I always tell participants in mediation that it is in their best interests to shape the outcome of their dispute – whether it is a civil lawsuit, contract dispute or a family law matter. I explain to the parties how they have the best resources – personal knowledge and information – that they can use to create the correct outcome. Information is the key to problem solving and the parties will always be in the best position to use the information available to them. I explain how despite all best efforts, their lawyers will never have as much information as they have, and that a judge or jury will have even less information on which to base a decision if they do not resolve it outside of the courtroom.
This point was driven home at a recent seminar I attended. A judge speaking as part of a panel on family law told the audience of more than 200 lawyers in attendance that in just about every case he has made up his mind on how he is going to rule within 45 minutes of testimony.
Let that sink in for a minute (or 45). The person who the parties are trusting to decide how they will co-parent their children, how their assets and debts will be divided, and how they will start off their lives post-divorce has made up his mind within 45 minutes of information starting to come his way. Now this judge did go on to say that he allows both sides to call witnesses even after the 45 minutes. However, he also said he typically limits the lawyers to a couple of hours maximum to present their case. But after that first 45 minutes, he has pretty well made up his mind on how he is going to rule.
Though I find the thought that this is how a judge makes his or her decisions completely offensive, I do appreciate this judge’s honesty. I have no doubt that this judge is the only one who looks at divorce cases (or most civil disputes for that matter) in this fashion. The courts are backlogged, their budgets are tighter than ever and the pressure to move cases through the system weighs heavily. 45 minutes may be the reality – but it is not what the parties deserve or expect when they have their “day in court.”
If “45 minutes” doesn’t convince parties and their lawyers to look at other options for resolving disputes, I don’t know what will. Parties have the goldmine of information available to them. They can best use it to shape their outcome – the correct outcome for their particular situation. Lawyers do their clients a disservice if they do not inform them about the reality facing them in trial and give them the opportunity to make an informed decision about the alternative avenues available to them for resolving their conflict. Parties need to keep control of their greatest tools – their knowledge and information – and use them to create the resolution that fits their needs.