Trial by Battle

Before any formalized law, such as the ancient Irish Brehon codes, man simply resolved differences by the club, spear or sword. Later, we evolved to what became known as “Trial by Battle” in the early centuries of the first millennium. This process involved the accuser and the accused facing each other in a formal duel. “It was believed that God would be on the side of the innocent.” Encyclopedia Britannica In fact, if during the brawl the accused killed or caused the accuser to withdraw the charges, then he was acquitted. But as in all things legal, there was a loophole: if he survived the entire day’s combat, he was, likewise, acquitted. How far we have evolved at resolving differences!

For the last 500 plus years, our society has benefited from the court system, which, in the matter of divorce, involves an official acting in the capacity of the giver of law and trier of fact—a judge. But we may have come to the point in the evolution of society where the traditional court, and its centuries’ old system of adversarial law, has been surpassed. The traditional system, involving invasive, public, costly and emotionally damaging acts to resolve marital disputes now seems as barbaric as the feudal form of dispute resolution by the sword.

A change is needed. In fact, the judges will tell you that no one knows the facts in a case better than the parties and their attorneys. This is the usual warm-up talk our family judges give before sending the parties off to mediate, which is mandatory before the court will give our clients here in Jersey a trial date. They are right, of course. A single person sitting for hours, days or even weeks presiding over a trial is not going to fashion a judgment which is better than an agreement worked out between the spouses. This is a given fact, and is due to the reality that marital breakups are too complicated to resolve by just one person. Some issue or issues are likely to be left unresolved or one or both parties will be so upset by the decision, that years of post-judgment litigation is a certainty.

But the change is here, and it is called collaborative law. It presents a better and more dignified way in which to resolve marital disputes, and with the least amount of damaging stress to the family. In fact, this evolved form of dispute resolution has already spread through Canada, Europe and into South West Asia. (BTW: Did you read that the Richie’s were going to collaboration? Actually, I thought that Madonna would have preferred public exposure (ugh!), but she is a mom first and knows that’s not the way to go.) Collaboration is quickly growing as the first choice for dispute resolution among couples, because people realize that this is a common sense way to handle the most sensitive issues we have within our families.

If we litigators, whom have been on the front lines all these years and have witnessed the pain of divorce on all family members, are telling you that the system needs to change, then take our free advice and choose, if you must, a better way to divorce.

BE ADVISED that these comments are not legal opinions and are not to be relied upon as legal advice. If you need legal advice, contact your county bar association; most of which have referral services. If you desire a collaboratively trained and certified attorney, go to http://www.collaborativepractice.com/

© Kevin M. Kilcommons, 2008