Early Mediation of Family Law Cases The Adversarial System is Ill-suited to Process Marital Breakups

Honorable Judge Victor Bianchini and Cameron O. Flynn

Judge Bianchini has served continuously as a judge for40 years. He is a retired Superior Court judge with extensive experience in family law. He is currently a mediator and arbitrator with Judicate West in San Diego mediating and arbitrating complex civil and family law cases. He is also a retired U.S. Magistrate Judge on recall to the Eastern District of Washington, the Central District of California, and the Southern District of California on a part-time basis.

Cameron O. Flynn graduated from Washington and Lee University School of Law in 2012. Following that, he worked as a Law Fellow with the Washington & Lee University School of Law. He is currently a Law Fellow with Professor Robin Fretwell Wilson at the University of Illinois, College of Law where he has been actively researching, writing, and editing works on current topics such as same-sex marriage and the Patient Protection and Affordable Care Act.

For those unfortunate enough to experience it, divorce is one of life’s most stressful experiences.¹ Those of us in the legal profession whom are divorcing couples don’t need psychiatrists to tell us this. Indeed, Justice Donald King of the California Court of Appeals once famously said that, "Family law court is where they shoot the survivors." Yet, as family law judges and practitioners, we must remember that we preside over a process considered by many mental health professionals to be a poor way to assist couples through the often painful process known as the Dissolution of Marriage. Our system of laws and statutory processes, however, require the state provide a forum for resolving disputes that the parties cannot settle on their own. Many practitioners defend the legal process as the only way for couples who are otherwise unable to agree on the many issues facing them during the dissolution to end their conflict. Thus, couples who, according to conventional wisdom, are so mired in the pathology of their conflict require a judicial officer to make the decisions they are unable to make themselves.