Thursday, June 23, 2011

Where is the "Win" in Divorce Litigation?

Celebrity divorces make headlines, but most divorcees aren’t celebrities. They are everyday people in a tough place emotionally.  They work hard, love their kids and want to be involved in their lives.  They have a mortgage, a few credit cards, a car note and limited resources to meet their obligations. They are distrustful, hurt and scared. They need encouragement, guidance and counsel. They want reassurance, security and closure.  And they want it quickly and inexpensively.

Divorcees need to vent anger and tell their story.  Society tells them to go to court and take a pound of flesh.  The focus is on “winning.”  But when a divorcee thinks she spent a fortune on a lawyer and didn’t get what she wanted, the client blames the lawyer who worked hard and gave her that day in court.  Who won? 

As a mediator, I work with everyday people and their lawyers in divorce cases.  Most lawyers recognize that a judge making decisions for their clients is typically not the best solution.  However, it is difficult for clients to hear that compromise is a must to reach a mutually fair result.  Often, the “let’s try the case” approach wins out. Litigating a divorce can increase the pressure for divorcees - sitting in the courthouse the day of trial, facing two options: 1) engaging in fast moving settlement talks, then signing a fill-in-the-blank agreement to address the most important aspects of their lives or 2) Having a third party, a judge, make the final call on a deeply personal matter that becomes public record.  No wonder divorce clients are frequently dissatisfied!

Our local court backlogs intensify these frustrations for clients and attorneys:

Client - Why is this taking so long?  Everyone is dragging their feet.  Why do they need all these documents?  Do I have to answer all these questions?  All I want is to get this over with and move on.  The lawyers are running up fees.  The judge doesn’t get it.  This is awful.  I’m wasting time and money and getting nowhere.

Lawyer - I did everything in my power. I questioned the other side extensively.  During the many months we waited for trial, I subpoenaed cell phone records, bank statements, and the kids’ teachers.  I spent several days preparing for trial and tried the case.  Now my client isn’t happy and doesn’t want to pay my bill.  You can’t win with divorcees – they are never happy.

Divorcees should be proactive in researching their options to reach an agreement that provides closure and a foundation for moving forward. When the parties walk away with more anger and frustration, a court order nobody thinks is fair and distaste for the lawyers who have worked hard on their behalf, nobody wins. 

Statistics show that couples who collaborate to resolve their divorces have greater satisfaction with the process and are more likely to abide by the terms of an agreement they helped shape. Resolution is reached quickly and with less expense than waiting for a trial – especially with courthouse budget cuts.  Divorcing couples need to explore all options - not just on the best strategy for “winning” at trial. Mediation allows individual stories to be told, needs expressed, and outcomes shaped confidentially (no dirty laundry is aired on the record). With patience, compromise and hard work, divorcees can reach results that are right for them and their family.

Saving time and money, bringing closure while preserving dignity, maintaining civility, and resolving hostility is where the “win” really lies.

No comments:

Post a Comment