Article by James D. Elshoff
"AIKIDO AND THE PRACTICE OF LAW"
Most Americans are familiar with the martial art of Karate. "Karate-do" literally means "empty hand way," or a way of fighting without weapons. Aikido is another martial art. It literally means the "way of blending with the force [of another]."
The differences are crucial: Karate is a fighting art. Aikido is the art of non-fighting. O’Sensei founded Aikido in an attempt to bring about world peace. On the mat, whereas a Karate practitioner will block, punch or kick the other person, an Aikido practitioner will attempt to blend with the other’s punch or kick, and put the other person down or resolve the conflict without injuring or killing him or her.
I have had great success in applying Aikido principles in my domestic relations practice. As you may be aware, in divorce work, stress is high, and the tendency is often great to fight for custody, or property, or just to seek revenge against other person for "all the evil things" they have done during the course of the relationship. However, we as professionals, we owe our clients our best efforts; that does not include agitating already high emotions. We owe them, if possible, a peaceful resolution to their conflict. For the past generation, the trend in Montana law has been toward settlement, rather than toward litigation. The Montana Supreme Court has admonished:
"The courts, including this Court, owe such litigants patient consideration, and their counsel owe them their ablest representation, in order that the fairest possible results in each case be achieved." In re the Marriage of Benjamin (1980), 189 Mont. 158, 162, 615 P.2d 218, 220.
Since 1986, appellate mediation has been mandatory in Montana prior to filing an appeal. In some counties, District Judges require mediation of all domestic relations cases. Many private attorneys have since opened up practices almost exclusively limited to mediation. Joint petitions (§§ 40-4-105 and 40-4-131, MCA), encourage amicable resolution. The 1997 Legislature all but eliminated our usage of the terms "custody" and "visitation," and replaced them with the term "parenting plan." As a result, no one can any longer "fight for custody," and litigation has decreased drastically.
Showing weakness to an animal may give it ascendency over you, but offering a peaceful resolution in a lawsuit does not evince a cowardly profile. To the contrary, it discloses a professional demeanor with high moral fiber. Litigate if you must, but settle if you can.
In a Karate tournament, you get points for each punch or kick to the opponent. In Aikido, there are no tournaments to attend nor points to be garnered. There is only knowledge, self-control, and a peaceful resolution of the conflict.
Neither is Aikido a religion. In a religion such as Christianity, there exists the concept of forgiveness of another’s trespasses. With Aikido, since there is no anger, there is no need for forgiveness. It is simply a blending with the emotion or the attack coming from another person, and a peaceful resolution of the conflict.
In the practice of domestic relations law, there is no requirement that one party forgive the other (although that’s not a bad idea). There is, however, the need for the parties to face each other in some forum, and hopefully the parties will achieve a peaceful resolution of the conflict. The Supreme Court has further admonished us attorneys:
"We condemn the use of the adversary system and the appellate process for bringing needless litigation or in frustrating the right of an opposing party to a timely hearing on the merits of his case...We remind the legal profession that the speedy and fair resolution of these problems must be uppermost in their minds. This is an area of the law where the adversary system does not lend itself too well to this objective." In re the Marriage of Billings (1980), 189 Mont. 520, 523, 616 P.2d 1104, 1105-6.
The application of Aikido and the concept of negotiated settlement are not unique to the practice of law; I use them in my daily life in many areas. I find that in utilizing those principles, my stress level is significantly lessened, my relationships are improved, and the results I seek are much more rewarding. Propose settlement, and resolve the conflict, and move forward. (Perhaps someday there will be a black belt award of sorts for attorneys who excel at case settlement!)
[J.D. Elshoff has practiced law in Montana since 1985, was the Vice-President of the Family Law Division of the State Bar, and served as Cascade County Justice of the Peace. He is also the author of the Montana Family Law Handbook and the Montana Criminal Law Casebook; and he has authored a video: "DIVORCE IN MONTANA — A Survival Guide." He additionally served as lay minister for his church (Disciples of Christ). He is a former Force Recon Marine, decorated for service in Vietnam. J.D. holds a 5th degree black belt in Taekwondo, 2nd degree black belt in Shorin-Ryu, and is currently training toward his black belt in Aikido. J.D. trained at the Martial Arts Center in Bozeman, Montana, for several years, and was also the "Web-Deshi" for that dojo’s home page: http://www.bozemanaikido.com. In 2003, he moved to San Marcos, TX, and trains when he can at the Hill Country Aikido / Chiisai Aikikai Dojo in Austin, under Leslie Libby Sensei.]