The Adversary Legal System
by Accord Mediation Services
The adversary process lies at the heart of the American legal system. It has a long and deeply embedded history. The primary assumption is that a judge or jury acting as fact finder will "find" the "truth" based on the evidence presented in the conflict by the lawyer-advocates of the opposing adversary parties. This basic assumption shapes the entire legal system and culture, including the training of lawyers, the nature of our courts, and the way we resolve or conflicts.
The primary function of the lawyer is to present the client's case in the best possible light. This central premise of the legal system assumes that the trial is the final act of the game. That is, the decision of the jury overcomes the dangers and distortions created when two adversary lawyers present two radically different versions of the truth. Now here is the problem: In about 97% of all divorces, the case never goes to trial. Less than 3% actually culminate in a trial resulting in a judgment by a judge. The overwhelming majority of cases are resolved by a negotiated settlement prior to trial.
