The Traditional Recipe for Resolving Family Disputes

We are all familiar with the traditional and dominant mechanism for resolving conflicts in the United States - the adversarial court experience.  This model was borrowed from aspects of both the English common and Roman civil law systems that had developed over centuries principally to determine competing claims to property interests and to secure inheritance rights that protected and transferred wealth from generation to generation.  Divorce was largely unknown to this body of law.

The success of any modern society depends upon its ability to promote at least the illusion that justice is both accessible and blind:  Laws impose order by promising that people need not resort to violence to ensure that their needs are met and respected in reliable, predictable ways over time.  We romanticize lawyers locked in gladiatorial-like combat as the defenders of the faith when we don't detest them,  and enshrine all-knowing judges who apply obscure rules of evidence and points of law as the vessels of the integrity of governance.  Compared to much of the rest of the world this has all proven to be a great thing - the success of a culture can be measured in the numbers of people who want to join it, as contrasted with those who wish to flee.  

But this is the thing:  The adversary court process that we know did not evolve in response to the needs of people unwinding their property and familial relationships, often in the midst of great confusion and pain.  Divorce is a modern creation, as are the rights of women and children, people of color, same-sex couples, and much more. 

We believe that divorce litigation can be an appropriate intervention but that it is the course of last resort, not the point of beginning, and that Americans naturally assume that it is the best or only alternative.   Many of us have been conditioned to expect this.  For some of us it is useful to think about how age-old paradigms control our lives in unconscious ways, when the reasons that justified those paradigms no longer apply.  My favorite example is this:

Do you know why railroad tracks in this country are exactly 4 feet, 8.5 inches apart? This seems an arbitrary number.

It is because that is the way they were built in England, and English transplants helped design them in the United States. But why were they fixed at this distance in England? Because the tramways that preceded rail lines in England and Europe were designed by the same people who built the trams. They used the same tools and jigs that had previously been used for building wagons, which had the same wheel spacing. Why this wheel spacing? Roads that were many hundreds of years old were fixed at that spacing, and to use any other size would destroy the wagon wheels. The roads were deeply rutted from centuries of use.

Why were the ruts grooved at this distance? Because the roads were built by the Romans for their legions, and in particular war chariots. These chariots that formed the initial ruts, which everyone thereafter had to match in order to not destroy their valuable wooden wheels, were spaced at 4 feet, 8.5 inches.