When I meet with a client for the first time, I am often – almost always – asked, “well, what are my rights?”
As a collaborative attorney and mediator, I wrestle with that question. On one hand, it is my duty as counselor to help my client have all relevant information necessary for them to make a decision about any agreement. Even as an attorney mediator, I believe an ethical duty to provide clients with neutral information that can help them make informed decisions. However, if I answer that question directly, by laying out for them exactly what they have a ‘right’ to under the law (which is purportedly what the client is asking) then I’ve immediately created a baseline from which all other agreements will be evaluated. This is essentially the approach that many traditionally-oriented family lawyers take: they start from what a court might order, and work backwards from there, trying to get their client something as close to or better than this. This seems fair enough: the client should get at least what a court would give them, or they may as well litigate and get that from a judge.
Yet this approach constructs an immediate problem. In the clients’ head now is a preconceived notion of what they want, based on what a court will give them. Yet what that court’s judgment might have very little to do with what is actually best for the client and their family.
For this reason, I approach this question with the following in mind: the issues that need to be decided in any family law matter are of the most intimate kind – relationships, money, parenting, time. While the state may have some legitimate interest in overseeing some aspects of these parts of peoples’ lives, ultimately the state doesn’t really want to be micromanaging and determining these issues on a day-to-day basis. More importantly, the rights-based approach to fairness measures one person’s life against another, or against an idea of how people should live their lives. Who really wants to have their own life measured against some generic pre-determined idea of how they should be living?
Therefore, I always answer the question about “rights” with questions. I ask clients questions about what is most important to them and what they need. I learn more about what my clients value, and how they make determinations about fairness. I remind my clients that the ‘fairness’ calculus from the Court system is only one measure, one that has been created over time by committees and judges observing families from a distance and coming up with a most-common denominator evaluator. Yet each client is different, each family is different. One of the beautiful things about our country is that we are free to live our lives in the way most meaningful to us. We celebrate this freedom each day. Why would we want to give up this freedom voluntarily?