If the only tool someone has is a hammer, pretty soon everything starts to look like a nail.
A hammer is too often the only tool divorcing parents are given in Utah, say members of a special ad hoc committee assigned to offer lawmakers alternative ways to settle high-conflict, court-clogging divorce cases.
Mediation should not only be an option, it should be made a statewide rule, mediator and committee member Brian Florence said Tuesday.
Florence cited a new and first-of-its-kind study in Colorado that showed noncustodial parent involvement and children's success is much higher in mediated cases than in litigated cases.
The study is the first truly empirical study showing the benefits of mediation over litigation in the effects on families, Florence said.
Even though some couples come to mediation believing it's going to be a waste of time, most find out they have a voice, can work together, work out co-parenting and see how their own grief about the break-up causes anger, he said.
Rep. Scott Daniels, D-Salt Lake, a committee member, attorney and former judge, said mediation offers couples alternatives without the implied conflict of the courts.
"Doctors have the saying at least do no damage," Daniels said. "We're causing damage from the outset by running them through a process where they are bound to inflict harm on each other."
Sen. Gregory Bell, R-Farmington, asked why if mediation is successful, why doesn't the law profession itself push for it.
Committee chairwoman Lori Nelson, an attorney, said many attorneys respond that they went to law school to litigate cases, not work out settlements.
Other committee members said they can't ignore the fact that there are attorneys out there who practice and are hired on the reputation that they are as mean as a junkyard dog.
Everybody says they want to be fair and do what's in the best interest of their children, but how those intentions play out can be very different and many end up wanting to use what is only permitted by law as the ultimate yardstick, said Jill Sanders, a committee member and a custody evaluator.
Some states are forcing people to sign a paper saying they will do what's best for the children and they realize they aren't going to get everything they want, Sanders said.
People also need to realize that by going to court, there is a clear chance in every case that one or the other parent is going to lose, Nelson said.
The committee will finalize by next month recommendations to the Legislature on mediation, parent time laws and the growing legal questions surrounding social versus biological fathers.