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William goldman

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*226 into account the interests of other family members is almost impossible and definitely inappropriate. The rationale for corrective justice must be more flexible and adjusted to the familial circumstances.

Moreover, when individuals enter into the framework of a family relationship, there is an understanding or agreement--if not express, then at least by implication--that not every issue between them ought to be litigated, even if technically a tort has been committed. Not every insult, verbal slight, curse, vulgarity, or even some threat arising from the tensions of daily life should be grounds for suing a family member in tort.94 This provides further support for the idea that the goal of corrective justice is not fully compatible with intrafamilial tort suits.

c. Distributive Justice

Because distributive justice (unlike corrective justice) deals with sectors, it deals with parties other than those immediately related to the tort. Therefore, it is possible that the children who may be harmed from the claim will be considered as weak parties for the sake of distributive justice, and their status will be taken into account when dealing with the claim or deciding to block or to reject it or to refer it to extra-judicial proceedings.95 The familial approach to tort litigation best allows the system to meet this distributive justice goal of considering all relevant parties’ interests.

d. Deterrence

As with the goal of corrective justice, it is also questionable whether the goal of deterrence is totally appropriate in intrafamilial tort litigation. In torts that are caused by pure emotion or impulse, it is not altogether clear that the individual will be deterred by the possibility of the future imposition of tort liability. Nor it is clear that imposing liability would have an effect on potential tortfeasors, particularly since such torts come about from hard-to-control urges or prior disputes. Given that even criminal law lacks the desired deterrent effect on those who are motivated by extreme feelings, it is not clear how tort law might be successful. Even the fear of monetary loss may not be effective when it comes to highly charged or tense disputes. As noted above, there are instances in which the economic *227 approach, inherent in optimal deterrence, may not be appropriate for dealing with spousal disputes, particularly if the spouses are living under the same roof and sharing the housekeeping. Transfer of money from one to the other when the purse is held in common cannot bring about an increase in the aggregate welfare and is therefore meaningless.96

Overall, it is clear that some of the goals of tort law correlate to the justifications for the family approach, whereas others should be interpreted with more flexibility due to the delicate structure of the family and the fact that the lawsuit may influence family members other than just the plaintiff and defendant.

III. The Desirable Situation: Theory and Practice

A. The Proposal: An Intermediate Approach Combining Individualistic and Family Approaches

The discussion in the previous section illustrates that the rationales both for and against acceptance of spousal tort claims are credible. Although weighty arguments were presented on both sides, the central consideration against recognition of spousal torts--family harmony--has contracted over time. As family harmony arguments constricted, the rationales for allowing judicial determination of familial torts based on the individualistic approach have had a greater impact, expanding notions such as individual autonomy, personal rights, and the right to sue in tort.

Thus, we return to the fundamental question of how the judicial system should determine whether to restrict access or to permit judicial intervention in familial tort litigation. Modern law should establish a balance between the family approach and the individualistic approach and should avoid extremes in either direction. Even if a suit in tort could disturb family harmony or could be more harmful than helpful, blanket immunity from litigation is inappropriate.97 *228 When a tort suit is initiated, family harmony has often fully dissipated, and even if some family harmony lingers, the individual’s right to sue should not be ignored--despite the delicate framework of intrafamilial relations. Preservation of the family unit should not be considered such a supreme and noncompensatory value that invocation of family harmony blocks tort claims under all circumstances. Such a claim could be a symptom of a broader dispute between the spouses, and it could also serve as a legitimate tool in a power struggle between the parties. The litigation should be allowed, even if the couple has not yet separated and even if preservation of family harmony is still possible.

By not dealing with tort claims, family law does not provide a response to the physical or psychological harm that is the result of a spouse’s aggressive attitude. It is natural that tort law should step into this vacuum and stop these injuries, mostly non-monetary in nature, from engulfing the overall interspousal dispute. Tort law should evolve with society and break its connection with the rationale for common law immunity by eradicating the treatment of the husband and wife as a single legal entity. As the doctrine breaks away from common law immunity and moves towards the individualistic approach to human rights, a clear change in norms will become necessary. Tortious litigation, while embracing greater autonomy, should retain some function for the rationale of family harmony. The balance between the approaches will be reflected by limitations on blanket acceptance of intrafamilial torts rooted in the family approach’s arguments against recognition of such claims. In other words, the starting point needs to be the individualistic approach’s fundamental recognition of the tort claim, as opposed to its restriction. The limits to such recognition, on substantive and procedural grounds, will derive from the rationales underlying the family approach, primarily the issue of family harmony. The limitations will ensure that recognition of these claims will not become over-inclusive and will not apply to all cases.

Paving a path between the individualistic approach and the family approach requires caution. The intermediate approach needs to identify members of the family unit as individuals who have rights, who may sue one another, and who do not enjoy absolute immunity. At the same time, the approach needs to preserve the perception that the family as a unit should be treated uniquely. There is no significant reason why this approach would not work both in theory and in practice.

*229 Various intermediate approaches have already been presented in other contexts. Bush and Folger present a relational worldview in regard to mediation.98 They hold that an approach that focuses solely on the individual and his separateness is inappropriate. They also find inappropriate the collectivist-communitarian approach--which is similar to our family approach--that emphasizes connection and devotion, because the approach annuls the rights of the individual and overstates the importance of the collective.99 The relational worldview does not reject either of these approaches, but it avoids applying them independently.100 It sees the approach of separateness--in effect, the individualistic approach--as one dimension of a more complex totality, animated by the understanding that human nature does not focus solely on separate personal interests, but also on the reactions and attitudes to the society to which it belongs. According to this worldview, man is simultaneously separate and connected, and to function within society one needs to integrate separateness and belonging.101 Such integration will come about through finding points of contact between the two approaches, each of which is lacking in balance.102

The relational worldview attempts to maintain the dichotomy between the individual and the collective, with all its ambivalence. It seems that this intermediate approach raised by Bush and Folger in regard to mediation is particularly appropriate to civil disputes within the family unit. There is room, under this approach, for tort litigation against a spouse, but there is also room for balance and restriction. On the one hand, a great deal of criticism has been expressed regarding granting rights to the family as a unit, since such rights perpetuate power gaps within the unit (particularly those between strong and weak, with the latter generally meaning women and children).103 Thus, adopting the family approach on its own, without individualistic considerations, may encourage torts within the family unit and allow the tortfeasor, generally the stronger individual, to persist with his tortious acts. On the other hand, it is inadvisable to fully adopt an approach that grants family members full independent rights toward one another, similar to rights between *230 strangers. Family members still share a certain measure of collectivism. As Karst once stated, “‘we’ exist as something beyond ‘you’ and ‘me.”’104 Indeed, some hold that the language of rights, which focuses on the private interests of the members of the family, is not appropriate for family life and may harm the intimacy and love within this unit.105 A common critique of the individualistic approach holds that these rights are less necessary when there is love and an atmosphere of happiness. However, a tort within the family framework would indicate a lack of happiness, and would certainly indicate the need to herald individual rights because of a rift or crisis within the family unit.106 In the end, the truth may be found somewhere in the middle, since even when the family is in crisis, there is a certain importance to the family unit’s harmony. Therefore, when there is a chance of healing the rifts, enforcing a legal remedy against the infringement of an individual right may not be best for the individuals or the family as a whole.

Scholars believe that there is also room for an intermediate worldview when discussing the family. Kagitcibasi recommends a structure that expresses the connection between the individual and the collective. Such a structure would encompass culture, family structure, the values of membership, and the mutual relationships within the family. This structure would be more complex than simply analyzing the individual or the collective alone.107 Minow and Shanely take a similar path; they suggest that members of a family should be viewed as possessing independent rights that are nonetheless inseparable from their family relationships.108

These approaches should be translated into reality in the tort claim context by moving them from the general, declarative level to the specific, practical level. This essay proposes a model that is based on an intermediate approach that is neither absolutely individualistic nor completely based on the family approach. The intermediate *231 theory presented below will be the focus of the proposed solution at the three different stages of tort litigation between spouses. The solution will relate to each of the three phases of the litigation: the preliminary stage, the stage in which an attempt is made to resolve the dispute peacefully after the claim has been submitted, and the trial phase itself. I propose that such litigation not be blocked, based on the individualistic approach. However, I recommend that it be treated delicately, with an attempt to involve extrajudicial solutions in the legal process based on a moderate application of the family approach. The solutions proposed at the various stages will form a theoretical and practical framework for discussing tort litigation between spouses, within which it will be possible to add, at a later stage, more information beyond the scope of the present essay.

The intermediate proposal begins with the individualistic approach, which sees the tort claim as a realization of the right of the individual to sue. The intermediate solution will be formulated by restricting blanket recognition of intrafamilial torts, and by differentiating them from other tort claims. The family approach will limit the individualistic approach in a more moderate way than currently practiced in some American states, in which tort claims are blocked altogether.

B. The Preliminary Stage: Recognition of Tort Claims That Pose No Risk to Family Harmony

Tort litigation between spouses should be permitted when such a suit would in no way harm the family unit. Suits should be permitted, for example, when the legal structure of the suit--with one spouse suing the other--is just a formality, when in reality the claim is intended against a third party, like an insurer or employer.109 Since the intent is to sue a third party, there is no risk to the autonomy of the family. This would be the case, for example, if one spouse negligently injured the other, with no malicious intent, and the family hopes to recover from an insurance company. It would also be the case if any damages caused by the tortfeasor spouse would *232 be paid by that spouse’s employer. In such cases, there is not an actual, direct conflict between family members, despite the legal structure of the suit.110 Such litigation does not lead to the destruction of the family, but rather provides economic aid to the family unit. There is no reason not to allow claims that are only formally against the family member who carried out the tort. Indeed, in this instance, in order to reach the situation in which a third party pays compensation to the spouse, it becomes necessary to hold liable the family member who carried out the tort. But if the interests of the two parties are to win that money from that third party, there is no impingement on family harmony. As noted above, there are still concerns about insurance fraud, but such concerns should not serve as grounds to block spousal tort claims altogether.

Tort claims between spouses should also be accepted when one spouse is deceased, as again there is no risk to family harmony. Claims should be permitted against or by an estate, particularly if doing so does not harm the surviving spouse and children (for example, if the main beneficiaries of the estate are third parties who are not related or who are only distantly related). In this situation there are also very few problems of direct confrontation that may harm the family as a whole, since one or both of the parties to the problematic confrontation are no longer alive, and the claim does not bring other close relatives into conflict.

Litigation between former spouses who are completely separated and have no children should also be permitted, because the family harmony argument would have no significance.

In sum, part of the intermediate approach involves sifting out claims in which the family harmony justification does not apply, such as claims against a third party, an estate, or a former spouse, and fully permitting litigation in such cases.

C. Dispute Resolution: Mandatory Participation in Mediation

1. Handling of Familial Torts

The situations described above, in which family harmony is not at risk, are not the only situation in which tort litigation would be permitted under this intermediate model. There are other situations, which do implicate family harmony, in which a tort may still be filed. In such situations, an intermediate approach would treat such torts *233 differently from non-familial torts. In order to construct an intermediate approach at the stage at which a tort claim against a family member has already been submitted, two assumptions are needed. The first is that the claim should be heard rather than blocked. The second is that the court should play an active role in an attempt to restore harmony and tranquility to the relationship between the parties. The court can restore harmony either through the legal proceedings themselves or by sending the parties to an extrajudicial proceeding. Such a step may have advantages for all kinds of litigation, both from a substantive perspective111 and from the perspective of its effectiveness.112 But it is especially relevant when dealing with family disputes.

Classic claims between spouses are fundamentally different from claims between two strangers, even if they are based on traditional tort grounds. The limitations of the law do not allow the court to uncover the plaintiff’s real desires and to order the real remedy the plaintiff seeks. Although many plaintiffs seek monetary relief when claims are highly charged and emotional and involve an ongoing relationship, a financial reward may not be the only form of relief sought.113 For many plaintiffs, the law serves as a platform for expressing arguments and as a mechanism to obtain remedies such as *234 retribution, punishment, revenge, reconciliation, or regret. The court’s institutional inability to offer the desired remedy means that from the outset, the plaintiff is forced to request the usual remedies provided in tort law, foremost among them being monetary compensation.

In cases where the real remedy sought is something other than compensation and where tort litigation is not suitable for resolving the dispute, there are two potential solutions. One solution is an increased effort by the judges to aid the parties in resolving the dispute by means of a compromise or settlement. However, this option is not always possible; judges cannot work miracles with feuding parties.

Another possible solution is to resolve the dispute through non-judicial means. The judge could send the parties to mediation, counseling, or therapy. Mediation is a process in which the two parties, with the assistance of a neutral mediator, systematically isolate issues within their dispute and create options or consider alternatives that could lead to an agreement that serves the needs of both parties. This is a subjective, reconciliatory process, as opposed to legal proceedings, which are objective processes based on rivalry and abstract laws.114

This solution is adapted here as part of the intermediate approach for handling intrafamilial tort claims. Under the intermediate approach, parties would be forced to go to two sessions of mediation, after which the parties, the mediator, or the judge could request that the claim go back before the judge. This proposal, as well as its theoretical and empirical underpinnings, are described in more detail below.

2. Why Mediation is Appropriate for Intrafamilial Claims

Mediation is designed to be a just, fair, and speedy process of dispute resolution. It typically has several stages: first, the parties present their stories and the mediator assists them in reaching agreement; then the parties submit the agreement to their attorneys and the attorneys formulate the agreement in legal terms for submission to the court; and finally, the court gives the mediation agreement the force of a legal judgment.115

*235 The adversarial approach encourages parties to blame each other, and consequently is less appropriate than mediation for intrafamilial disputes. In instances of domestic violence, the adversarial approach may even exacerbate the violence, making mediation even more appropriate.116 Because the parties are directly involved in mediation, the outcome is based more on their true interests and less on their legal rights. In fact, mediation focuses on the problem, whereas litigation focuses on mutual confrontation. Mediation proceedings help to preserve intrafamilial relationships, without intensifying the rivalry between the parties.117 Unlike the adversarial approach, which focuses on attributing blame for the events of the past, mediation focuses on the future and serves as a source of empowerment for both parties, encouraging them to express their individual needs in order to reach mutual agreement.118 In addition, mediation empowers victims by encouraging them to take an active role in formulating the agreement.119 Furthermore, in mediation, the parties meet voluntarily in the presence of a neutral mediator and in a confidential proceeding. The process encourages mutual agreement through concessions on both sides.120

Mediation may bring to the surface the true desires of the parties, while not limiting them to the remedies provided by legal proceedings. The special non-adversarial ambiance may help generate a solution to the problem, even if it does not lead to lasting domestic harmony. If there are children in the family, termination of the dispute in a reasonable manner may influence them positively. The mediation proceeding also allows recognition of intangible interests, which are often the real motives for the dispute. In the case of a dispute between spouses, mediation thus expands the spectrum of possible solutions. In addition, when the couple participates in creating the solution, they are more likely to reach an optimal solution--and they are statistically more likely to comply with it.121

The main problems with mediation are the high cost of private mediators and the difficultly of dragging the tortfeasor family member into such a proceeding. Mediation settlements are voluntary, based on the desire of the two parties to recognize that a problem
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