The Role of Equipoise in Family Law

Journal of Law and Family Studies, Forthcoming

U of Colorado Law Legal Studies Research Paper No. 04-11

36 Pages Posted: 11 Apr 2011 Last revised: 15 Dec 2011

Deborah Cantrell

University of Colorado Law School

Date Written: 2011

Abstract

Scholars reviewing family law over the last twenty years have described the field as having undergone a revolution. While true, both scholars and family law on the ground have failed to invent a satisfying end to the revolution. This Article takes up that challenge and offers a novel way forward. It identifies two translation challenges that have prevented the revolution from reaching its end. The first challenge is translating reform so that its benefits accrue equally across all kinds of participants – rich and poor, those with lawyers and those without. The second challenge is translating theory into on-the-ground practices useful to family courts. The Article uses the collaborative law movement as an example of the translation problem of unequal access and distribution, and scholarship on family law and emotions as an example of the translation problem of crafting useful on-the-ground practices. To solve both translation challenges, the Article proposes that courts and court-annexed programs build out practices of equipoise. The Article defines equipoise as a mode of processing information and emotions that disrupts habituated and unhelpful interactions between persons, and instead encourages thoughtful engagement with emotions, resulting in reduced adversarialness and constructive problem solving. It considers examples of equipoise practices, some commonplace (role-playing) and some more esoteric (meditation), and demonstrates how such practices can efficiently and productively be translated into court processes that are available to all family law participants. As a result, the Article demonstrates how to invent a satisfying end to the family law revolution.

Keywords: family law, dispute resolution, pro se, negotiation

Suggested Citation

Cantrell, Deborah, The Role of Equipoise in Family Law (2011). Journal of Law and Family Studies, Forthcoming; U of Colorado Law Legal Studies Research Paper No. 04-11. Available at SSRN: https://ssrn.com/abstract=1805927

Deborah Cantrell (Contact Author)

University of Colorado Law School ( email )

401 UCB
Boulder, CO 80309
United States

Paper statistics

Downloads
89
Rank
236,247
Abstract Views
554