THE ROLE OF EQUIPOISE IN FAMILY LAW

Abstract

Scholars reviewing family law over the last twenty years have described the field as having undergone a revolution. While true, both scholars and front-line family law advocates 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 (such as role-playing) and some more esoteric (like 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.