Formal law

Formal law was rarely mentioned by interviewees as guiding their actions and perceptions. However, the legal field of divorce, and any other type of legal field, cannot be fully grasped without acknowledging the role of formal law. For formal law may be so crucial in shaping the field’s structure and playing rules that it is in fact part of the ‘durable dispositions’ forming the agents’ habitus, in no need of conscious deliberation (see also Hagan and Levi, Reference Hagan and Levi2005, p. 1503).

Under Israeli formal law, family matters, including divorce, are governed by a dual regime. There are separate religious courts for Jews, Muslims and Christians that operate parallel to and in conjunction with a civil family courts system, enjoying both overlapping and exclusive authorities. Whereas only the religious courts can grant a divorce decree, in other, related matters (such as alimony, property, custody and visitation), the religious and civil courts enjoy parallel authority and the matter is decided by the tribunal with which it is first filed (Shava, Reference Shava2003). Of particular significance are the legal rules that determine that divorce cannot be conducted privately: Israeli law mandates that every divorce must enter the legal field. The divorce agreement must be approved by either a religious legal tribunal or a civil court for it to have legal effect or, alternatively, the relevant tribunal or court must decide on the terms of divorce when no agreement has been reached between the parties, and the formal act of divorce is then supervised by a religious tribunal.Footnote ⁴ The written law thereby positions religious and civil courts as essential and powerful institutions within the legal field of divorce and signals married couples’ lack of autonomy from intervention by state organs in their separation. This signal is even further reinforced by the absence of no-fault divorce from Israeli law. Indeed, the subordination of each and every divorce to judicial supervision is a manifestation of the tight link between the legal field and the state, the latter conceived as a meta-field by Bourdieu due to its monopoly over legitimate symbolic power (Bourdieu and Wacquant, Reference Bourdieu and Wacquant1992, pp. 111–12), so often manifested in formal law (García Villegas, Reference García villegas and Cotterrell2006).

An additional formal guideline set by Israeli law that affects the field’s structure and logic is the prescription of ‘the best interest of the child’ as the only relevant criterion in custody disputes between divorcing parents.Footnote ⁵ In so providing, the law allows therapeutic professionals, perceived as experts in assessing and predicting that interest, to gain entry into the legal field. Indeed, as we shall see, therapeutic evaluation is an inevitable part of the legal process in all custody disputes. This raises the significant question, considered below, of whether this criterion in fact undermines the legal field’s specific logic and subordinates it to the therapeutic habitus.

Formal law impacts not only the structure of the field, but also the professional habitus of its agents. The child’s-best-interest criterion, in conjunction with the assumption that parental conflict is harmful to the child and the legal provision that parents should agree in all matters related to guardianship over their children,Footnote ⁶ partially explains the general consensus in the field that a settlement between the parties, as opposed to a judicial ruling, is the optimal solution in parental divorce. As we shall see, this perception is tied to the prevalent practice in the field of pressuring divorcees to reach an agreement. This pressure shapes the judges’ role, is the source of lawyers’ authority as the law’s representatives outside the courtroom and is manifested in the institutionalised effort to introduce mediation into the legal field.

It is important to note that, despite the formal legal rhetoric regarding the centrality of the child’s best interest and the legal field’s support for this criterion, in most cases, the specific child’s interest is apparently never assessed by any agent occupying one of the field’s positions. In setting guardianship, custody and contact with the non-custodial parent as the issues to be determined,Footnote ⁷ the law in effect narrows the scope of the personal, familial and social aspects of the parent–child relationship after divorce to these three areas. Mather and Yngvesson (Reference Mather and Yngvesson1980–1981) argued that such narrowing is an extremely prevalent process when disputes are transformed into legal concepts, and from my study, it emerged that this is even the case when the parties present the court with an agreement. Almost all the settlements filed in the court records examined included ‘custody’ and ‘visitation’ arrangements – the two leading terms shaped by the legal field governing divorce regarding parents–children relations. In Shifman’s terms (Reference Shifman1989, p. 232), the law assumes that the best interests of the potential child are served by a custody and visitation agreement between the parents, thereby allowing the legal field (except in the rare instances of bitter parental conflict over custody) to bypass a thorough discussion of the best interests of the actual child whose parents are divorcing. In effect, formal law promotes the confinement of every family’s relations, regardless of its members’ unique characteristics, to a uniform set of terms that facilitate bureaucratic management of the post-divorce relations. As will be shown, in so doing, the law bolsters lawyers’ ability to direct their clients towards such standardisation in their out-of-court settlements and contributes to the exclusion of therapeutic mediation from the legal field governing divorce.

Moreover, formal law clearly impacts also the scope and content of interpretative struggles within the legal field, thus further shaping its structure as well as its agents’ habitus. Unlike the case in Western countries, Israeli law still incorporates the ‘tender year’s presumption’, with the Capacity and Guardianship Law instructing courts to rule according to the premise that ‘children up to the age of six shall be with their mother unless there are special reasons for directing otherwise’.Footnote ⁸ This doctrine is one of the underlying reasons for the unwavering domination of sole maternal custody in Israeli divorce, which was the outcome in over 90 percent of the cases examined in the study. But it is not only what the law states explicitly that bears weight, but also what it refrains from saying. The law does not detail visitation arrangements, thus leaving this a vague area to be regulated by the field. The enormous variety of visitation schemes found in the cases reviewed can be attributed in part to this lacuna. Despite the efforts of lawyers and the court to influence and standardise visitation schedules, ninety-nine different models of schedules were identified in the 309 files with sole maternal custody. Moreover, it emerged from the interviews that the law’s favouring of maternal custody deters fathers from fighting for custody, and they instead channel their relative power into the negotiations and battle over visitation rights. Thus we see here yet another example of the interconnection between formal law and the negotiations that take place in its shadow.

Formal law hence provides us with preliminary guidelines for understanding the legal field’s structure and logic. Unlike the sometimes elusive and hard-to-detect structures and logic of other social fields, formal law is the ‘written manual’Footnote ⁹ of the legal field, determining the central positions and their relative power and the perceptions and bargaining behaviours of the agents occupying those positions. Obviously, like any text, this manual is only partial and open to different interpretations. This feature of formal law, which, as Bourdieu reminded us, cannot be understood as an oppressive structure that leaves no space for the individual action, returns us to the interpretive and active agents and their subjective interaction within the field. In the next section, I present and discuss the study findings that fill in the spaces left by formal law. I begin with an analysis of the role and relative power of the field’s main positions: courts and judges, lawyers and their clients, and therapeutic professionals. I conclude with a discussion of the competition between lawyers and therapists over the monopoly on mediation.

The judiciary

This section in effect challenges Bourdieu’s adversarial depiction of the role of judges and elaborates on the part they play in directing litigants towards supervised agreements. In addition, I critique Bourdieu’s disregard for the courts as institutional agents in the legal field and apply his general field theory to argue that court fees, forms and support staff, along with judges’ habitus, all impact the judicial procedure and its outcomes.

As mentioned, the dual legal system that governs divorce in Israel is composed of civil family courts and religious tribunals. The Jewish religious tribunals, known as the rabbinical courts, are part of a legal system that was formed in Palestine before the establishment of the State of Israel. Rabbinical court judges are required to be ordained orthodox rabbis (most are from the ultra-orthodox stream) and, consequently, are always male. In contrast, the family court system is a relatively new innovation, established in 1995–1997 in an attempt to centralise all civil family matters under one roof and to create ‘caring courts’, offering up-to-date in-court therapeutic services. Family court judges must be specialists in family law matters and have at their disposal a wide array of therapeutic professionals to assist them in their determinations. For instance, whereas the regional rabbinical court focused on by the study was, at the time, assisted by only one social worker in the court’s Advisory Unit, the Assistance Unit of the family court in the same region employed twelve full-time social workers as well as a psychologist and psychiatrist part-time.Footnote ¹⁰ Both the family courts and rabbinical courts are subject to the Jewish religious law governing divorce, unless a specific civil law provision has set an overriding norm; however, in some matters of procedure and evidence law, the rabbinical courts follow religious rules and the family courts apply civil regulations (Rosen-Zvi, Reference Rosen-zvi1990, pp. 69–92). The decisions of the courts in both systems are subject to constitutional review by the Israeli High Court of Justice. This unique dual structure offers a rare and enlightening opportunity to conduct a comparative study of the role of judges and courts in divorce proceedings.

To begin with, there are a number of similarities in the performance of judges in the two court systems. In both the family court and the rabbinical court, a judicial ruling determining the terms of divorce is the exception. The data revealed that only 2.2 percent of the cases were actually decided by the judge on matters of custody or visitation. It should be noted that this may be lower than the overall proportion of judicially determined cases, if all such cases are factored in, due to the bias deriving from the restriction of the sample to cases concluded within three years of filing. However, other evidence, including the rarity of custody and visitation claims and low rate of appeal in these matters reported by district court judges interviewed, seems to point to the non-litigious character of this field, at least with respect to non-financial issues. This conclusion correlates with findings from studies conducted in other countries, mentioned in the Introduction, which have shown that, in family law matters, as well as in other areas of law, most cases are concluded without the need for a judicial ruling.

In light of the scarcity of judicial determinations in divorce and other civil cases, some scholars have concluded that, in contrast to their substantial role in the past, civil judges have served, since the mid-twentieth century, merely as a rubber stamp for agreements filed for court approval (Friedman and Percival, Reference Friedman and Percival1976). My study findings, however, contradict this conclusion and instead indicate that judges continue to be important agents in the field of divorce, albeit not necessarily in the capacity of handing down formal rulings. Interview responses revealed that both family court and rabbinical court judges actively direct litigants towards reaching agreements, employing three different tactics. First, the judge may issue an order against recording the courtroom proceedings, aimed at enabling the parties and their lawyers to speak freely and ‘off the record’. This practice is based on the assumption that eliminating the fear that statements made in the course of negotiations will be later used against the speaker increases the likelihood of the parties’ arriving at a mutually acceptable agreement. A second method used by judges to encourage settlements is to postpone hearings. As one family court judge recounted, this ‘lets the parties stew’ [F4].Footnote ¹¹ The intentional delays cause distress to the parties and eat away at their means for the costs of the court procedure, thus encouraging them to end the dispute without the formal intervention of a judge. A third method used by judges to promote agreement is to suggest possible settlement options. One lawyer vividly described the power of judges to push parties into agreement:

It is clearly understandable that the force of a judge’s suggestions stems from her position as final arbiter or, in Bourdieu’s terms, the final determiner of the law. However, the role played by judges that emerges from my study deviates significantly from that depicted by Bourdieu, who completely ignored the phenomenon of legal negotiations and settlements in his analysis of the legal field. The study findings are consistent with Mark Galanter’s argument that ‘courts not only resolve disputes, they prevent them, mobilize them, displace them, and transform them’ (1983, p. 34). Indeed, it seems that at least family court and rabbinical court judges who work at the trial court level – the lowest and widest rung of the hierarchical legal field – do not insist on performing the decision-maker role, and instead prefer to leave the concrete decisions to the parties themselves.

One of the consequences of judicial reluctance to end parental divorce proceedings with a court ruling is that judges do not take full advantage of the opportunity to constitute the law by infusing substantial and clear content into vague legal terms such as ‘the best interest of the child’. This seemingly contradicts Bourdieu’s claim that judges are in ongoing competition with all other agents in the legal field over the power to determine the law. If such was, in fact, the case, we would expect to find strategic attempts by judges to exacerbate divorce conflicts and frequently hand down legally binding decisions.

In fact, several explanations can be offered for judges’ anti-adversarial tendencies, including heavy case-loads awaiting speedy resolution, consensus amongst all the field’s agents that parental marriages are best terminated by consent as parental conflict is harmful to children, or the emotional burden for judges entailed in hearing the testimonies of family members. However, the position of family court and rabbinical court judges in the Israeli legal field of divorce becomes fully apparent in light of the crucial findings on the direct and indirect pressure judges bring to bear on divorcing parents to reach an agreement, which contradict, and thus collapse, the conventional dichotomy set between rulings and agreements. As described, judges are often active in bringing divorcing parents to an understanding, by facilitating off-the-record negotiations inside the courtroom, postponing hearings or hinting at the contents of a potential ruling should an agreement not materialise. Combined, the judges’ presence and performances contribute to a hybrid legal outcome: an arrangement that is neither a reflection of the parties’ free will nor a product of a formal judicial decision. It is, rather, an agreement shaped under the judicial gaze.

Such an understanding of the legal outcome in many divorce cases allows us to expand on Bourdieu’s perception of the prize contended for in the legal field, namely, winning the battle over how legal texts – laws and precedents – are interpreted. As evident from the study findings, this conception captures only the adversarial end of the continuum of legally endorsed outcomes, which includes judicially approved out-of-court agreements as well as all other agreements formulated under relatively active judicial intervention. Thus, the legal field offers a greater prize than the power to determine the law in its narrow formal sense and should be understood as including also the power to approve and influence legally binding ‘agreements’. Indeed, in the context of divorce, the position of judges as final arbiters, even though manifested only in a small proportion of the cases brought before them, in conjunction with the need for court approval for a divorce agreement to be legally binding, often allows judges to forego the struggle over the interpretation of formal legal texts, without fear of weakening their position in the field and their influence over the outcomes of the legal procedure.

The important similarities between rabbinical and family court judges that emerged from the study notwithstanding, it is the differences between the courts in the two systems that illustrate the complexity of the courts’ role in the legal field. Both lawyers and family court judges harshly criticise the rabbinical court system, claiming that it is a patriarchal regime that is detrimental to women, that its judges lack therapeutic knowledge and therefore their decisions cause harm to children of divorcing parents, and that, at the very least, it is inefficient, with files often lost in the system. From the interviews it was apparent that lawyers and family court judges alike perceive their own habitus, of modern and educated professionals, to be substantially dissimilar and superior to the habitus of rabbinical court judges, who, in the majority of cases, lack a university legal education and are entrenched in an orthodox and traditional way of life. The shortcomings of the rabbinical courts as well as their judges, argue lawyers and family court judges, led to the emptying of their corridors following the establishment of the family court system in 1996.

My study found, however, that even after the institution of the family courts, almost half of the examined cases had nonetheless been submitted exclusively to the rabbinical court. What can explain the continued appeal of the rabbinical courts, in contradistinction to the impression held by family court judges and lawyers? The answer relates to the fact that the two types of divorce proceedings operating in the field are divided and characterised by economic class.Footnote ¹² The study found that the one set of proceedings, in the rabbinical court, tends to feature relatively poor parties, who do not hire lawyers and usually file for divorce without any advance settled agreement. They are often presented with a standard, one-page divorce agreement at the rabbinical court, which they usually sign automatically, filling in only their names, addresses, number of children and amount of child support to be paid. The second type of divorce proceedings, in the family courts, is characterised by parties from the middle and upper classes. These litigants hire at least one lawyer and usually conclude the process with a detailed settlement agreement.

The statistical analysis of the study’s findings revealed that the probability of a relatively poor party filing with a rabbinical court, as opposed to with the family court, is thirty-seven times greater than the same probability for a relatively wealthy party, after controlling for representation (see Appendix A). Why do poorer people file with the rabbinical court whereas more privileged parties turn to the family court? My findings offer several explanations related to different aspects of the procedures in the two types of tribunals.Footnote ¹³ One factor is the lower court expenses entailed by the proceedings in the rabbinical courts. For example, there is no charge for filing an alimony suit with the rabbinical court, whereas the family court charges a fee of $50. Another factor relates to the legal forms submitted to the courts. The rabbinical court provides the public with simple, standardised forms with which the layperson can initiate a legal procedure without the assistance of a lawyer. For instance, the brief, one-page long ‘Mutual Petition for Divorce’ form requires only that parties fill in their names and addresses and the names and ages of their children, with four lines provided for the parties to explain their reasons for the petition. Several of the rabbinical court forms in the files examined contained only a few handwritten words with spelling and grammar errors. While conducting my study at the rabbinical court, I witnessed several encounters in which an officer of the court assisted a party in filling out such forms. In contrast, none of the legal documents from the files studied in the family court was handwritten and all were formulated in legalese. Indeed, while at the family court, I learned that law students, stationed there to assist unrepresented parties as part of clinical work, advise them, in cases of divorce proceedings, to delay the legal procedure until they hire a lawyer. These various findings highlight the shortcomings of Bourdieu’s neglect of courts as institutions and his focus on judges as the sole relevant agents in the context of the judiciary. Judges are in fact only one component of the court. The institution comprises also forms, fees, officers of the court and other support staff, all of which influence the court’s accessibility to the public and the nature of the legal proceedings that are conducted between its walls.

An additional striking difference between the rabbinical and family courts relates to the role of lawyers within each tribunal. The statistical analysis I conducted revealed that the probability that an unrepresented party will approach the rabbinical court is thirty times greater than for someone with representation, after controlling for economic class (see Appendix A). One explanation for the greater involvement of lawyers in the family court is the higher status they enjoy in this tribunal when compared to the rabbinical court. Rabbinical court judges are guided by religious rules requiring the parties themselves to be heard prior to the claims of their lawyers.Footnote ¹⁴ Indeed, this insistence fuels the claims made against the rabbinical courts by other legal professionals. Both family court judges and lawyers claim that in many cases the atmosphere in the rabbinical court resembles that of a market-place, with people shouting to the point of negating any possibility for conducting a rational hearing. In contrast, in many cases heard by family courts, the parties are not heard at all, with lawyers alone communicating with the judge. The rabbinical court judges I interviewed defended their way of running their courtrooms by stating that only by hearing the parties themselves can they learn the true nature of the family, unconcealed by the legal jargon and tactics employed by lawyers. It is hardly surprising, then, that lawyers tend to refer their clients to the family court rather than to a tribunal that marginalises their role.

Thus, we find here an explanation for the inconsistency between the claim made by lawyers and family court judges that the rabbinical courts have been abandoned in favour of the family courts and the evidence arising from the study’s data showing that almost half of all divorce petitions are filed with the former: lawyers are simply oblivious to the population that does continue to resort to the rabbinical courts. The divergences between the two types of courts manifested in different norms, practices, fees and forms make the rabbinical court more accessible to the underprivileged and unrepresented, i.e. the public not served by lawyers. Indeed, the data on the two very different divorce procedures within the legal field reinforce Bourdieu’s claim of the significance of class habitus to agents’ ability to enter and compete in a specific field. Whereas the poor have ready access to the rabbinical court and can easily participate in the legal game that takes place inside its walls, their alleged irrational and unprofessional habitus and their economic inability to hide behind a lawyer’s habitus limit their ability to participate in legal procedures within the family court.

It is important to note that these differences between the two court systems result in considerably diverging legal outcomes. Although sole maternal physical custody is dominant in both family court and rabbinical court files, there are statistically significant deviances between the legal custody, visitation and child support arrangements found in each tribunal’s files. Arrangements in the family court files examined in the study were more detailed than those filed with the rabbinical court with respect to continuous paternal involvement in decisions concerning the children and the visitation schedule, as well as providing for higher child support (see Appendices B, C and D). The simple, uniform divorce agreement form used by parties in the rabbinical courts contributes to the relative lack of detailed legal custody and visitation arrangements. The form makes no reference to paternal legal custody, stating only that, with advance co-ordination, ‘the husband-father is entitled to see his children at any time outside the mother’s home’. With no lawyers to negotiate the nature of the father’s post-divorce involvement in his children’s lives and lacking the human capital to investigate other options, the unrepresented and underprivileged parties resorting to the rabbinical court conclude their divorce proceedings completely uninformed of paternal legal custody and visitation rights. The study interviews exposed the contribution of judges to these differences in outcome. Rabbinical court judges believe that in cases with no hope for spousal reconciliation, the most pressing task is to issue a divorce decree, even if at the price of allowing vague agreements. From their religious point of view, a situation in which a married couple does not live as such might have dangerous consequences, such as relations with others while married. Family court judges, on the other hand, believe that the divorce procedure must take as long as needed for the construction of a divorce agreement, including a visitation schedule, that will be clear and detailed, to enhance stability and predictability in the life of the post-divorce family. The diverging worldviews of the judges in the two court systems may also be a factor in the lower level of child support set in the rabbinical court agreements examined, as compared to their counterparts in the family court files, even after controlling for economic class (see Appendix D). This finding supports the assertions of certain interview respondents that rabbinical court judges are ignorant of children’s needs in modern society and set child support according to the standards of the traditional and relatively poor ultra-orthodox community they belong to.

To conclude, this analysis of the position of courts within a legal field uniquely comprising two very different judiciaries illustrates that courts have not lost their power and judges are not mere rubber stamps. Although most divorce cases end in agreements rather than judicial rulings, in many cases these agreements are not entirely the product of the parties’ free will, but rather, their contents are significantly influenced by the presiding judge. Family court and rabbinical court judges employ both direct and indirect tactics to promote agreement between the divorcing spouses. Moreover, their habitus, in conjunction with in-court factors such as forms and fees, impact the relative accessibility and appeal of their courts for different populations, the status accorded lawyers within the different systems and the outcomes of the legal proceedings.

Lawyers and their clients

In this section, I continue to contest Bourdieu’s adversarial image of the legal field by showing that lawyers successfully try to channel much of the legal action out of the courtroom, into the shadow of the law where their power has its greatest effect. Furthermore, I will argue that, although lawyers are more powerful than their clients, as Bourdieu rightly claimed, the latter should not be excluded from the analysis of the legal field.

Although legal representation in divorce is not mandatory in Israel, the data gathered from the court files revealed that, in the majority of cases, at least one party is assisted by a lawyer. In 55 percent of the case files, there was clear indication of a lawyer’s involvement either inside or outside the courtroom; in an additional 25 percent of the cases, there was indirect evidence of a lawyer’s involvement in the professional legal formulation of the divorce agreement. These findings correspond with those of Maccoby and Mnookin (Reference Maccoby and Mnookin1992) but are lower than what emerged from other American studies (for references and discussion, see Beck and Sales, Reference Beck and Sales2000). Both the case files and interviews indicated that the majority of family lawyers are from the private sector and only a small proportion of divorcees are represented by state lawyers or by legal counsel provided by NGOs. While the names of 225 different lawyers were extracted from the 360 files, some appeared more than once. The interviewees stated, moreover, that although some general practitioners do practise family law, most lawyers engaging in this area of law are specialists and some have acquired notable reputations and a relatively high ranking in the divorce legal field.

Two prevalent images of divorce lawyers emerged from the study: the mediator and the fighter. The mediator lawyer represents both parties and assists them in reaching an understanding in a non-conflictual manner. This practice is allowed under the Israel Bar Association code of ethics, to which all Israeli lawyers are subject. While the code prohibits lawyers from representing simultaneously two parties with conflicting interests, it does allow them to assist conflicting parties in shaping an agreement.Footnote ¹⁵ The comment of one of the lawyers interviewed is very illuminating regarding the norms and strategic behaviour of mediating lawyers:

By contrast, the fighter lawyer represents only one party and encourages his client to fight for her rights and interests. One of the lawyers interviewed in the study is well-known in the field as one such fighter, and his comments support this reputation:

Most interviewees criticised such combative lawyers as motivated by greed, a claim based on the practice of charging higher fees for litigation than for negotiation and assistance in formulating an agreement. Indeed, the interviewed fighter lawyer cited above proudly recounted how a client had been forced to mortgage her apartment in order to pay his fees.

At first glance, it would appear that the litigious lawyers occupy a more powerful position in the legal field than the mediators, in both the economic and professional dimensions: they are paid more by clients and are considered more professional since they specialise in litigation, which is the struggle over the determination of the law in Bourdieusian terms. However, Ingleby’s (Reference Ingleby1992) findings regarding the economic axis and my findings and those of others on the professional axis suggest that mediator lawyers compensate themselves on both levels. Ingleby (Reference Ingleby1992, pp. 157–58) claimed that concluding divorce cases with a settlement better serves lawyers’ economic interests, as opposed to litigation, as it enables them to take on a bigger case-load as well as increasing the probability of their fees being paid and clients recommending their (inexpensive) services. On the professional level, the determination of who is a ‘good lawyer’ seems to be significantly influenced by the prevailing view that marriage is best ended in a settlement agreement, not litigation. The interviewees in my study subscribing to the anti-adversarial norm, indicated that they believe a good, professional lawyer to be an attorney who helps her clients reach an agreement rather than push them into long, conflictual and costly legal battles (see similar findings in Eekelaar et al., Reference Eekelaar, Maclean and Beinart2000; Erlanger et al., Reference Erlanger, Chambliss and Melli1987; Griffiths, Reference Griffiths1986; Ingleby, Reference Ingleby1992).

Although the majority of studies have shown that most family lawyers can be classified as mediators (see e.g. Griffiths, Reference Griffiths1986; Sarat and Felstiner Reference Sarat and Felstiner1995), others have indicated that the two groups are roughly equal in size (Murch, Reference Murch1977; Kressel, Hochberg and Meth, Reference Kressel, Hochberg and Meth1983). The interviews with lawyers for my study were too limited in number to offer any conclusive insight on this issue in the Israeli context; however, the minimal amount of custody and visitation actions found in the court files examined is evidence of the absence of confrontational litigious strategies, at least with respect to these issues. Nonetheless, this does not necessarily entail the conclusion that lawyers play a minor role in divorce cases. On the contrary, regardless of whether a lawyer is of the fighter or mediator type, or something in between, he or she plays a crucial role in shaping the final terms of divorce.

In the interviews, it emerged that most of the respondents who forewent legal counsel did so because of limited resources, not because they believed it to be unnecessary. Moreover, most of the represented interviewed divorcees in fact believed that they could not have undertaken the legal procedure on their own. As one divorced woman explained when asked why she and her former husband had turned to a lawyer:

Such an understanding of the imperative role of legal language correlates with Bourdieu’s claim regarding the position of lawyers and clients in the legal field. As he stated, lawyers create a need for their services by securing a monopoly over the translation of ordinary language into legal language. In entering the legal field, the layperson abandons other mechanisms for solving her problems, submits her matters to the control of the legal professionals and is reduced to the status of a client (Bourdieu, Reference Bourdieu1987, p. 834). One possible explanation for this willingness to hand over one’s affairs to lawyers, which can be divined from the interviewees in my study, is the layperson’s ignorance and lack of self-confidence (see also Relis, Reference Relis2002). One therapeutic mediator went so far as to compare the condition of divorcing spouses to shell-shock, arguing that the parties turn to lawyers because they are in crisis and ‘in a crisis you need someone to take you by the hand’ [F42].

In their extensive study, Sarat and Felstiner (Reference Sarat and Felstiner1995) found that lawyers contribute to their clients’ insecurity and passivity when they tell them that people undergoing divorce are in an emotionally vulnerable state that undermines their ability to make rational decisions. Another dimension in this expert–layperson definition of the situation is that, as a setting, the lawyer’s office helps to convince clients to leave their matters in the attorney’s hands. Though the offices of the lawyers interviewed for my study were generally less extravagant than commercial law offices, family lawyers’ offices are nonetheless a site of distinction between the lawyer and her clients, enhancing the control of the former over the latter. To begin with, when clients enter law offices, they almost always have to first go through a secretary, who screens their access to the lawyer. Then clients enter their lawyer’s office, whose walls are usually lined with professional books and decorated with degrees and certificates; the lawyer sits in a large executive chair behind a large desk covered with files and papers, which separates him or her from clients, who are seated on regular chairs. In Goffman’s (Reference Goffman1959) terms, these features, combined with the attire of a dark suit and tie usually worn by Israeli attorneys,Footnote ¹⁶ serve as tools in impression management.

Moreover, Sarat and Felstiner (Reference Sarat and Felstiner1995) found that lawyers enhance their status in the eyes of their clients by portraying judges as incompetent and presenting negotiations as a superior option to litigation. My study had similar findings, showing that lawyers tend to push their clients towards an agreement by emphasising the unpredictability and loss of control inherent to judicial determinations. For example, as if echoing Jerome Frank, one lawyer explained:

Another lawyer interviewed described courts as ‘capricious’, stating:

Clearly, loss of control once the case reaches the judicial ruling stage is a predicament not only for the parties but also for their lawyers. In contrast to the descriptions of the power and control lawyers enjoy in shaping agreements, an experience of profound helplessness was conveyed by lawyers in reference to judicial rulings. Lawyers gave their lengthiest and most emotional responses in describing cases in which, despite their professional efforts, a wrongful and harmful custody ruling was issued. In Bourdieu’s terms, lawyers seem to be deeply aware of their relatively weak position in the competition with judges over the right to determine the law inside the courtroom; consequently, they steer their clients towards the sphere where their position allows them greater control over the legal outcome – the sphere of out-of-court negotiations.

Indeed, although some divorcees reported monitoring their lawyer’s actions, independently initiating evidence-gathering and negotiating agreements, it appears that, regardless, lawyers make a significant contribution to divorce negotiations in general. Illustrative of this is the experience recounted by a divorced mother of one [F13]. She recalled how the lawyer she and her ex-husband had hired had sent them off to do ‘homework’ and return to her with a draft divorce agreement. The two parents then sat in a coffee shop and listed the clauses they understood should be included in such an agreement. When they returned to their lawyer, she told them that the court would never grant the mother the agreed-upon monthly child support of $550, leading the parents to reduce the amount to $400. The lawyer further explained that, contrary to the parents’ understanding, the visitation arrangement they had drafted is the father’s right rather than obligation. Another example illuminating the influence of lawyers in negotiations involved two parents who wanted to share physical custody of their two daughters [F22 and M19]. Their lawyer informed them that joint custody does not exist in Israel. The father mistook this to mean that joint custody is illegal in Israel, and both parents abandoned this option. Indeed, interviewees repeatedly recalled the ways lawyers communicate to clients the formal legal situation or, even more often, the ‘common’ divorce arrangements they should accept. These two accounts of attorney involvement, similar to others described by study interviewees, demonstrate that lawyers are less engaged in a professional struggle over the determination of the law, as depicted by Bourdieu, and more occupied with normalising their clients’ expectations. This normalisation process is conducted by referring to the shadow of the law and, to an even greater extent, to the customary and normative agreements prevalent in the field. One of the most frequent questions asked by clients is ‘What is the accepted arrangement?’; by answering this question, lawyers both convey to their clients the kind of arrangements judges are likely to approve and participate in the very creation of these arrangements. Again, this is a struggle over the determination of the law, but a less apparent and far broader one than those battles waged in the framework of adversarial court procedures.

In Galanter’s (Reference Galanter1974) terms, lawyers’ normalising power derives from the fact that they are repeat players in the field, as opposed to their one-shotter clients. Indeed, this characterisation of most layperson parties most likely explains why Bourdieu did not perceive clients of the legal field as constituting a position within the field. Indeed, it can be argued that no professional field includes positions of laypeople visiting the field as clients or consumers. Clients’ impermanent presence in the field and lack of shared habitus inhibit the evolution of a ‘position of clients’ in professional fields. However, my study exposed a number of indications that the legal field cannot be fully understood if clients are excluded from the analysis. Various findings pointed to the importance of conceptualising their place and role within the legal field: the fact that some parties do not turn to lawyers (25 percent in my study); the fact that courts and lawyers decide on their strategies in accordance with the parties’ economic and social capital; and the fact that, in some instances, lay parties do successfully challenge the professionals within the field and the field’s doxies (as in the cases of couples that managed to agree on joint physical custody despite obstacles set by the legal and therapeutic professionals; see Hacker, Reference Hacker2005). The place and role of clients might not be a ‘position’ in the classic Bourdieusian sense, but they must be studied and analysed if we seek to truly grasp the legal field in action.Footnote ¹⁷

This conception of clients’ important influence on legal action notwithstanding, my study supports the stance attributing greater power to lawyers (see e.g. Erlanger et al., Reference Erlanger, Chambliss and Melli1987; Griffths, 1986; Sarat and Felstiner, Reference Sarat and Felstiner1995), as compared to the parties (Cavanagh and Rhode, Reference Cavanagh and Rhode1976; Cain, Reference Cain1979; Jacob, Reference Jacob1992), in shaping agreements. Regression analysis revealed that not only are lawyers more influential than the economic class of parties in determining legal custody and visitation terms, they also wield greater influence than the courts (see Appendices E and F). As we saw, however, this power is most prominent and pronounced in cases that do not reach the stage of judicial determination. In contrast, when a consensual agreement cannot be forged and the parties resort to judicial ruling, not only does the power of judges emerge, as discussed earlier, but also the power of therapeutic professionals increases, as discussed next.

Therapeutic professionals

Bourdieu’s analysis of the legal field also omitted any mention of the presence of non-legal professionals in the legal field. In many areas of law, including family law, non-legal professionals participate in the action in the legal field, and understanding their place within the field is crucial. This section presents and discusses the reciprocal relations between these professionals and judges, who mutually enhance each other’s power as producers of legal-therapeutic truth.

From the study, it emerged that therapeutic professionals are involved in the legal field in a variety of ways in the context of divorce. All interviewed divorcees reported that at least one therapeutic professional had been involved in their divorce process. This included a psychologist helping the spouses reach a decision on whether to divorce or their child cope with their decision to divorce, and a social worker, either court-appointed or to whom the family had turned of its own initiative, to arrange for state financial assistance, family evaluation or mediation. It should be noted that intensive involvement of therapeutic professionals such as consultants, evaluators and mediators in divorce proceedings is not unique to Israel (Bowermaster, Reference Bowermaster2002).

The design of my study allowed for the investigation of the therapeutic professional’s role in divorce proceedings, especially in cases of conflict over custody or visitation. In these situations, social workers and psychologists wield particular power. As one interviewed lawyer admitted, it is extremely rare for either family court or rabbinical court judges to rule in a child-related dispute without first consulting a therapeutic professional:

The responses of other interviewees corroborated the claim that judges tend to follow the therapeutic recommendations. Such recommendations are influential even in conflicts that end in an agreement between the divorcing parents, rather than a judicial ruling. For example, in a case in which the mother was fighting the father’s demand for joint physical custody of their five-year-old son [M16], the bitter conflict was ended by a psycho-diagnostic evaluation that recommended joint custody, which led to the formulation of an agreement that included that arrangement. Indeed, in all of the twenty files studied in which a social worker gave a physical custody recommendation, the eventual arrangement, whether ordered by the court or included in a settlement agreement, incorporated the recommendation. In half of the twenty-two files that included a social worker’s recommendation regarding visitation, the arrangement was identical to what had been recommended, and in another four cases there was only minimal deviation. Similar findings to this effect have been reported for Israel (Gofna-Pinto, Reference Gofna-pinto1996; Frishtick and Adad, Reference Frishtic and Adad2001), as well as with regard to other countries (Levy, Reference Levy1986; Kunin, Ebbesen and Konecni, Reference Kunin, Ebbesen and Konecni1992). In addition, the data from my study indicated that there would be even greater court reliance on psychologists’ professional opinions were they less costly (the cost of a standard psychological family evaluation can amount to $3,000, which is borne in full by the parents), and on social workers’ opinions were they more available (their heavy case-loads often prevent them from timely submission of their opinions to the court).

A foremost explanation for judges’ readiness to request and adopt therapeutic recommendations is the predominance of the ‘best interest of the child’ criterion, discussed earlier. Custody and visitation decisions are not perceived by agents in the field as expressions of values and a balancing of contradicting interests, but rather as reflecting arrangements that benefit the child. The shared assumption of legal professionals, therapeutic professionals and divorcing parents alike is that such a decision calls for therapeutic, not legal, expertise. This perspective was expressed by the Head of the Family Court Assistance Unit, a social worker by profession:

This widespread conception in the legal field that therapeutic knowledge is indispensable to the resolution of custody and visitation disputes is one manifestation of the therapeutic discourse’s ascendancy in the twentieth century (Freeman, Reference Freeman, Eekelaar and Katz1984). This phenomenon is reflected in the popular notion that therapeutic professions can provide the answers to the most difficult personal questions and can devise solutions to the most complex social problems (Herman, Reference Herman1995, p. 1). This has led to radical proposals in different countries such as ‘the special judge’ model, under which a psychologist judge joins the legal judge in hearing custody cases, and the ‘behavioural panel’ model, under which custody disputes are decided by a panel of predominantly therapeutic professionals, aided by family lawyers (Jeffreys, Reference Jeffreys1986; Van Krieken, Reference Van krieken2004). Whereas these models were not adopted anywhere, the ‘caring court’ model has replaced the regular court in family matters in Israel, as well as in several other countries. This caring court includes an in-house therapeutic unit (like the Israeli Family Court Assistance Unit), which operates according to special procedures such as therapeutic evaluations and mediation that replace or at least weaken the dominance of adversarial procedures (Freeman, Reference Freeman, Eekelaar and Katz1984; Eldar, Reference Eldar and Giefman1998). Since the 1980s, however, as part of a wider crisis of confidence in the professions and their alleged ‘extraordinary knowledge’ (Schön, Reference Schön1983), questions have been raised in the scholarly literature regarding the therapeutic disciplines’ reliability and therapists’ capacity to foresee a child’s best interest following parental divorce. There have been three main prongs to this criticism: the limitations of therapeutic knowledge, information-gathering failures and the influence of the professional’s values on her or his therapeutic assessment.

The first line of argument is that there is no solid scientific foundation to the therapeutic profession’s claim to being able to determine the child’s best interest after divorce (Freeman, Reference Freeman, Eekelaar and Katz1984; Bowermaster, Reference Bowermaster2002). Almagor (Reference Almagor1999), of the Haifa University Psychology Department, has asserted, for example, that the current working tools at psychologists’ disposal are insufficient for identifying the preferable custodial parent, especially when neither parent shows the extreme features characterising parental dysfunction. Furthermore, it is difficult to assess a family on the basis of the parents’ behaviour during the crisis of divorce and in the shadow of a legal procedure, for the stressful conditions may sabotage the accuracy of the diagnosis. Moreover, the validity and reliability of the prevailing psycho-diagnostic methods are now being questioned, something that is particularly acute in Israel due to the inadequate adaptation of American tests to its social context. Indeed, contrary to the faith in psychological knowledge articulated by most of the interviewees in the study and the evident professional confidence amongst social workers interviewed, psychologists who participated in the study were sceptical about their professional capacity to perform the task entrusted to them by other agents in the divorce legal field. For example, in a seminar for family lawyers held by the Israel Bar Association, a prominent clinical psychologist stated, ‘All that a clinical psychologist knows is not enough for parental evaluation’.Footnote ¹⁸ Similarly, a psychologist who runs a clinic for parental evaluation that submits opinions to the court [M27], as well as a group of psychologists who work with families and the court and to whom I presented my findings,Footnote ¹⁹ all concurred that there are cases in which psycho-diagnostic tests are unable to predict the child’s best custodial option. Finally, these limitations are possibly further augmented by the debate within the discipline over parent–child relationships. Indeed, psychological theories and findings regarding parent–child relations after divorce vary extensively (for reviews, see Amato and Keith, Reference Amato and Keith1991; Hetherington, Bridges and Insabella, Reference Hetherington, Bridges and Insabella1998), with the result that therapeutic knowledge can justify a whole range of widely diverging and at times conflicting stances on the preferable legal rule for custody.Footnote ²⁰

In addition to questioning the essence of therapeutic knowledge, many also claim the information-gathering process in the therapeutic professions to be defective (Bowermaster, Reference Bowermaster2002) and others point to the impact of personal values on a therapeutic professional’s evaluations and recommendations (Fineman, Reference Fineman1988; Cohen and Segal-Engelchin, Reference Cohen and Segal-engelchin2000). These two other prongs of criticism are supported by the findings of studies conducted in Israel and elsewhere (Levy, Reference Levy1986; Sagi and Dvir, Reference Sagi and Dvir1993; Cohen and Segal-Engelchin, Reference Cohen and Segal-engelchin2000; Cohen and Shnit, Reference Cohen and Shnit2001). In my study, for example, a problematic information-gathering procedure emerged from the interview with the psychologist running the parental evaluation clinic [M27]. He explained that all tests and observations performed for the evaluation reports are conducted at the clinic and all the tasks the parents and their children are asked to do are indoor activities, such as drawing or assembling a jigsaw puzzle. My comment that these tasks might be biased in favour of mothers (Nielsen, Reference Nielsen1999, p. 148) came as an eye-opener for him:

One possible epistemological outcome of the above three points of criticism and supporting findings might be a radical demystification of therapeutic expertise and loss of faith in therapeutic professionals’ ability to produce any valuable knowledge. Schön (Reference Schön1983) offered a less radical epistemological alternative, which he called ‘reflective practice’. This perspective appreciates experts’ knowledge as of value, but at the same time understands it to be embedded with social context, human values and interests, and limited in situations of uncertainty, instability, uniqueness and conflict. While it is unlikely that any professional field, including the legal field, will adopt the radical demystification stance, which entails destruction of its own raison d’être, it is interesting that only the psychologists interviewed engaged in reflective practice, whereas the social workers and legal professionals were almost unanimous in their confidence in the therapeutic ability to produce the truth regarding children’s best interests in divorce.

It would be reasonable to assume that custody disputes, with their adversarial nature, would lead to the infiltration of criticism of therapeutic ways of knowing into the legal field. However, this has not been the case. An interesting observation on this matter was made by a lawyer familiar with both the legal field governing divorce and the legal field governing criminal proceedings:

Indeed, the study revealed different means by which the legal field governing divorce, unlike its criminal counterpart, promotes acceptance of the reliability of therapeutic knowledge and successfully silences potential challenges. Formal law encourages judges deliberating custody disputes to rely on therapeutic professionals as producers of truth. Unlike criminal procedures involving therapeutic evaluations, where the parties turn to different experts for opinions on their behalf, the Family Courts Law stipulates that when the court appoints an expert, the parties can submit expert opinions only with the court’s permission.Footnote ²¹ In practice, only in very rare cases does the court grant both parties permission to submit separate reports and, in the vast majority of cases, only the court-appointed expert, perceived to be objective, submits an opinion. The fact that a judge will generally find herself weighing contradictory recommendations when the parties are allowed to submit separate therapeutic opinions has not been recognised by agents in the field as proof that there is no single therapeutic truth, but, rather, is regarded as an obstacle to be overcome by appointing a single and allegedly neutral expert.

In addition to this formal legal preference for one expert opinion in family matters, there is a tendency on the part of lawyers and judges to refrain from questioning the opinion of the court-appointed expert. One lawyer interviewed criticised judges for not interrogating experts on their testimony [M10]; and as if in response, a family court judge speaking at the Israel Bar Association seminar for family lawyers pointed a finger at lawyers for not challenging expert opinions and testimony. The judge also noted that rarely do lawyers contest an expert’s appointment by inquiring into his or her field of expertise, professional experience or previous opinions, even though this would reveal a great deal about the content of the forthcoming opinion.Footnote ²²

The interviewed psychologist who runs a clinic for parental evaluation and who testifies as an expert witness in family and criminal proceedings offered an interesting insight into what transpires during expert testimony in the framework of the two different procedures. Whereas testifying in a criminal procedure can be ‘terribly hard’ and ‘a bummer’, he recounted, he gets ‘lots of protection from the judge’ in divorce procedures, which prevents lawyers ‘from bothering you with irrelevant matters’ and ‘abusing you’ [M27]. Indeed, at the above-mentioned seminar, one lawyer confirmed that, in family matters, lawyers feel pressured by judges not to interrogate court-appointed therapeutic professionals; moreover, she stated, they also refrain from doing so partially in fear of alienating the expert in the event that he is asked to submit another opinion during the course of the same proceedings. With such negligible cross-examination of therapeutic professionals and questioning of their opinions, it should come as no surprise that very few in the field are aware of the arguments and findings that can shake the validity and reliability of therapeutic knowledge and opinions.

A possible explanation for the prevailing policy in the legal field governing divorce of silencing any criticism of therapeutic knowledge is the emotional difficulty entailed for judges deciding custody cases and their desire to transfer responsibility for this sensitive matter to others (Levy, Reference Levy1986). Similarly, this policy may be a product of judges’ desire to pass the burden of hearing witnesses testify, such as family members or teachers, to therapeutic professionals, a time-consuming (Bowermaster, Reference Bowermaster2002) as well as emotionally draining task. Yet these reasonable explanations notwithstanding, my study findings support a more Bourdieusian explanation, which points to an exchange of capital between the two professions. Indeed, interviews and discussions with psychologists revealed that they are aware of their contribution to the construction of therapeutic opinions as truth, mainly through the consistently clear-cut opinions they produce even in cases where their professional judgment warrants ambivalence. One of the psychologists from the group to whom I presented my findings told me of the ‘demand from below for the truth, from parents, social workers, courts’. This demand creates a dilemma, she added: ‘Should we add to the confusion of the parents or act as though we really do hold the truth?’ Other psychologists in the group remarked that they are aware of the limitations of psychological knowledge but feel they must supply ‘answers’ to families who want ‘someone to tell them what’s right’ and thereby help end the destructive family conflict. The psychologist director of the parental evaluation clinic conceded that ‘we too rarely admit that we are ignorant. Much too rarely.’ He went on to explain that in cases in which the diagnosis does not produce a clear-cut opinion, the report submitted to the court represents ‘a compromise’, in the framework of which the therapeutic team nevertheless tries to offer a solution. When I asked why, in such cases, the team refrains from telling the court that no clear conclusion emerged, he revealed the economic context in which private therapeutic experts operate:

Thus, both the desire to help families end the conflict and their interest in earning a living and being indispensable to judges push therapeutic professionals into submitting more conclusive opinions than would be produced were they totally to adhere to professional judgment and ethics.

In his critique of judicial reliance on therapeutic professionals, Michael Freeman (Reference Freeman, Eekelaar and Katz1984, p. 13) coined the term ‘the professional mystique’. My findings demonstrate that this ‘mystique’ is created by the very factors that give therapeutic opinions central, if not solely determinative, weight in custody disputes: the prevailing belief in therapeutic knowledge; the formal legal constraints that prescribe a preference for the submission of only one expert opinion; the reluctance of judges and lawyers to cross-examine therapeutic professionals; and the moral and economic pressure brought to bear on these professionals. And as we saw, this ‘professional mystique’ is far more potent in the legal field governing divorce than in that governing criminal procedure, suggesting that different sets of internal logic and power relations exist within different legal subfields. Yet this notwithstanding, the action in the divorce legal field reveals that even in this sphere, the therapeutic ascendancy is only partial and achieved at a substantial price. As described by the psychologists who participated in my study, their work is shaped by the adversarial legal logic that demands ‘black and white’ opinions, and this sometimes is at odds with the therapeutic logic, which acknowledges the complexities and dynamic nature of families. Here we find a compelling illustration of Bourdieu’s claim of the social fields’ power to subordinate agents within their boundaries to their logic.

The success of the legal field in subordinating the work of therapeutic professionals to its logic, on the one hand, and the existence of a regime of truth (Foucault, Reference Foucault and Colin1980, p. 131) under which therapeutic professionals are the sole bearers of truth regarding children’s best interests, on the other hand, highlight the weaknesses of a polar conception of the power relations between the legal and therapeutic discourses within the legal field. King (Reference King1991) argued that the legal discourse has enslaved the therapeutic discourse and forces therapeutic professionals, constructed as ‘experts’, to adapt to judicial reasoning and needs. The dominance of the legal discourse is manifested, according to King, in the production of therapeutic opinions characterised by a decisiveness that would never materialise were the professionals to adhere to the therapeutic discourse. In response, James (Reference James1992) maintained that the courts’ need for therapeutic opinions, therapeutic professionals’ autonomy vis-à-vis the contents of their opinions and the adoption of these opinions by judges, all attest to the fact that it is the legal discourse that is subordinated to the therapeutic discourse and not the other way around.

My study, for its part, uncovered empirical data that point to complex relations between the two discourses and seems to negate accepting any unidirectional conception of those relations. The study findings indicate that relations of a ‘give-and-take’ nature prevail, even if unconsciously or unintentionally, between the judicial bench and therapeutic professionals. Judges grant symbolic and economic capital (i.e. recognition and income) to therapeutic professionals in return for unambiguous opinions, even if those opinions are not fully consistent with the experts’ professional judgment and ethics. These opinions, in turn, facilitate judicial rulings in custody disputes and imbue these rulings with scientific legitimacy, thereby increasing the judicial position’s symbolic capital (see also Raitt and Zeedyk, Reference Raitt and Zeedyk2000, p. 27). It is therefore futile to argue which discourse is subordinated to which. A more productive endeavour would be an attempt to expose the web of interdependencies linking legal and therapeutic professional positions within the legal field.

Finally, there is also a competitive dimension to the relationship between legal and therapeutic professionals within the legal field. This is revealed in the analysis of the introduction of mediation into the field governing divorce.

Mediation

In Israel, as elsewhere, the perception that mediation is highly suited to divorce disputes has gained widespread acceptance in recent years. Mediation – a procedure in which a neutral third party assists two parties in conflict arrive at mutual consent – is regarded as especially appropriate for parental marriage dissolution, due to the parties’ particular need to clarify feelings in order to reach an understanding, as well as to establish a new kind of relationship that will enable them to maintain relations with their children (Deutch, Reference Deutch1998; Zaidel, Reference Zaidel2001). Advocates of mediation claim that it empowers parents by helping them create new communication channels and allowing them to shape an agreement autonomously (Zaidel, Reference Zaidel1988); in addition, some assert, the procedure saves family and state resources (Pearson and Thoennes, Reference Pearson, Thoennes, Jay and Ann1988) and leads to a quick resolution of disputes (Jeffreys, Reference Jeffreys1986). Alternative views, which have yet to penetrate the dominant discourse, criticise divorce mediation for being detrimental to women (Grillo, Reference Grillo1991), for failing to conserve resources or improve parental communication (Walker, Reference Walker and Mackie1991) and for the lack of neutrality on the part of mediators alongside their ability to substantially effect outcomes (Fineman, Reference Fineman1988; Walker, Reference Walker and Mackie1991; Dingwall, Reference Dingwall, Robert and John1988; Beck and Sales, Reference Beck and Sales2000).

Many countries have established state mediation services for divorcing couples, and in some jurisdictions mediation is a mandatory precondition for petitioning the court (Irving and Benjamin, Reference Irving and Benjamin1995; James, Reference James1995). These state measures have been accompanied by a professionalisation process, which has included the creation of mediation training institutions, professional mediation journals and a professional code of ethics (Irving and Benjamin, Reference Irving and Benjamin1995). Though mediation is not a compulsory procedure for divorcing couples in Israel, serious attempts have been made in recent years to integrate the practice into the divorce field. In-house Family Court Mediation Units have been established, while judges are also provided with lists of private mediators qualified to mediate family disputes. Under Ministry of Justice regulations, only lawyers and therapeutic professionals who have participated in a special family mediation course may be registered on these lists.Footnote ²³ Thus, not surprisingly, many family mediation training institutions have sprung up across the country, where lawyers, psychologists, social workers and educational advisors qualify to become family mediators.

Unfortunately, there is no accurate up-to-date data on the current extent of divorce mediation in Israeli divorce procedures. However, data from recent years show that mediation has not become common practice in divorce. Only in eleven of the 360 cases examined in my study, for example, was there any mention of mediator involvement in formulating the agreement. Moreover, no mediation mechanism has been instituted in the rabbinical court system, the result being that parties resorting to its courts are unaware of this option. In the framework of family court proceedings, judges have encountered significant difficulties when referring parties to mediation. For example, in 2001, 71 percent of the cases sent to private out-of-court mediation and 40 percent of those directed to the Family Court Mediation Unit returned to court without agreement.Footnote ²⁴

The reasons mentioned by interviewees for the relatively poor integration of mediation into divorce proceedings can be classified into three categories: factors related to the emerging profession of mediation, to the divorcees themselves and to their lawyers. With regard to the profession itself, the claim is that mediation suffers from a rather unprestigious reputation due to a dearth of good mediators, the entry of charlatans into the profession, the potential for one party to exploit the process and use it against the other, and the lack of any clear rules on confidentiality and fees. With regard to the divorcees, some interviewees argued that not enough people are informed of the option in due time and, in any event, few are interested in mediation. As one therapeutic mediator explained:

These precise problems could be the impetus behind the recent government draft bill, following in the footsteps of several other countries (Dunnigan, Reference Dunnigan2003, ftn 3), to implement mandatory mediation in Israeli family and religious courts,Footnote ²⁵ which would be unnecessary were people to seek it of their own initiative. Indeed, studies show that, given the choice, most divorcing couples would not turn to mediation (Beck and Sales, Reference Beck and Sales2000, pp. 994–95; Emery and Wyer, Reference Emery and Wyer1987).

A third category of factors suggested in interviews for the unpopularity of mediation focused on the divorce lawyers. One judge argued that lawyers raise their clients’ expectations regarding the outcome of the legal procedure and pressure them to be unyielding in the mediation process, which obviously sabotages the mediation. He added that lawyers’ preference for litigation is motivated by the high fees they can then charge [M3]. In fact, my study confirmed that lawyers do, indeed, play an important role in preventing the proliferation of mediation, but for far more significant reasons than those mentioned by the judge. Indeed, it arose that the crucial obstacle preventing the development of mediation as a separate and powerful professional position within the divorce legal field is the competition between the legal and therapeutic professionals over its control. Each profession attempts to establish itself as best qualified to conduct mediation. In the first issue of its mediation journal, the Israel Bar Association declared that ‘it is impossible to hold a mediation process without a lawyer as mediator’ and stressed that the Bar’s Mediation Institute refers people exclusively to mediation conducted by lawyers.Footnote ²⁶ This expresses what seems to be a flagrant lack of confidence in therapeutic professionals, in complete contrast to the trust legal professionals place in them in the context of custody and visitation evaluation. Yet at the same time, therapeutic professionals exhibit a similar distrust of lawyers as mediators. One interviewed therapeutic mediator who has taught lawyers, amongst others, in mediation training courses noted:

Apparently, lawyers and therapists disagree not only on which of the professions deserves a monopoly over the mediation market, but also on the very essence of mediation. Several interviewed lawyers asserted that they regularly conduct mediation in their offices, in the framework of their work as representatives of one or both parties. For example, one such lawyer stated:

One of Israel’s mediation pioneers and a social worker by training, who was interviewed for the study, disputed such claims made by lawyers, that they were conducting mediation long before the term was coined: ‘They did not. They arranged agreements and helped people reach agreements. But they did not mediate’ [F42]. Another leading mediator, a lawyer by training, has echoed this stance, contrasting what transpires in a lawyer’s office with what happens in mediation as follows:

By including in the definition of mediation, negotiations between lawyers and their assistance in shaping settlements, lawyers in fact reject the need to refer clients to a neutral mediator and, in particular, to a therapeutic mediator. This is how the legal profession preserves its standing as conflict manager in divorce and minimises the significance of other professionals as mediators (see also Bogoch and Halperin-Kaddari, Reference Bogoch and Halperin-kaddari2007).

Largely due to the characteristics of divorce mediation, even when conducted by a therapist, lawyers appear to be relatively successful in downplaying the differences between the kind of negotiations in which they are involved and mediation conducted by therapeutic professionals. Interviews with therapeutic mediators revealed that, in most cases, mediation involves only a small number of sessions, which focus on reaching an agreement between the two sides. Their explanation for the relative prevalence of speedy evaluative mediation and infrequency of broad and facilitative mediations (Riskin, Reference Riskin2003) returns to the fact that people do not choose mediation to begin with. Divorcing couples want to reach an understanding quickly so that they can go their separate ways. This is not unique to Israel. Therapeutic mediation in other countries, especially if a state service, also tends to be brief and focused (Pearson and Thoennes, Reference Pearson, Thoennes, Jay and Ann1988, p. 432). Thus, the communication difficulties between separating spouses and the desire to end the divorce process quickly combine to structure divorce mediation as a process resembling the negotiations regularly conducted by divorce lawyers.

Despite – or perhaps due to – this resemblance, the scholarly literature is fraught with the tension between the two professions over how mediation should be conducted. Therapeutic mediators are accused of being ignorant of the legal and economic aspects of divorce while legal mediators are accused of obtuseness in respect to all its emotional aspects (Emery and Wyer, Reference Emery and Wyer1987). Nolan-Haley (Reference Nolan-haley2002) has argued that the interest of lawyers in preserving the monopoly the law has granted them and in excluding other non-legal professions from the legal field prevents the profession of mediation from developing. Fineman (Reference Fineman1988), by contrast, has attacked therapeutic professionals for the political change they have generated by transforming divorce from a legal event that concludes conjugal relations into an emotional event that re-establishes the family, a transformation that gives therapists priority as divorce mediators.

As a relatively new element in Israel’s divorce field, it is premature to evaluate the ramifications of the mediation procedure in this context. Still, it is already evident that the current struggle between lawyers and therapists over mediation in the Israeli legal field governing divorce is much more than a competition over the economic capital that is attached to it. Rather, it is a struggle over the legal field’s boundaries, its positions and prizes. If divorce is about clarifying feelings and empowering the parties by helping them to establish new lines of communication and to shape an agreement autonomously, as therapeutic mediators claim, then what has the law got to do with it? Either divorce should shift to the therapeutic field or the divorce legal field should transform itself. Clearly, this conception of divorce does not correlate with Bourdieu’s perception of the legal field as organised around legal professionals who struggle over the interpretation of legal texts. Moreover, divorce thus conceived is a far cry even from the out-of-court negotiations managed by lawyers and their understanding of their professional role and identity. In contrast to brief, narrow and focused mediation, which is similar enough to lawyers’ everyday experiences for them to claim they are mediators and incorporate the new agenda into the field, broad, enabling and emotional mediation is a heterodoxy that places in complete jeopardy the legal field’s rules of the game.

In this context, the difference in perspective between lawyers and judges is noteworthy. Judges seem not only to be unthreatened by mediation, but also represent a major force in injecting the practice into the legal field of divorce. One possible explanation is that their position is not vulnerable to mediation since all divorce cases, even those settled by therapeutic mediation, eventually undergo judicial review. Another possible explanation relates to the fact that judges simultaneously belong to the judicial field and constitute a state organ. Unlike private lawyers, who are not directly guided by the state’s logic, judges are part of the political and bureaucratic meta-field. If the state has an interest in mediation, be it the facilitation of cheap and efficient management of divorce, isomorphic imitation of mediation policies in other states or whatever other motivation, judges are likely to identify with that interest. And finally, a third possible explanation for judges’ compliance with the new mediation discourse is the relative current weakness of therapeutic mediation within the field. If therapeutic mediation were to gain momentum and undermine the notion that divorce should be governed by the legal field or, alternatively, mandate a change in the legal field’s logic itself, family court and rabbinical court judges could conceivably join forces with lawyers in their struggle to preserve the field’s orthodoxy and to exclude therapeutic mediation from divorce procedures.