A Consideration of Alternatives to Divorce Litigation
![handle is hein.journals/unilllr1986 and id is 1129 raw text is: A CONSIDERATION OF
ALTERNATIVES TO DIVORCE
LITIGATION
Thomas E. Carbonneau*
I. INTRODUCTION
Adversarial adjudication, according to popular and some profes-
sional' perceptions, makes the process of divorce excessively expensive,
* Professor of Law and Deputy Director, Eason- Weinmann Center for Comparative Law, Tu-
lane University. Dipldme Supdrieur d'Etudes Francaises 1971, Universitd de Poitiers A.B. 1972, Bow-
doin College; J.D. 1978, M.. 1979, University of Virginia; M.A. 1979, Oxford University; LL.M.
1979, J.S.D. 1984, Columbia University. Special thanks are in order for Professors Robert Levy (Min-
nesota) and Walter Wadlington (Virginia) for their reading of the manuscript. The author wishes to
express his sincere gratitude to Professors Couch (Tulane), Jourdan (Georgia), Lorio (Loyola), Samuel
(Tulane), and Wilner (Georgia), and to Betsey Backe, M.S., Dudley D. Flanders, Esq. and Terry A.
O'Neil Esq. who read the article in manuscript form and made valuable suggestions for its improve-
ment. Recognition also is in order for my student assistants who labored in this endeavor: Marjorie
Esman, Charlsey Juen, and Nancy Schoenberg. The author, of course, remains exclusively responsible
for any balourdises.
1. The advocacy of remedial innovation represents a growing ferment that challenges the
traditional status of the court system as the chief vehicle for dispensing justice. The obligation of
our profession is... to serve as healers of human conflicts. Address by Chief Justice Burger, ABA
Midyear Meeting (Jan. 24, 1982), reprinted in 68 A.B.A. J. 274, 274 (1982). See also State of the
Judiciary Address by Chief Justice Burger, reprinted in 109 N.J.L.J., Feb. 4, 1984, at 1, col. 4.
Envisaging dispute resolution from the perspective of conflict management, proponents of substitute
processes generally see the histrionics of litigation and lawyering as an impediment to the effective
brokering of disputes. See M. DEUTSCH, THE RESOLUTION OF CONFLICT (1973); R. FISHER & W.
URY, GETTING TO YES (1981); J. HIMEs, CONFLICT AND CONFLICT MANAGEMENT (1980); Eisen-
berg, The Bargain Principle and Its Limits, 95 HARV. L. REV. 741 (1982); Eisenberg, Private Order-
ing Through Negotiation: Dispute Settlement and Rulemaking, 89 HARV. L. REV. 637 (1976);
Mnookin & Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 YALE L.J.
950 (1979); Thensted, Litigation and Less: The Negotiation Alternative, 59 TUL. L. REV. 76 (1984).
The current literature on alternative dispute resolution has, quite literally, exploded to unman-
ageable proportions. [T]he search for alternative methods of resolving disputes has burgeoned to 'a
movement.' Davidson & Ray, Preface to ALTERNATIVE MEANS OF FAMILY DISPUTE RESOLU-
TION (H. Davidson, L. Ray & R. Horowitz eds. 1982). Given the veritable explosion of writing in
this area, the following list of sources is not exhaustive, but rather illustrative of the major references
in the area. The sources are organized according to subject matter headings. The literature is of
uneven quality.
The following sources contain general discussions of alternative dispute resolution. The Grow-
ing Field ofAlternative Dispute Resolution, 7 AM. ARB. Assoc. LAW. ARB. LETTER 4-7 (No. 4 Dec.
1983); J. FOLBERG & A. TAYLOR, MEDIATION: A COMPREHENSIVE GUIDE TO RESOLVING CON-
FLICTS WITHOUT LITIGATION 4, 4-7 (1984), reviewed in 84 MICH. L. REV. 1036 (1986); Sander,
Family Mediation: Problems and Prospects, 2 MEDIATION Q. 3, 3-5 (1983); POLITICS OF INFORMAL
JUSTICE (2 vols.) (R. Abel ed. 1981); ARBITRATION AND THE LAW (Arb. Assoc. 1982) (General
Counsel's Annual Report); L. FREEDMAN, LEGISLATION ON DISPUTE RESOLUTION (1984) (A.B.A.
Spec. Comm. on Dispute Resolution Monograph No. 2 1984); Kritzer & Anderson, The Arbitration
Alternative: A Comparative Analysis of Case Processing Time, Disposition Mode, and Cost in the](ViewImageLocal?handle=hein.journals/unilllr1986&div=44&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
A Consideration of Alternatives to Divorce Litigation
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most