Before I get into this post, let me begin with a few underlying thoughts:

(1) Families come in all shapes and sizes.

(2) Families are always complex (even if they look like “Leave It To Beaver” on the surface — actually, those families are usually the worst when it comes to complexity).

(2) American society has changed, not just rapidly, but at warp speed, in the past thirty years. The basic building block of this society - the family - has changed right along with all the other social changes brought about by a faster and freer flow of information.

(3) The law in any of its forms — judicial, legislative or executive — hasn’t kept pace with the changes. In fact, those working within the legal arena in any of the three governmental branches are usually the slowest to identify, understand or to implement change.

(4) There is no “one-size-fits-all” approach to resolving family disputes. Decision-making demands time-consuming attention and a willingness to empathize with the messiness of family conflict.

Now that I’ve gotten that out of the way, I’ll get to the point of this post:

Litigation is not a dirty word in resolving family disputes.

But you’d think it was, to talk to many, many family law professionals.

I have to tell you, litigation is not my favorite way to resolve disputes. It is hard, hard work. It is stressful and unhealthy for me, my clients, the opposing party and most of all, the children. I probably do two trials a year, maximum, carrying a pretty good load of clients. Most of my cases are resolved using lawyer-assisted mediation. I really like working out family disputes with this tool, but it’s not the only one. Too many family law professionals will tell you that family dispute resolution has no place in the courtroom.

Here are some reasons why litigation has to remain an option for troubled families:

Some families have nowhere else to turn. Family dynamics in American society are in crisis. Bluntly put, there are a lot of crazy folks out there willing to do anything to win, who have not the slightest understanding or willingness to treat their spouses with a basic degree of respect, and who see their kids as a means to an end (did I mention, they want to win at all costs?)

For many of these families, it is absolutely necessary for some larger authority to hand down a decision about what needs to happen. Litigation is sometimes the last and only solution.

Sometimes, peace comes at a price too high for the interests of those who have to pay it. Sometimes, the only way to put an end to the harmful family dynamic is to use the crude gavel of the judge to stop the madness. I cannot tell you how many times I’ve seen agreements that were nothing more than a band-aid attempt to cover over or reinforce a family situation that is rife with power imbalance.

You don’t make deals with the devil. If you do, for every bit of ground you think you’ve gained by avoiding direct identification and confrontation of the problem, you lose ground later on. If there is a systemic power imbalance in the family, the use of mediation or other non-litigation alternatives to dispute resolution almost never works. Sometimes, it not only perpetuates the problem, it makes it much, much worse.

There aren’t too many family mediators out there who are truly qualified to do the job well. especially when the family is particularly troubled.

Among the most common reasons lawyers become mediators and leave or avoid litigation practice is that it’s easier, less disciplined, and far less intellectually demanding. In short, many have neither the discipline nor the intelligence to do trial work — others are just too lazy to do the hard, hard work of litigating a case that needs to be litigated.

Negotiation and mediation takes a separate skill set, but done correctly, it is as challenging as litigation. The problem is, not many family mediators understand that idea. The absolute best family mediators I know are those who were once accomplished family litigators. They’ve left litigation for a number of reasons (hey, a person can only do this work for so long and stay physically, mentally and emotionally sound), but they did not leave to mediate because it’s easier, or less disciplined or less challenging.

They have such a finely developed ability to discern dysfunction in family dynamics that when a case needs to be in court, they are not afraid to say so.

I’ve said it before and I’ll say it again. Litigation is not a dirty word. It is an honorable and respected means of helping those families who need the court to guide them into a new way of living their lives.

This famous guy, I think it was Pope Paul VI, said it best. “If you want peace, work for justice. If you want justice, work for peace.”