Why Running To Court And Refusing Divorce Mediation Is A Bad Idea

C. Sean Stephens had an excellent post this week in his Collaborative Divorce Northwest Blog about how the strategy of rushing into court to get a ruling on issues such as custody, possession schedules, support, etc. may be ill-advised. Not only is this blog one of the few dealing primarily with Collaborative Law issues, but it is always interesting and well written. This post gives the perfect example of how an attorney can misread a case, with bad results for their client, when a settlement process (here, mediation) before the hearing could have provided for an acceptable arrangement for both parties. Here's what he had to say:

"Sometimes negative examples drive home the benefits of collaborative practice the most. At Stephens Margolin P.C. we help clients with both traditional litigation cases and collaborative cases. As an Oregon lawyer practicing only family law, I frequently borrow from my collaborative law skills when working on traditional cases. The traditional side of our practice frequently reminds me of the benefits of collaborative law and the flaws in traditional practice. In our traditional cases, we usually attempt a four way style meeting and mediation prior to entering a courtroom.

"I recently made an appearance in a county which allows for hearings on temporary custody and parenting time before the parties mediate. The opposing attorney had filed for temporary custody without asking for mediation. I asked the other lawyer to mediate to see what we could work out prior to using the court’s time, but they refused. I would have been happy to have a four way meeting in our conference room and talk about some creative solutions, but they refused. Rather than mediate or negotiate, a hearing was held at the other lawyer’s insistence. The result was substantially worse for the moving party than they expected. Rather than a cooperative solution being reached voluntarily, the court imposed a decision on the parties that was harmful to the moving party.

"Refusing mediation or a face to face meeting was an enormous strategic mistake for the other lawyer. A more collaborative approach would have left the other lawyer with a happier client vs. a miserable client, and a better outcome."

Here in Tarrant County, we rarely do mediation before a temporary hearing, although it is done in some cases. (We tend to rely on mediation more for final orders.) There certainly can be a benefit to trying mediation before going to court any time. Even without mediation, it's usually a good idea to make every effort to come to an agreement before you go to court.

Sometimes, however, a party or attorney will come to believe that the facts of the case are all on their side and that they shouldn't waste time negotiating. I consider that sort of an old fashioned attitude. It's great to be confident, but you really lose control of the case when you turn it over to a judge to make a decision. It's always a gamble. Sometimes it pays off, but sometimes it doesn't. With high expectations of a favorable result, it can be devastating to a party if the judge picks up on something unexpectedly and rules the "wrong way"!

Sean is a Collaborative lawyer and like many Collaborative lawyers in Texas, he tends to use a Collaborative approach even in non-Collaborative cases. Usually, that is an effective approach. Parties should never approach a court hearing overconfident, because they are likely to be disappointed. A lot of heartache and anger can be avoided if the parties and attorneys will make a genuine effort to settle before they take a chance in court.

Recipe for a Happy Divorce

In looking around the blogosphere recently, I ran across an uplifting blog post by Marie Fahnert, a Chicago divorce lawyer. She provides a "Recipe for a Happy Divorce". While no one can guarantee the outcome of a divorce, or even how the process will work out, she presents some points that strike me as eminently do-able, even if they would take some effort. I believe that if people going through a divorce gave her approach a try, they would have a much better experience going through a divorce.

Here's what Marie had to say:

"Maintaining happiness (or some semblance of it) through your divorce might not be as difficult as you think. According to scientists, the following things make us happy:

1. Virtues: Our sense of wisdom, justice, compassion for others,
2. Gratitude: Appreciating what we have and expressing it to ourselves and others,
3. Savoring: Enjoying the moment and taking time to smell the roses,
4. Engagement: Being in our activities for the experience of it ("being in the zone"),
5. Living a meaningful life: Doing things for others and helping others.

"Studies of the Danish (the happiest people on earth) show that low expectations also make us happy. If our expectations are low, then we become happy when things go unexpectedly well. Also, Denmark's social safety net ensures people the basic necessities of life.

"How can you go through a "happy" divorce?

1. Remember that you are in control of the things that make you happy (see 1-5 above).
2. Approach the divorce—and the associated child-custody, division of property, maintenance issues—with realistic expectations.
3. Reach an agreement with your spouse and litigate as few things as possible. This will save you money and—like the Danish—you won't have to worry about the basic necessities of life."

This post is very timely because I always notice an increase in filings for divorce just after the first of the year. For various reasons, people put off filing until after the holidays, and then the divorce season gets into full swing. If you or someone you know is facing a divorce, please take the time to incorporate Marie's ideas into your life. Divorce is naturally stressful and unpleasant. If you can reduce that unpleasantness, your efforts will be well rewarded.

Should You Hire a Collaborative Lawyer for a Case in Litigation?

An issue that comes up all the time is whether a Collaborative lawyer can or will handle non-Collaborative cases. For me, the answer is yes. Some people just assume that a Collaborative lawyer will no longer participate in litigation. That is true for some attorneys, but (at this point in time) all Tarrant County divorce lawyers who are trained in Collaborative Law still handle litigation, and that is true of most Collaborative attorneys in Texas. You can just ask an attorney if you wonder about it.

A related issue is whether it is advisable to hire a Collaborative lawyer to handle a litigation divorce. Some people may have a vague fear that a Collaborative lawyer would be unprepared, uncomfortable or unable to function in a litigated case. That is a misplaced fear. Actually, the main difference is that Collaborative attorneys have extra training and experience in negotiating that some litigation attorneys don't have. Which leads to the question: How are the extra training and experience an advantage in litigation?

Let preface my answer by briefly explaining how Tarrant County divorces work, which is essentially how they occur in many of the other counties in Texas. In a litigated divorce, here are the basic steps that are commonly followed:

• One party files for divorce, gets a restraining order signed by the judge and then gets a temporary hearing scheduled. It is usually set 10-14 days after the filing date so that there is time to get the other party served with papers.

• The other party receives the papers, usually from a process server. The papers are a petition for divorce, restraining order and notice of the hearing. There will be a citation explaining the need to respond to the petition.

• If there's enough time, the two sides will sometimes negotiate before going to court to start to work out temporary or interim orders.
  

• Both parties appear at court on the appointed date. They, or their attorneys, negotiate. Although the event is called a "Temporary Hearing", there usually isn't a hearing. Cases are usually set at 8:30 or 9:00 a.m. and often the parties spend all morning at the courthouse negotiating.
  

• Negotiations can involve meetings with the judge and occasionally end in a bench conference with the judge, attorneys and parties. Even then, usually, most issues have been resolved before the conference begins and the attorneys usually only submit a few issues. Sometimes, there are negotiations in the judge's office with just the attorneys and judge present.

• After the judge decides or gives suggestions or an advisory opinion, there's often more negotiations to iron out the inevitable few remaining details.

• Temporary orders are drawn up and signed.

• The parties then begin to gather and exchange information, either informally (sometimes) or through the formal "discovery" process. In discovery, written requests for information are sent to the other party that require that other party to produce various and extensive types of information to each other.
  

• A trial date is usually set about this time, often many months away. Before the trial date, virtually every court requires mediation in almost every case. Mediation is not attempted only in the most unusual circumstances.

• Mediation occurs. It's usually either a half- or whole-day marathon in which all remaining issues in dispute in the divorce are to be resolved.

• Mediation usually works in around 90% or more of the cases. If it doesn't in a particular case, the case eventually goes to trial, although there's always the proverbial "courthouse steps" for final negotiations, and such negotiations are often successful.
  

You may have noticed that the common denominator in the above summary is the repeated occurrence of negotiations. The bottom line is that whether you end up in litigation (either by choice or otherwise) or Collaboration, you will be participating in negotiations.

Now, back to the question of the day: Should you hire a Collaborative lawyer for a non-Collaborative case? Here are some things to consider:

• Is there a good chemistry between you and the attorney?
• Does the attorney listen and communicate well?
  
• Can you afford the attorney?
• Does the attorney have the level of experience you require for your case?
• Is the attorney a Board Certified Specialist in Family Law?
  
• Is the attorney local and familiar with the judges and other attorneys?
• How would the attorney approach negotiations in your case?
  

Ultimately, you need to decide if there is good chemistry between you and your lawyer. If you don't feel good about how the attorney communicates or the strategy the attorney proposes, try another attorney. Even excellent attorneys are not always a good match for some people. And don't worry about hiring a Collaborative lawyer in a litigated case -- it may be one of the best decisions you have made.