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William goldman


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*246 contribute to the family’s harmony. As a result of mediation, the victim may once again enjoy the human dignity that he had lost, improve his status, increase his relative independence within the family framework, and return to normal family life. The law can not always bring the two parties to such an outcome. Nevertheless, if the law, within the prescribed limits, can contribute to the realization of the plaintiff’s true wishes, and if the plaintiff exits the process satisfied, then the injustice has been rectified in the most successful way.

In addition, the goal of corrective justice should be interpreted more flexibly in intrafamilial disputes to allow consideration of third parties, such as family members, who are particularly relevant in intrafamilial claims. Where the couple has children, even if the children are not involved in the dispute, a peaceful conclusion to the dispute in the best possible atmosphere (even if the outcome is an agreement to separate) will have a positive influence on the children. And mediation best allows for a solution that takes into account the viewpoints of all parties involved, not merely the plaintiff and defendant, and allows justice to be done. In fact, it is hard to conceive of corrective justice in such a pure form as to ignore the children, even those that are not a formal party to the tort suit. The children are influenced by the tort; moreover, the children may influence the tort, as they are an important part of the family.

Mediation will also be consistent with the goal of distributive justice if the solution benefits the weaker party to the dispute when there is a power gap.

Mediation, despite its extrajudicial nature, may still be consistent with the goal of deterrence. The tortfeasor will have to make some concessions and will have to participate in a process that forces him to face up to his wrongs. He will see firsthand the effect of his torts on the defendant and other family members. The power of deterrence is not solely based on the reward awarded after the extrajudicial proceeding is completed; rather, the very act of bringing the matter to court and going through a judicial or extrajudicial process can serve as a deterrent. Such a proceeding may also enlarge the aggregate welfare, since the tortfeasor will cease carrying out the tort and the victim will cease suffering. If there are children involved, an extrajudicial settlement that tries to deal with the overall dispute can stop the children from suffering.

6. The Intermediate Proposal and Mediation

It is clear that mediation is in line with the goals of tort law and has the potential to serve as a more productive dispute resolution *247 method than traditional litigation. Mandatory mediation, however, poses some serious drawbacks due to its lack of voluntariness. Therefore, an intermediate proposal should incorporate mediation in a way that still preserves the autonomy of the parties and the court’s control of the suit. In an ideal situation, the spouses would voluntarily choose mediation. If, however, one spouse files a claim against the other without having tried mediation voluntarily, the intermediate solution proposed here would allow the court to utilize its discretion to send the couple to mediation as a mandatory step in their case.177 The judge assigned to the case would determine whether filing the suit and the plaintiff’s desire to litigate are an expression of an irreparable breach. If he makes such a determination, the tort proceedings should continue along their normal path. However, if the judge thinks that there is some chance of restoring domestic tranquility and harmony to the family unit and that there is still some family dynamic in operation (particularly if there are children),178 the judge would have the discretion to send the parties to a quasi-mandatory mediation process. Using an active order, the court could send the parties to mediation prior to hearing the case or in the interim to delay proceedings in the case. In this way, the law will encourage the use of extrajudicial proceedings, while simultaneously preserving the court’s power to hear the case should the mediation prove to be ineffective.

The quasi-mandatory mediation process could take many forms. Some have proposed mandatory mediation when it is important to protect the future relations between the parties;179 as noted above, however, there are shortcomings to this compulsion. Some have suggested conducting a semi-mandatory “lightning mediation,” typically lasting no more than one or two days.180 But lightning mediation does not fully exhibit the potential for a real chance for agreement through dialogue. It has also been suggested that the legislature establish a limited possibility for the parties to opt out of the *248 mandatory mediation as a result of individual circumstances.181 These are desirable solutions that may be suitable for the present case. Yet, it is possible that an even better solution than these might be proposed.

The proposed approach would necessitate that all the states adopt an arrangement under which the judge, if he determines it proper, could require the parties to attend two sessions of mediation or professional therapy. The judge would suspend the proceeding while the ADR sessions were underway, and the confidentiality and immunity of the mediation or therapy sessions would be preserved. The first session would be a familiarization session, in which the mediator or therapist would explain the expected process and the possibility of reaching an arrangement outside the court. The second session would consist of actual mediation or therapy. After those two sessions, the mediator would submit a report to the court. The court would then decide, based on the wishes of the parties and the opinion of the mediator or therapist, whether there is any reason to proceed with the extrajudicial process under the supervision of the court. If the extrajudicial process would not provide a fair alternative resolution, then proceedings would be rescheduled to continue along the legal track, allowing the plaintiff to fully utilize his right to litigate. Refusal by one of the parties to continue the mediation or therapy process beyond those two sessions would be enough to bring the proceedings back onto the legal track. In line with convention, refusal to continue in mediation would not affect the rights of that party in the legal proceedings.

This approach differs from traditional mandatory mediation. It reflects the understanding that the mediation process and the agreement that comes out of it cannot be imposed, as mediation depends on voluntary participation. Also, the approach retains the ability for the plaintiff to exercise his legal right to litigate in tort. In addition, the importance of legal counsel for the parties should not be overlooked, especially if they are entering into an extrajudicial process. If the parties come to this process prior to filing the statement of claim, in many instances they are not represented, which raises the concern *249 that the weaker party may be exploited in the extrajudicial process. On the other hand, with mandatory referral to one or two mediation or therapy sessions after submission of the claim, the parties will likely already be represented. With representation there is a greater chance that the parties’ wishes will be implemented in the best possible way, within the framework of the extrajudicial process, in line with the legal advice received from their attorneys regarding their rights under a possible arrangement. When both parties are represented, the obligation to attend two mediation or therapy sessions is not as coercive, as the parties’ attorneys can provide counsel regarding the feasibility and advisability of proceeding with the mediation. Representation ensures that the parties are giving informed consent. It also ensures that the mediation serves a greater purpose than merely pushing the parties to reestablish domestic harmony while the legal proceedings are suspended.

There may be some resistance to this approach by judges, who may see mandatory mediation as a kind of threat to their status. However, judges must understand that the law, particularly in intrafamilial tort disputes, is insufficient; the remedies that it offers may not be appropriate for the dispute in question, and on occasion may deepen the rifts. Because legal remedies are sometimes inadequate, judges should direct the parties toward a more appropriate forum, such as an extrajudicial process, to resolve their dispute, without ceding their overall supervision of the case. Judges need to understand that the law cannot always provide for the plaintiff’s real wishes, particularly in such highly charged cases. And even under a scheme where the case is sent through the extrajudicial process, the courts remain in a position of power for they never relinquish their ability to adjudicate the issue. Given its discretion and impression of the case, the court’s ability to require the parties to participate in at most two extrajudicial process sessions constitutes remote control of the process. Proceedings in the tort litigation are frozen or suspended during mediation, but they may be reopened at any time following those sessions, should the parties so desire. Consequently, this proposal provides supervision of the progress of the extrajudicial process and the success of its various stages. The court has control over the proceedings, since it is the body that decides whether to refer the parties to these two sessions of mandatory mediation or therapy; if after these sessions one of the parties or both do not desire to proceed, full control returns to the court. Therefore, the judge does not lose his grip on the issue, but has control over it all the time.

*250 This portion of the proposed solution, which applies to the stage following the filing of the claim, limits the individualistic approach through considerations based on the family approach. This solution may be very beneficial in many cases. However, it is clear that this portion of the solution cannot solve the dilemmas ideally in each and every case. By its nature, mediation is voluntary. Even though the quasi-mandatory referral of the parties to two mediation or family therapy sessions is not an affront to the essence of this process, imposing such an obligation may not always help. In severe cases (such as rape and severe abuse), or in cases of de facto separation, such a process may not be applicable. But this is actually one purpose of the extrajudicial process--to sort and separate those instances in which there is a chance of reestablishing family harmony from those in which there is no such chance. Hence, it seems appropriate to attempt to use this tool, which would require suitable legislation in all American states, to allow the court the discretion to mandate such a process following the filing of the claim, when the parties are already represented and acting on the advice of their attorneys. It is true that this solution may not work in all cases, but on the whole it comprises a necessary balance of the individualistic and family approaches that can provide significant benefits to many feuding families.

D. The Trial Phase

Once the claim has reached trial, it should for the most part be treated like any other tort claim. But, as has been emphasized throughout this essay, one cannot ignore the family aspect of the claim, especially at this stage of hearing the case itself. The framework created here for dealing with familial torts should apply regardless of the specific grounds for individual claims. In future development, this general framework will need to be augmented by discussion of the specific torts themselves, but the bulk of the framework is relevant to any tort that may be carried out against a spouse. This section suggests three innovations for intrafamilial torts in the trial phase: legislation of new remedies of apology and expression of regret; an interpretation of the de minimis defense that posits that small or insignificant torts for which a reasonable person would not sue should not be taken into account by the court; and the use of aggravated or punitive damages in appropriate instances.

*251 1. Emotional Remedies

Due to the nature of the torts within the family unit, and the fact that the true remedy sought is often not a traditional legal remedy, there is room to legislate suitable alternative remedies for familial torts. Such remedies could include an apology or an expression of regret.182 Judges should be allowed to make a ruling awarding “emotional remedies,” either on their own or in conjunction with other remedies.

Although emotional remedies seem atypical for the legal system, there are instances, even in claims between strangers, where the law provides for the award of similar remedies. For example, in many countries, defamation claims can be remedied with an apology, correction, or retraction.183 This arrangement should be adopted for intrafamilial torts, but not limited to defamation suits. The court could obligate the defendant to provide such a remedy, orally or in writing, even before the final judgment in the case. If the court decides to impose compensation on the defendant, the court should consider reducing the compensation award on account of a sincere apology made by the defendant.

2. Expanded Interpretation of the De Minimis Defense

Another element to the intermediate proposal is the expansion of the de minimis defense in claims between spouses. Such a defense would come into play to block certain torts committed by one spouse against another--but only the most minor and insignificant ones; most intrafamilial torts should not be blocked.

The court should use its discretion to filter claims based on the severity of the claim and the chances of restoring family harmony. In the modern world, entering a spousal relationship, unlike the relationship between children and parents, is generally voluntary. Therefore, there has to be an understanding that although this intimate relationship is justiciable, not every incident causing tension--even behavior that might be justiciable had it occurred between strangers--should be the basis for suing a family member in tort. *252 There are understandings implicit in relations between family members, as well as express agreements, that can override tort liability184 or at least set a special standard for liability between family members.185

At the same time, there are certain torts to which a victim cannot reasonably be said to have consented, even in a spousal relationship. It is clear that a spouse does not consent to being beaten, raped, or abused,186 and clearly no mitigating criteria should be applied for these severe intrafamilial cases.187 This argument might also apply at times to other torts,188 such as minor assaults.189 Even the doctrine of assumption of the risk is not accepted as a defense in instances of intentional behavior (including cases of assault or intentional infliction of emotional distress), but rather only in instances of negligence.190 It would be illogical to utilize this defense or *253 the defense of contributory negligence for an intentional tort that forms the basis of a battered wife’s tort claim--e.g., barring the spouse’s tort because she did not leave her husband after the abuse. Such extreme torts are, of course, not the only types of cases that should be heard.

Nevertheless, outside of intentional or severe torts, there is something to this social rationale, an implied agreement under which living together means that not everything is justiciable. In my view, this rationale of an implied agreement should lead to an expanded legal interpretation of the de minimis defense, in regard to spousal claims.

When a tort claim is submitted against a spouse, the court should interpret the claim in view of the de minimis defense. In entering a spousal relationship, the partners need to understand that they will have to make certain compromises beyond those customary between two strangers. The couple will also need to accept that there are frustrations that are not suitable for litigation. Nonetheless, if one spouse sues the other for what appears to be an incident that should not be litigable, like a curse or an insult, even if a similar incident would be litigable between two non-related individuals, this defense should be applied. Here, this argument against recognition of such a claim serves only to limit rather than to block the intrafamilial tort.

The de minimis defense is particularly necessary for spouses who sue each other over minor matters. In family relations, the risk of a frivolous suit is greater in delicate or volatile instances. If the couple is already involved in a bitter divorce dispute, a spouse may sue in order to gain an advantage or place pressure on the other party, just as people who are involved in a quarrel may file a complaint with the police in order to make an issue out of some small incident. The added tort in this instance would be separate from the divorce suit. Such a claim could subvert an agreement in a divorce case, property settlement, alimony claim, or custody claim. Courts should be sensitive to insignificant claims that are filed for ulterior motives and should have mechanisms to deal with them.

*254 A spouse should be allowed to let off steam at home without being necessarily exposed to a tort claim. The limit between a real tort and a de minimis tort in spousal relations should be based on the severity of the action (i.e., the input), the harm actually caused (i.e., the output),191 the frequency of the action, its nature, and perhaps even its influence on other members of the family unit. This framework is not a call for recognition only of claims that derive from severe, intentional torts,192 but simply a call not to block litigation in claims that, on the surface, do not appear insignificant in comparison to the circumstances of the family unit.193 It accomplishes this goal by expanding use of the de minimis defense in situations that are insignificant, petty, or an attempt to abuse the legal system. Such an interpretation of the de minimis defense distinguishes between a *255 “regular” tort claim and a tort claim between spouses and limits the recognition of the latter in a restrained manner, through considerations based on the family approach.

3. The Use of Aggravated and Punitive Damages in Cases of Intentional and Severe Torts

Although the intermediate solution proposed here tempers the individualistic approach with family considerations, it follows the individualistic approach in calling for an increase in the use of aggravated damages and punitive damages in instances of severe, intentional torts between spouses, in appropriately extreme cases. The increase of damages is, in effect, the converse of the treatment suggested in the previous section on de minimis cases.

The use of aggravated and punitive damages strongly favors the individualistic approach. The significance of punitive damages and the considerations for or against their being awarded have been explored by other authors and will not be discussed here.194 However, it is clear that the award of a sum greater than the valuation of the *256 damage itself expresses revulsion at the tortfeasor’s acts, and its primary purpose is to punish and deter.195 Punitive damages for intrafamilial claims are particularly suitable in cases in which the extrajudicial track has been deemed inappropriate or has turned out unsuccessful, and where the matter involves a severe, intentional tort that constitute a serious breach of trust.

Courts should also consider awarding aggravated damages. Aggravated damages are similar to punitive damages in that they also consider the severity of the tortfeasor’s behavior and are awarded in instances in which there exists an element of intent or malice. They are an expression of an honest assessment of the harm caused, where the harm was aggravated by the tortfeasor’s inappropriate behavior.196 These damages are awarded especially in cases of non-property damage, such as harm to one’s good name or feelings, and thus may be particularly appropriate for torts based on non-monetary injury. Aggravated damages have been awarded in cases of tort claims for violence or abuse.197 Aggravated damages are justified by the severity of the tort, particularly in cases in which the courts traditionally award relatively low damages for non-monetary injuries. Aggravated and punitive damages should be reserved for severe torts and should not be used for tort claims between spouses based on negligence that is neither intentional nor malicious.198

To summarize, in regard to the less serious incidents in family life, courts should consider the de minimis defense, while in the most severe instances, courts should be free to award punitive and aggravated damages. In the intermediate cases that have reached the trial stage, cases will be handled just like non-spousal tort cases, except for the added possibility of using new remedies such as apologies and expressions of remorse.

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