On many occasions clients approach me with this situation:
my spouse and I have been trying to work on our marriage. Things are going south. We have been discussing separating or even divorcing but my spouse’s ideas are crazy. It is clear we cannot work together so I am going to have to get an attorney.
This settle or litigate mindset can really get in the way of using experienced family law attorneys and professionals to help you work through your situation without escalating to litigation. While I can understand the frustration and helplessness of the spouses when they simply cannot move forward, this is where it is so important to take a step back, stop talking, and think about how professionals can help you. There are a growing number of attorneys who work outside the litigation process to help couples make decisions about how to move forward in their situation. In fact, even when your spouse has filed for divorce, instead of immediately filing an answer, your attorney can instead contact the spouse’s attorney and determine whether they can agree to put the case on hold and work through mediation or settlement negotiations to seek resolution of the situation. In fact, I have done this for a number of clients and the majority of those cases have resolved and only a very few of them have returned to litigation and then, quite frankly, it did not take long for the case to resolve.
In my mind, the number one reason a case will return to litigation is that the spouse retains an attorney who usually just does not know how to transition from a litigative mindset to a collaborative mindset. It is a very difficult thing to do for most attorneys. We see ourselves and others see us as “winners” or “losers.” To be anything else is to be weak and ineffective. The “good” lawyers are ones who win. So how does that play out in real life? Well, let me tell you because I have lived it.
You and opposing counsel have agreed to exchange all the discovery and work through settlement negotiations and mediation. The group attends mediation and some issues arise that do not settle that day. There is conflict. You receive a letter the next day from opposing counsel stating that his/her client has tried to work through this process amicably but clearly there is no intention to do so. We cannot continue to negotiate under these circumstances. You have 10 days to accept the offer or we will go ahead and file a motion, blah blah blah.
What is so important in collaborative cases and even mediated or negotiated ones, is a basic understanding of several components:
1. There will be conflict
2. Conflict is not to be feared
3. Getting to the heart of it is important
4. Time can do wonders as can addressing other issues in the meantime
5. Determining whether other professionals can help
6. Gaining client control in a way that helps him/her carefully analyze what is happening before jumping into threats and ending the process.
As I said previously, there are cases where litigation may become necessary. Boundaries must be drawn, unreasonableness is governing, kids safety is at issue, etc. But for so many conflicts within divorce, it is more about control, revenge, fear that is driving the need to threaten. It takes courage for the attorney to point that out to the client, it takes strength and fortitude and patience to discuss with your client what is reasonable and sort of expect them to explain why they want things to be unreasonable and to seriously reality check them on their ideas. These are hard, uncomfortable discussions which must be had. Shying away from them allows the spouses to live in the fantasy world they have each created to support their “positions.” Some attorneys are just too busy to do this. Others just do not want to get involved that way. I get it. But this is YOUR life. Realize you can actually grow and become a better person through a more wrenching, truthful process.
There are more and more attorneys like me who are trying to work with families outside litigation. Here is an article by an attorney in Coral Gables. When I read it, it reminded me of situations I have been in and how I approach my practice. Worth the read.