furthermore, not all beliefs are fact based, regardless of how sincerely held such beliefs may be.
While it's true that all human beings are biased, these particular biases lead to a great many problems because consumers lack the knowledge and understanding of the different dispute resolution methods available, let alone the different styles within any given method.
One of the unique challenges of paralegal regulation is that, unlike lawyers, paralegals are almost exclusively in what are referred to as 'public facing' areas of law. Most of their clients do not have much business or legal sophistication or an understanding of the legal system. In addition to concerns around paralegal education and training, the Morris Report also notes that a complaints-based disciplinary system shifts the responsibility of protection of the public to members of the public themselves. Unfortunately the public is often not properly positioned to do this as they lack a proper understanding of what is to be expected when securing legal assistance. Family proceedings in Ontario are already unnecessarily complicated, lengthy, and expensive, due to unprofessional conduct by lawyers in the form of incivility."
The parents/litigants don't simply choose an attorney, they entrust their life, livery, and happiness into these 'legal representatives.'"
As I said in my response, I wish I could disagree, but I can't.
"Making lawyers and the public more aware(link is external) of the serious psychological harm to those involved in litigation is a moral obligation of the profession and would likely lessen the harms over time. As attorneys, we each have a moral obligation to know who will be hurt by our actions and a professional obligation to tell our clients of the harm that will likely accompany litigation."
"Professor Daniel W. Shuman points out(link is external) studies showing that delays in the litigation process are a particular cause of psychological harm to litigants."
Irrespective, one of many other things I long ago realized is that people interpret our actions and words in accordance with their personal biases, beliefs, assumptions, expectations and values. As a result, a great many litigators somehow believe that I think that people should never litigate their disputes. However, I have never said any such thing and never would.
Although I no longer litigate and haven't for quite a few years, I acknowledge that litigation is sometimes necessary. However, it should be utilized as a means of last resort and there are different ways of litigating.
Aggressive lawyering is counter-productive(link is external), and when divorcing, don't hire a pitbull attorney: aggressiveness won't help you in court(link is external).
You can effectively litigate without unnecessarily escalating conflict. Furthermore, there are things you can do to deescalate conflict, while still litigating. I oppose prematurely jumping into litigation, unnecessarily escalating conflict in litigation and believe that litigators should try and deescalate conflict, to the extent possible. Is that too much to ask?
As an example, when a parent is denied access to their child, they typically consult with and retain a litigator or pursue litigation on their own. A Request for Order Regarding Child Custody and Visitation or other such motion is then filed with the court and served on the other parent.