Divorce Law Monitor

Finding Alternatives to Litigation

October 17, 2017


If you read this blog, you probably know that I am a huge proponent of negotiating settlements in divorce cases. As an attorney who has spent her career in divorce litigation, I know firsthand the costs associated with bringing a case to trial, and the devastation that trial can leave in its wake. But convincing parties who are angry and have hurt one another to compromise is no small feat.

The length of time and expenses involved with litigation can, therefore, encourage parties to become more reasonable. In some instances, one of the parties may be truly unable to recognize that compromise is in his or her best interest. But in others, a letter from counsel, laying out the realities of the various choices available and asking the client to sign off on the unreasonable negotiating position he or she is forcing their attorney to take, can break the logjam. (There are also times that intractable issues exist that must be tried; however, that is very rare.) A lot of cases settle on the eve of trial, which is horrifically expensive. Over the years, innumerable judges have told me that the best divorce agreements leave both sides unhappy. I am afraid that is true.

One thing your attorney needs to assess fairly close to the beginning of your case is which negotiation strategy the other side is going to employ. I think there are generally two models for this.

One is the Mediterranean model, in which the parties both begin at extreme positions and need to be moved, at what can feel like a glacial pace, to the area of reasonable compromise. The other is the Scandinavian model, whereby both sides start out within a cone of reason and work through their issues to a reasonable compromise. Both of these approaches are workable, but things become much more difficult if both strategies are in play simultaneously.

Often, the addition of a respected third party—the mediator—can help bring people together. In most litigated cases, lawyers should be involved in the mediation proceedings. Lawyers are human and have biases, too, and sometimes their positions may be different from what the client feels comfortable accepting. A good mediator can usually tease this out.

Mediation is not suitable, however, in cases of domestic abuse. It requires a relatively equal playing field between the parties, and this is generally not possible when violence has occurred. If you are embarking on the divorce process, a good question for the attorneys you interview is what they think about mediation, and how they would plan to use it for you.

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