Believe it or not, Judges are Human. [Empowering litigants to make their own decisions

Recently during a marital dissolution mediation in Walnut Creek, CA, the parties were at an apparent impasse over a difficult issue; one or the other party crossed their arms over their chest and make the pronouncement, “we’ll just have to let the judge decide”.

When I hear those words I know that I have a pretty good chance of getting that party to reconsider their inflexible position, move towards resolution and manage their dispute.

I like to tell the party who has apparently given up on the mediation process that over the years I have had the pleasure of knowing a good number of the family law Judges professionally and personally. I have a deep respect for their learning, wisdom and abilities in performing a difficult and stressful job. I also tell them that there isn’t a single Judge who claims to be able to gaze into the sole of a witness and know with absolute certainty who is telling the truth and who is lying. Likewise I have never seen a one of them reach under their robe and pull out a crystal ball to show them which decision is truly in the best interest of a family going through a marital dissolution.

The truth of the matter is that a typical family law judge is overworked and under supported. The dockets are full, the caseload is enormous and the amount of time a judge is realistically going to have to get familiar with the details of any particular case is sorely disproportional to the gravity of the decisions that he or she is forced to issue.

When parties to a divorce stand before a judge and request a decision on property issues, it is another way of saying, “even though we’re adults, we are incapable of jointly making decisions on how we are going to divide the stuff we accumulated when we loved each other and we need someone to decide for us.”

Sure, there are sophisticated legal issues of property characterization and distribution that may require adjudication and that decision should possibly be tested on appeal. But for the most part, such opportunities to make or test decisional law are quite rare. And of course, the associated property has to be of sufficient value to justify the expense and umbrage. A coalescing of circumstances that is for many marital households, simply never going to occur. The great majority of marital dissolutions should present no property characterization or distribution issues that are actually worthy of a judge’s attention.

Standing before a judge asking for a decision on a property issue that isn’t really kind of spectacular ought to be a source of embarrassment. Standing before a judge asking for a decision on how to raise one’s children is, if one thinks about it, really quite tragic.

During my caucus with the party that has evoked the, “let’s tell it to the judge” strategy, I like to ask what attributes and characteristics they look for in a judge? It is interesting, and a tribute to the respect enjoyed by the judiciary, that many people relate a list of traits usually only associated with Mother Teresa and Albert Schweitzer.

An equally large percentage will indicate that they don’t care about the individual judge and are just willing to “role the dice” and see what happens. The people who express this position are hard put to explain why it would be better to spend thousands of dollars from the marital estate for the opportunity to simply take a chance. It is far better to achieve a compromise, even if the compromise entails sacrifice, then to pay much more money and obtain a result that is not of one’s own creation.

As to the group that is enthralled with their perception of an “all-knowing” judiciary, it is not too hard to gently shake their conception. Judges get divorced, Judges have estranged children, and Judges make decisions they regret just like everyone else. If one thinks about it, the fact that the Judge is only human and will have precious little time to consider what is in the best interest for this family’s future, there is a compelling argument to work harder and together forge a resolution of your own creation.

The last thought that I like to leave the parties with is one of my favorite quotes from one of history’s great planners. Dwight D. Eisenhower, when he was the Supreme Commander of the Allied Expeditionary Force in Europe, said. “Plans are nothing, planning is everything.” No plan should be carved in stone, the parties must learn that things will happen and circumstances will change. The planning skills that they have learned, and will continue to develop, must be brought to bear to create a revised plan for dealing with whatever the future holds for their family.