Monday, October 8, 2007

Litigation as therapy

Thanks to the Florida Divorce Blog for its post, Law as Therapy, which lead me to the original article Legal Proceedings can be Therapeutic, UA Researcher Finds. While not explicitly about family law, the full article does have some interesting points that can be applied to family law.

Wexler said five key developments have surfaced since therapeutic jurisprudence was first explored:

  1. The theory began in mental health law, but has since moved into other areas, such as family practice and criminal law and, in fact, “across the legal spectrum,” Wexler says.
  2. In effect, therapeutic jurisprudence is now more interdisciplinary and presents the marriage between law and psychology as complementary, not “two disciplines in an adversarial posture.” Also, other disciplines have become increasingly engaged, such as criminal justice, public health, social work and anthropology.
  3. Therapeutic jurisprudence has moved from theory to practice, with much interest expressed by judges and lawyers.
  4. The practice has taken off internationally in areas such as Australia, Canada, Israel and Pakistan.
  5. Also, higher education institutions increasingly have begun offering courses on therapeutic jurisprudence, as well as legal clinics that offer training in the practice.

“When I wrote the paper I said law should be the law in action, not just the law in the books,” Wexler says. “It should not just be about how the law is written, but how it is administered and how people get around and operate it.”

I feel certain that many of the family law judges do attempt to reach some of these therapeutic jurisprudence goals. Some of the cack-handed means of reaching these goals are due to the limitations of the system. Our education and ethical rules push towards an adversarial model. However, those practicing family law recognize the limits of applying a purely adversarial system like we see in criminal trials or in suits for money to the family law system. Those limitations appear most starkly in those cases involving children. On the other hand, attorneys must follow their clients' desires or stop representing those clients. Those clients expecting and wanting war being waged upon their spouse create a market for lawyers who are willing to play Rambo in family law cases. Such are the limitations I see on our family law system treating the cause rather than the symptoms: lawyer education, ethical requirements, and client expectations.

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