Divorce, Custody, Support - the Problem of Access to Justice in Family Law by Lisa Mayfield
It’s odd that not having a lawyer should equate with not having access to justice. But we have an “access to justice” issue in our family law system. Our less than user-friendly divorce process challenges even the most resourceful of unrepresented litigants. Family law cases comprise the largest category where access is seen as a major problem. As many as 70% of people going to court in Oregon about divorce, custody, child support, parenting time (formerly known as “visitation”), and other family-related issues do not have legal representation. Specifically, in 69% of such cases, one or both of the parties is unrepresented.
The numbers of unrepresented litigants would not be an “access” problem, but for the distinctly user-antagonistic divorce process. In Oregon the simplest uncontested divorce takes seven documents that, needless to say, must contain the right stuff. Add children, a residence, a pension plan, other significant property, or any level of disagreement between the parties on any issue, and the complexity, paperwork, and chances of a foul-up increase.
Although sets of documents are available for completion by the self-represented at local courts and online, my impression is that trying to do it yourself is akin to traveling to a foreign country without your Rick Steves—except that you didn’t want to go in the first place, you never watched Globe Trekker: Divorce Court, and no one will interpret for you because unlicensed interpreters are subject to summary execution and licensed ones cost more than the entire budget for your involuntary vacation.
The “access” problem reveals itself in the array of complaints emanating from both inside and outside the courthouse: unrepresented family law litigants expressing frustration and dissatisfaction with the system; family law facilitation programs with too much work and limitations on what they are allowed to do; frustrated judges trying to run their courtrooms and manage their cases with so many laypersons appearing who don’t know court procedure; legal aid programs that cannot begin to serve everyone who cannot afford to hire an attorney. One needn’t be officially “poor” to view the cost of an attorney as prohibitive.
Many great minds are at work fashioning systemic solutions. Perhaps, one day, some clever entrepreneur might introduce “Turbo-Divorce.” In the meantime, there are effective and affordable alternatives to full representation by an attorney.
Mediation By Law-Trained Mediator Mediation of custody and parenting time issues has long been required by, paid for, and overseen by Oregon courts. What many people do not realize is that mediation is available, sometimes at court expense, for disposition of property and financial matters. Private divorce mediation, paid for by the parties, has been around even longer, and is an appealing and appropriate option for many people regardless of the level of conflict or their ability to afford full representation. Family mediators are facilitators trained to provide a structured process for resolving family issues. The object is to help disputing parties generate a settlement that both people can live with and find workable. The parties remain in control of their divorce process. A mediator’s neutrality as to the outcome is the cornerstone of his or her practice and ethical obligations. Mediators who maintain bar licensing but exclusively practice mediation and attorneys who also practice mediation can prepare and file legal documents for parties. These practitioners must comply with minimum continuing legal education requirements, and, although prohibited from providing either individual party with legal advice, can provide much legal information about general rules of law and process. Lawyers acting as mediators are required to encourage parties to consult with individual legal counsel. Attorneys who offer unbundled legal services are available to consult or review mediated settlement agreements. Divorce accomplished through mediation with a law-trained mediator usually costs less and takes less time than adversarial divorce. Some local courts maintain lists of mediators who meet state qualifications for providing court-connected mediation services; these mediators are often available for private mediation. Consulting your telephone directory under “mediation services” and the subheadings “mediation” and “divorce and family law” in the general “attorneys” category is likely to yield the names of law-trained mediators in your area.
Clients from Japan told me that it took one sheet of paper to divorce there. Divorce is complicated here, but if it’s necessary, it can be accomplished in a way that is humane, informed, and affordable.
Lisa Mayfield Stewart is an attorney/mediator and aspiring writer in Salem, Oregon. She can be reached at [email protected].