Paved with Good Intentions

As in, the road to hell is paved with…

I’ll open this with an apology: I am aware that there are good and idealistic people who have invested time, energy and thought into the new law forcing people in family conflicts to take a long time – over nine weeks – to explore Alternate Dispute Resolution (ADR). Despite the good intentions of these good people, what springs to my mind is that John Lennon (think: Imagine) has met the Emperor’s New Clothes. So sorry, I for one am wishing this new law would just go away.

In Hebrew the law is:

החוק להסדר התדיינות בסכסוכי משפחה (הוראת שעה), תשע”ד-2014

A rough translation: The Law for the Settlement of Litigation in Family Conflicts (Provisional Order),  5774-2014.

In the closing days of this last Knesset – since we head for new elections March 17, 2015 – our lawmakers (actually, just 9 out of 120 Members of Knesset were there for the actual vote) – saw fit to actually prohibit people from litigating family disputes without first spending over two months exploring options to litigation.

As family conflicts becoming increasingly difficult, far more intense and entrenched, rather than invest the resources necessary to deal with high conflict, a kind of hope addiction seems to have infiltrated some of the movers and shakers in the world of family law in Israel. I can’t be part of the choir singing praise for this law; I have a sinking feeling that it’s a law filled with pitfalls which will leave the weak weaker, and exacerbate the failure of the system to adequately address the issue of high conflict families.

Don’t get me wrong, I’m all for alternate dispute resolution – under the right circumstances. I’m a mediator, collaborative divorce practitioner and I encourage clients to reach good agreements that will allow them to move on with their lives rather than spend their time and money using the law to take revenge. I like to think that no judge or client will ever say that I litigated without cause.

However, courts have a critical role to play, particularly in dealing with high-conflict couples, couples where there is emotional and financial abuse, unhealthy parental gate-keeping, and disparity in control of and knowledge of the finances. Properly timed filing of a lawsuit can be the very trigger which changes the power relations, and allows for serious negotiations to take place.

Now we have a sweeping law which diminishes the autonomy out of the individual, individuals who may have had their autonomy seriously limited or derailed by their intimate partner.

After that little rant, what’s the law?

It’s a short law, just 9 articles, and the procedural rules have yet to be written (my own hope addict admission: I’m hoping that there is a delay in writing the rules, so that there will be a delay in implementing the law). Despite its brevity, it’s a convoluted law, leaves more questions unanswered than answered and is filled with ambiguities which no doubt will be speedily exploited, thereby further clogging up the system. I’m not going to enter into a legal critique of the law, which is beyond the scope of this post, but give an overview.

Very simply, under the new law a person who wants to file a suit in a family dispute, may not do so, but must first file a “Petition to Resolve a Conflict” to the court, which will then be referred to the support unit affiliated with the court, staffed primarily by social workers, and usually one lawyer and a psychologist.

Over a period of 45 days the parties must have four meetings at the support unit, and this period may be extended by another 15 days. During these meetings, the staff at the support unit is to give the parties information regarding options available for resolving their conflict, and to inform them of the ramifications and consequences of each of the paths open to them, including litigation. Ten days after the end of this period, the support unit then gives recommendations as to the path this family should take for resolving their conflict.

Let me just pause here to say that when the law says “court” it means the Family Court system, as well as religious (Muslim, Christian, Druze and Jewish) courts authorized by law to adjudicate some family conflicts. As such, the new law has thrown a wrench in decades of legislation and Supreme Court rulings which effectively diminished the destructive impact of what’s known as the ‘race for jurisdiction’ in the Israeli family law system. Now, for reasons beyond the scope of this brief survey, there is concern, primarily among representatives of women’s organizations, that at as a result of this new law, the unhealthy phoenix known as “the race for jurisdictions” which now will rise from the “mostly dead”.

In addition, it appears the law gives an inordinate amount of power to the workers of the support unit to explain to families the ramifications of whichever path they take. It’s difficult to avoid the conclusion that to some extent or another, people who are neither trained nor qualified as lawyers will be giving legal advice to family members.

During this 9 week interim period, one may file for emergency petitions so that one party doesn’t make off with assets, and in theory, temporary child support must also be ensured. However, when applying for these emergency measures, one is not allowed to get into details/background of the conflict, just to keep things short and sweet. If someone can tell me how I can justify a lien on someone’s assets – an infringement on their constitutional property rights – without describing a pattern of behavior and the grounds for my reasonable belief that they will move assets – I’ll be happy to hear from them.

Why do I say, the Emperor’s new clothes? Frankly, the chatter of excitement I hear around this new law make me nervous. In the Knesset committee drafting the law, there was actually an extremely reasonable suggestion made by the representative from the Rackman Center for the Advancement of the Status of Women to run a pilot project of the law in one Family Court before enacting far-reaching legislation. From the proceedings of the committee it appears that no one even seriously considered her proposal.

I’m wondering where people are putting their critical faculties; some of the responses I’m seeing of the new law, are so unequivocally enthusiastic that it makes me wonder. Can this really be the greatest thing to happen to family law, will all those high conflict families now resolve their conflicts peacefully, as we usher in an era of peace, love and brotherhood? Is this law all it will take so that people will no longer pull one another apart and damage their children in the process?

Here’s what I am afraid is going to happen, and I’d be happy to be wrong:

People who have been in abusive relationships are going to be further dissempowered by the legal process. I’ve had clients who went voluntarily to the support unit attached to the court, and came out feeling that in one meeting, not a series of meetings over nine (!) weeks, they were once again subject to the manipulative, often charismatic, problematic partner taking over the discussion, dictating the agenda. Once again causing them to cower, neither allowed to voice their needs nor to stake a claim – just a meeting in which the same old narratives were used to bash.

Let’s take a situation where there isn’t necessarily physical violence, but there is emotional abuse and the woman (this is not necessarily gender-specific; though most of the people I represent in emotionally abusive relationships are women, I have also represented men who are the victims in these relationships) needs to leave the house as soon as possible. Every day under the same roof is destroying her, and impacting the children negatively. In general, I would run to file a suit for custody which would put into place the process for changing the child’s residence. Now, there is nothing I can do.

Or, consider a situation in which one spouse has total control and knowledge over what’s going on with the family assets, perhaps a family business. In the time it takes to get past the procedures established in the new law, lots of damage can be done. It doesn’t really matter that the law dictates that assets should not be touched, anyone in the field knows that it’s easier to prevent assets being moved around than to restore the status quo ante.

Or, take the case of malevolent parental gatekeeping or alienation in which, as anyone who has dealt with these cases knows, the problematic parent is generally not even capable of recognizing and acknowledging what they are doing to their children and to the other parent. These are cases which demand immediate and forceful judicial intervention (which happens rarely enough in any case) and instead, we are delaying any meaningful intervention.

I fear for the weaker parties, and I wonder at the feminists in the Knesset and members of the legislative committee who were among the cheerleaders for the law. It’s difficult to escape the impression that they checked their feminism at the door in the hopes of bringing us closer to John Lennon’s – imaginary – utopia, as they sought to push this legislation through. They certainly weren’t thinking of many of the women I represent, women for whom I truly fear today.

Emotional abuse is often far more damaging, and far more difficult to identify and acknowledge than physical abuse. Even among social workers who are supposed to be trained to identify it, I find myself engaged in an ongoing struggle to have the existence of the emotional abuse acknowledged and its consequences recognized. Is this same woman now supposed to sit over a period of weeks in a forum which is not appropriate for her?

In addition, the law actually diminishes the role of the lawyer as a problem-solver. Cynics out there may say that family law lawyers don’t solve problems in any case, but research in the United States has shown the cynics wrong. Research has shown that indeed the majority of family law lawyers are committed to solving problems which would allow their clients to move on with their lives.

More than this, the law is paternalist and undermines the autonomy of the individual. There is sufficient information for the public regarding ways of resolving disputes without litigation, and people should have the right to choose the path they feel suits them best, whether mediation, collaborative divorce, or by working with lawyers committed to finding speedy solutions. In any case, Family Courts in Israel tend to refer litigants to the support units attached to the court, as part of a process which is absolutely voluntary. People should have a basic right to make that their choice.

Sure, there are people who make litigation hell, but those same people will know how to inflict the maximum amount of pain possible during the period of time when the family is not allowed, by law, to go to court.

Let’s be honest – the system is overworked, and there are some very good judges out there, trying to do good and serious work, but there simply aren’t enough of them. Rather than find the budget to appoint more judges, a less expensive “solution” has been found, one which will weaken the weak and clog up the system. It may work well for some families, and I hope that it does; however, those cases which bog down the system – the high conflict families, and the individuals addicted to litigation – will further bog down the system, since the need to go through the motions of weeks of basically convincing the parties to solve the problem outside of court will create deeply entrenched problems which judges will then need to unravel.

I shudder to think what the emotional – and financial – cost will be to those who are forced to tread this path, against their will and against their best interests.

 

 

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3 Responses to Paved with Good Intentions

  1. Pingback: Another Point of View | The Missing Peace

  2. Ron Kedem says:

    It is time that the state will implement the research findings of Kahneman and Tversky about the lack of rationality of human decision-making, especially when involving very emotional situations. By choosing mediation an Collaborative process the family can create a new form of healthy family life even after separating homes. Children will be more protected.
    Well done to those who initiated and promoted the law and who values ​​family and human dignity are important to. Dr. Ron Kedem

    • shaananlaw says:

      Ron, thanks for your thoughtful response.

      However, if I understand correctly, the research of Kahaneman and Tversky actually support my argument. The new law is hopeful that we can force people to make rational decisions, when in fact, much of what goes on around divorce proceedings is driven by apparently “irrational” considerations. We constantly see behavior driven by the desire for revenge, a misconstrued sense of honor and the like. Often it is only by bringing the less “rational” partner before a judge – and quickly – that we are able to get things on track.

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