How has Israel, a place of ancient cultures and religions, reduced its divorce litigation by approximately 50% in just a couple of years?
When Israel was founded in 1948, divorce was the exclusive domain of religious courts for couples of Jewish, Christian, and Muslim faiths. As religious divorce generally depends upon the husband “liberating the wife”, if a wife refuses to accept her husband's divorce terms, the dispute will generally be heard at the religious court of the couple's religious faith. In the religious courts, there must be a “finding of fault” with the issues of homosexuality, guilt, and betrayal often precluding one spouse from acquiring an equal share of the marital property.
In addition to the religious courts, Israel has a parallel civil family court system governing the issues of support and the division of property for spouses of different religions or spouses that prefer a no-fault approach similar to no-fault in the United States. As a result, the selection of either the religious court or the civil family court system has created a competition between the spouses to file in the court of their first choice. In other words, the spouse who manages to file the family law action first in the religious or the civil courthouse of their choice controls the process. This is called “the Race to the Authorities”.
The passage of a new Israeli law has changed the default in the divorce process. With the introduction of Collaborative Divorce into Israel in 2008, and the growth of 20 associations and interdisciplinary working groups of trained collaborative professionals, Collaborative Divorce and alternative divorce resolution has taken hold in Israel.
Studies conducted in Israel have demonstrated that family law litigation causes severe effects upon the emotional state of children which deteriorates as the divorce proceedings lengthen. On the other hand, there is a general consensus among Israeli mental health researchers that negotiation and reaching an agreement outside the court is usually the best way to maintain a proper relationship between parents and their children. Based upon this understanding, the new law in Israel was drafted in order to reduce the need for conducting legal proceedings.
How does this new law work? It is not a mandatory mediation, but a mandatory “time out”, during which husband and wife are prevented from filing further lawsuits against each other. Instead, the spouses are invited to a joint meeting with a social worker in the Family Support Unit. At the meetings, the couple is given information on the implications of fighting it out in court, and its effects on them and their children. They are taught other ways to resolve their legal proceedings outside the court through different alternative dispute resolution processes. They also discuss how to cope with the difficulties of their family crisis which is being caused by the divorce.
This mandatory procedure directs the parties into talking with each other without the pressure of ongoing legal proceedings and with the help of the professional mediator/social worker from the Family Support unit. Together they have an exploratory meeting to examine and evaluate the possibility of negotiations. And once the discussion gets underway, the parties experience movement from intense conflict to solvable resolution. The conversations are meant to give the couple hope that dialogue between them will help them to reach a future agreement.
As a result of the required conversations and the time-out from litigation, there has been an increase in divorce settlements, with lawyers learning to negotiate more than ever before. The new law has expanded the lawyer's toolbox and has improved the services that can be offered to clients as litigation has been substantially reduced in Israel in just a couple of years by almost 50%.
Happily, with Israel joining the other nations of the world that employ Collaborative Practice, and by being a member of the IACP (the International Academy of Collaborative Practitioners), Israeli practitioners were inspired to change the legal default in their country from the survival response of “fight or flight” to a divorce process which postpones the submission of the divorce during a mandatory time-out period. This time out enables the parties to calm down and to talk, time to think, and increases the opportunities to reach an agreement. It is the opposite of the “Race to the Authorities”. By changing the legal default, couples in Israeli are learning that making informed decisions about conflict management can be true freedom and a winner for their family.