Lately I have been pondering the Hippocratic Oath, particularly the principle of “first, do no harm.” Hippocrates, an ancient Greek physician, is attributed with this foundational oath of ethics.
As attorneys, while we may not necessarily think in terms of how legal wrangling may hurt people, it is undeniably a profession that is adversarial by design. We have “war rooms” for certain cases. We sit down with colleagues to “war game” thorny issues and develop strategies. I could go on.
As a family law litigator, I have fought all the fights. Emergency motions where children have been hurt, spouses abused. Arguments over spousal support. Child support. Divorce. The house. The collection of special things – cars, artwork, toys. Relocations. Even an XBox. I have fought on motions calendars, in trials, negotiating with opposing counsel, battles of fulminating letters, and in mediation.
But at what cost?
Adversarial Fights Don’t Help Our Clients or their Families
Over the years I have seen families hurt by litigating their separations and divorces. Not because lawyers are wicked, but because of the very system used – one developed by the State to manage everything from the most horrible violent crimes, to negligence and property rights – to dismantle a family.
If the separating or divorcing family doesn’t have kids, they have the luxury of dividing up their assets and going their separate ways.
Families with kids? They don’t have that luxury. This is a family unit that will still exist once the wrangling is over. The parents still have Bobby and Susan to care for and raise. Bobby will have a ballet recital, Susan a soccer practice, and then graduation, and celebrations of all kinds that will bring parents together.
Trial is a scary thing for most folks. They don’t really want to let some well-meaning stranger in a black robe listen to them complain about each other for a few days, lob different expert opinions back and forth about kids and property values, and then have that stranger decide what’s best.
Late Stage Mediation is Not the Only or Best Way
Our local court rules have required litigants in family law cases to engage in alternative dispute resolution before confirming their trial dates. So, we now have a custom of litigating – sometimes hotly and sometimes more calmly – until we have enough information to mediate shortly before trial.
In the landscape of fear and conflict, where we have been fighting sometimes for months, we now ask people to sit down and work something out.
Mediate from the Start and Liberate our Clients
So, back to Hippocrates. What if we gave intentional thought to “do no harm”? What if we flipped the script?
What if we asked our clients at the beginning: where do you see yourself in 5 years? 10? 15? What goals do you have for yourself? For your children?
What if then, we invited the other party to sit down and talk?
And what if we did that with a mediator, right at the beginning, rather than as a last-ditch effort to cut a deal before trial?
To take it further – what if we took trial off the table? What if we liberated clients from that fear and instead took this ending as an opportunity to help our clients learn to manage their own conflict? How to collaborate and cooperate instead of competing?
What if we first, did no harm?
Mediate to Bring Hope to the Process and Build Skills
That’s my plan for my practice. I mediate. I sit down with lawyers and clients – or just clients – and help. Teach. Guide. Referee. My goal is to help families end their marriages in a way that is respectful of what once was and mindful of their best futures.
Can I help with late-stage mediation shortly before trial? Sure. Absolutely. But, I’m talking about leveling up. By the time most late-stage mediations happen, first blood was drawn months ago, and there’s scar tissue. The parties have been fighting for months or years and then they start fighting with professional champions who, by the system’s design, are looking to win the battle.
Let’s instead help our families move away from that trauma and into a process of healing focused on happier futures.
In mediation, I shift the focus from blame and shame to hope. Is it hard? Sure, it can be. It’s very different from family to family. But by mediating from the beginning with a contract that outlines expectations and processes, the parties have a guiding framework to stay on track. With a clearer mindset, people can collaborate rather than compete. Rather than being bound by someone else’s judgment, they decide how to move forward. They define success, based on goals and priorities they create, in a private setting where the family’s unique needs are respected. Outcomes that are best for a family might be unorthodox and unlikely in litigation, but can be negotiated in mediation.
It all adds up to a more peaceful future. With much less harm.
Jennifer Gogert is a family law attorney and mediator and has helped dads and moms, kids, stood up for widows, and held people (and companies) accountable for the hurt they cause to others. Her trial practice focuses on helping injured people recover; resolving probate matters; and assuring vulnerable people are kept safe through guardianships.
Jennifer’s mediation practice focuses on helping people resolve their family law and probate issues in a way that works best for their families. All people deserve to be treated with dignity, particularly when confronted with our justice system. She loves her job. When she is not lawyering or mediating, she enjoys cooking, hiking, and camping with her daughters and husband.
If Jennifer can help you in any way, even just to answer a few questions, please contact her or call 425-259-2222 and set up an appointment to discuss your issues privately, and in depth.