MILLER COMMISSION TESTIMONY  April 21, 2005
by Linda W. Chodos

            The Matrimonial Commission, also known as the “Miller Commission”
 was appointed by Chief Judge Judith S. Kaye in June, 2004 to review all aspects of matrimonial litigation and to make recommendations for improving the ways in which the courts handle such litigation in both the Supreme Court and the Family Court.   During the years 2004 –2005, hearings involving testimony from the bench and bar and from the general public were held in major cities throughout the State.  On April 21, 2005, Buffalo was the site of one of the final hearings.
            Linda W. Chodos, Esq., co-chair of the BAEC’s Alternative Dispute Resolution Committee, gave the following testimony on the benefits of Mediation and Collaborative Family Law in resolving matrimonial and family cases.
 
            Several months ago, I accompanied my elderly aunt to the emergency room of a local hospital.   She was placed on the traditional gurney bed with only a thin curtain between her and the person on the gurney a few feet away.  That person turned out to be a seventeen year old high school student who was brought to the hospital after overdosing on some strong medications.  I didn’t mean to eavesdrop on his life, but there was only a thin piece of cloth between us and I became an unwitting witness to his life.  I am sharing this information with you  today because it drove home to me once again how destructive and self defeating our adversarial legal system can be to the innocent and helpless bystanders in our lives, our children.   We need to ask ourselves this question: What, as members of the bench and bar, can we do to prevent the children of divorce from becoming the unintended victims of Collateral Damage?

            I heard the doctor interview the boy in the next bed.  He asked “did you do this to yourself?”  I was glad to have the curtain between us for I could only imagine the horror of what the doctor had seen.  The boy answered “yes”.  The doctor asked “have you done that to yourself before?”  Again, the boy answered “yes”.  The doctor asked “why?”  The boy said “so I would know I am alive.”

            They went on to talk about the overdose.  The boy denied wanting to die.  The doctor remained matter of fact and non-judgmental throughout and the boy opened up his heart.  He told the doctor he could not talk with his parents because of the anger between them.  They were divorced and rarely spoke to each other.  They clearly did not talk with the boy.  They were stuck in their own matrimonial muck.  It was a sad story; but not a rare one.  That boy may not be able to tell his story, but I can and I am telling his story to you today in the hope that it will somehow impact the future practice of matrimonial law.

Collaborative Family Law

           No doubt, this body has heard much about the benefits of Mediation and collaboration as it has gathered testimony from lawyers, social workers and end users of services around the state.  The body of outcome based research comparing cases that were mediated as against those that were litigated, is still sparse.  However, those studies that have been published, consistently demonstrate that when the alternative process of Mediation is used, settlement rates are increased, joint or shared parenting agreements are the norm, expenses to the parties and to the judicial system are lessened and compliance with settlements is higher.  These results are not surprising.
What may be surprising however, are results that show that mediated divorce agreements do not necessarily result in payment of higher rates of child support, nor do they result in the primary parent receiving a greater share in the equitable distribution of marital property, nor, contrary to the thinking of some critics of mediated agreements, do these settlements disenfranchise the lower wage-earning spouse. 

           What then is the advantage to the parties of mediated or collaboratively reached settlements?  The answer lies in the data regarding compliance and self-reported satisfaction.  Satisfaction levels are significantly higher for parties who make their own settlement decisions.  Higher satisfaction levels lead parties to remain committed to an agreement they themselves were responsible for making.  Data suggests that parties who directly participate in the settlement process are more likely to go beyond their original financial commitments by willingly and voluntarily assuming responsibility for additional, non-essential child-related expenses, including a greater willingness to finance at least in part, the children’s college expenses. 

           The common element in the reporting of higher levels of satisfaction with the process seems inextricably related to the experience of “being heard, or having been listened to.”  Ironically, nothing in the black letter law can provide this experience to parties in conflict, yet it is critical that parties feel they have been heard and understood in order to instill the belief that justice has been well served.
The traditional understanding of the justice system as a place where truth wins out in the crucible of adversarial interrogation, entirely ignores the concept of party satisfaction.  A contest structured as win-lose, can at best, only succeed 50% of the time.  These are poor odds when for the best interest of the children, the parties need to preserve a satisfactory relationship in the future.  It is time for us to re-evaluate the processes by which we can foster a sense of justice in the public.  It is time for us to be more creative and expansive.  It is time for us to encourage the judicial system to provide incentives to the parties to take control of their own lives.

Enter Mediation and Collaborative Law

           It is hoped that this commission has been convinced by the testimony before it that creative alternatives such as Mediation and Collaborative Law should be encouraged by the Courts, by the bar and by the State legislature.

            As one of the few practitioners in our area who has been able to work as a Collaborative Lawyer, I wish to share a little of my personal experience in this practice with the Commission.  I find Collaborative Law the most rewarding part of my practice for the following reasons.  Collaborative practice enables me to combine the skills I apply in Mediation: that is, communication techniques to target the parties’ underlying needs and interests with the unique perspective I have as a matrimonial lawyer to counsel, advise and problem solve with my client.  It also permits me the unique opportunity to work closely and towards the same end as the other attorney in the case. This model allows me to fulfill my role as a party’s attorney in the true sense of “counselor at law.”  As a Collaborative Lawyer, I am truly an advocate for the best interest of my client.  This involves focusing my client and myself on the reality that for my client to achieve the best possible outcome, he or she must keep in mind what is best for the whole.  It is in effect, a systems approach wherein the system is the nuclear or extended family, or in the case where the parties have no children, the system may be the relationship itself, which has been allowed to come to a constructive end with appropriate closure.

            It is never best for a family with children to have parents that hold deep animosity towards each other, one they will carry far into the future.  It is never best for young children to live with the constant tension and fear of showing preference for one parent over the other, to be forced to second-guess the impact of their acts of affection towards one parent on the other parent.  It is never best for grown children to feel compelled to plan their own family events so as to keep their parents apart or otherwise pacified.  Unfortunately, these kinds of dilemmas are commonplace fallout for children of divorced parents.

            It is always best for children to observe their parents acting with respect towards each other.  It is always best for children to feel free to express their affection for one parent in front of the other parent.  It is always best for the children to be the children and the parents to be the parents and caretakers, and to keep the roles clear and unambiguous.

            These goals are rarely achieved following a traditional, contested divorce.
without a lot of time having passed and behavior modification having been accomplished.  In contrast, parties to both Mediation and Collaborative Law most often complete the process having learned new and more effective communication skills and most importantly, they can walk away with a feeling of  self respect and independence because they have been able to work their way through adversity while maintaining an attitude of mutual respect towards the other party.

            Not many matrimonial attorneys talk about their practice as being fun.  In Collaborative Law, I have found that in spite of the challenges of working with people experiencing pain and sorrow, we can sometimes see the lighter side.  At times, we even laugh together, which is a sure sign the clients are starting on the path towards healing their wounds.  Fun for me as an attorney is in the challenge of being part of the team.  The team consists of the two parties and  the two attorneys.  We face the challenges together, trusting that we are all working towards the same goal and with the confidence that together we have the internal resources to reach that goal.  The synergy thus created by having four people working together creates a whole that can only result in more than the sum of its parts.

            Not all matrimonial cases are appropriate for the alternative processes of Mediation and Collaborative Law.  For those cases that cannot use these models, the matrimonial attorneys can still be encouraged to shift their perspective.  They can learn not to give in to a client’s need for revenge, and instead to provide a cool head for the client, to assist him or her in developing realistic expectations, to appeal to the client’s higher sense of justice and to work towards empowering the client towards positive personal growth. 

            In closing, I ask this Commission to support the more humane methods of achieving matrimonial equity in divorce matters and for the sake of us all, to discourage the adversarial climate that leaves our children isolated and crying out for help while lying on a cold gurney in the emergency room.