We believe that it is fair to say that most family law attorneys and mediators would rather see a case settle than go to litigation. There is a general belief that in most cases, litigation is a sign of failure to settle, but perhaps more importantly, there is a general belief that proceeding to litigation exacerbates and escalates the self-destructive process of a conflict-laden divorce. Lawyers, including Guardians ad litem,typically strongly encourage clients to settle. Judges typically like cases to settle, often because the judge is fully aware of the limitations of hearings to produce good solutions.
There are also economics involved. Clients face large bills if they do not settle, and attorneys face clients who refuse to pay those bills or who declare bankruptcy. Trial preparation is often, if not nearly always, difficult to bill for in the full amount. Expert witnesses have to be hired and paid. Friends, family, teachers, baby-sitters, neighbors, counselors and others have to be inconvenienced by being called to testify.
Most attorneys and mediators feel a sense of accomplishment when a case settles with a stipulation. Do most parties feel this sense of accomplishment or do they simply feel resigned? Rational clients appreciate saving the money involved in litigating and perhaps even saving the grief involved, but do they feel elated, or even satisfied?
For the professionals, settlement means the successful completion of a case. For the parties, it might mean having had to give-in, to compromise and to fail to get what they wanted? Many parties have been cajoled by their attorneys, scared of what the judge might do, been made to feel guilty because further conflict will hurt their children, told that their wishes are hopeless if tried, told that what seems “fair” is irrelevant – all to get the case settled. Is that a success?
All of this happens because of how “settlement” is defined in the traditional family law system. Fleshed out in much greater detail in our books,we point out how the Divorce Game is set up with rules that promote self-defeating behaviors and sub-optimal outcomes. Parties have their lives transformed into Zero Sum Games in which they compete for property, income and time with their children. It is assumed that the parties will have disputes. Parties establish positions unlikely to be identical, setting up a Win-Lose scenario. The parties and their attorneys weigh their case, gather information, including hiring experts that they believe will bolster their case and minimize the case of the “opposing counsel” and his or her client.the legal system traps people into competitive bargaining. [See the series – Ten Traps in the Family Law System]
All of this aims at the target – achieving desired legal outcomes: how will the property be divided; if and how will income be shared; who will have what authority to make decisions about children and on what schedule will the parents get to be parents with their children. All of this occurs in a legal system that has laws, rules and outcome standards that reflect the interests of the state and professionals more than the parties. We also pointed out that
In this context, what is the definition of settlement? Settlement is defined as the process of parties giving-in and not getting what they want, what they deserve and what they think is fair. People likely settle because being fairly unhappy is better than being very unhappy, and they just want to get it over with and try to move on.
However, some parties settle amicably, are generous with one another and focus more on their life after divorce than on the legal outcomes at the time of the divorce. Professionals and judges are usually delighted with these cases. They have decided to develop a Plan that works for them and, if they have children, for the family. Part of the Plan also includes the legal outcomes, but the focus is on the quality of their lives and their goals, not the day of the Judgment of Divorce. This is the good news!
Notwithstanding the above, there is a dark side to some parties who settle amicably. While they seem to be immune to the Traps of the traditional family law system, unfortunately and all too often, they view hiring attorneys as likely to get them off track. We say “unfortunately,” because we are convinced that hiring attorneys could enhance their Plan, but only if the attorneys redefine the meaning of settlement to mean focusing on the long-term goals of the parties and the quality of their family life post-divorce.
Ironically, a very different negotiation process can occur when professionals follow the lead of parties in amicable divorces. Parties in an amicable divorce make Plans. They do not begin with a physical custody schedule; they begin with how they each will be involved with the children, given the new family fact that they live in separate residences. They understand that they have to share information and make decisions together and assume that it will happen naturally or explicitly plan how they will do that. They assume that they will have flexibility and access to the children independent of any schedule for the children. They plan overnights based on logistics and the need of the children to have positive experiences in both homes. Almost as an afterthought, they work out a skeleton schedule of who will be primarily responsible for the children when, how they will share holidays, what procedures will be helpful to avoid vacation conflicts, and so on.
Amicable divorcing parties also develop a financial Plan for themselves, with the goal of both parties doing at least well-enough initially and with the goal of improving their financial positions in the future. They do not primarily focus on what is “equitable,” but more importantly what is needed to accomplish their goals. The division of property, debt and possibly income sharing is viewed in the context of what will leave them both doing at least “well-enough” in the short-term, and better as they move towards long-term goals.
If this is the focus of their attorneys, the attorneys can be very helpful in structuring the Plan, pointing out common pitfalls to avoid, providing solution ideas that the parties might not think of on their own, and so on. If the parties disagree about some aspect of the Plan, attorneys can help resolve those disagreements in a manner that optimizes the outcome for both parties. In the end, attorneys can prepare documents to submit to the Court that help the parties accomplish what they want to accomplish.
This new definition of “settlement” does not entail giving-in, but rather accepting the limits of reality (e.g., children cannot sleep in two homes at the same time; there is generally a fixed total of assets, debt and future income to allocate) and optimizing the outcome for both parties.
Here is the challenge: Most family law attorneys assume that the parties have a dispute. This is counter to the approach proposed by your authors. Because of the assumptions in the traditional family law system, if clients walk through the door with different positions on their legal outcomes, attorneys often regress to the competitive approach to reach legal outcomes instead of keeping the focus on long-term goals. It is easier to focus on developing a case strategy and a Plan to get the client what legal outcomes the client says he or she wants. However, this strategy is clearly not the best strategy for lawyers to follow.
Mary Whiteside and other researchers have estimated that about 20-30% of divorces fall into the category of high communication and cooperation, or in our terms, an amicable divorce. Likewise, she and others have estimated that high conflict and low communication and non-cooperative divorces, often reflecting serious mental health and conduct problems, also range at about 20-30% of divorces. This means that about 40-60% percent of divorces are in the middle, vulnerable to being influenced in either direction.
By approaching that middle group with settlement defined (or as we have redefined it above), perhaps most of that middle group could move in the amicable divorce direction. For example, when a client in the middle group says, “I want primary physical custody,” rather than thinking about a case strategy to achieve that client-driven legal outcome, the attorney might ask, “What type or relationships would you like your children to have with their parents?” When a client says, “I don’t want his girlfriend there when the children are there,” the attorney might ask, “What do you think is a healthy way to introduce the children to new romantic partners, which both of you are likely to have in the future?” When a client says, “I don’t want to pay any spousal support,” the attorneys might ask, “Is this what you really want, even if that is the best way to reach your financial goals?” If a client says, “We can’t agree on anything,” the attorney might ask, “Do you think it would be good for the children to see their parents resolving disagreements in a healthy way?” These questions lead to making an optimal Divorce Plan, rather than charging ahead with an emotionally driven legal outcome Divorce Plan.
Professionals in the family law arena are likely correct in their assumption that settlement is superior to litigation, but defining settlement as parties developing a good financial and family plan to reach goals rather than compromising on legal outcomes, might lead to better, more satisfying outcomes for everyone involved. “Nasty divorces” might shrink to a small percentage of cases, and the majority of divorcing parents might enter their post-divorce lives with a functional co-parenting relationship.
“Game Theory and the Transformation of Family Law: Change the Rules- Change the Game. A New Bargaining Model for Attorneys and Mediators to Optimize Outcomes for Divorcing Parties.” Unhooked Books. Scottsdale, AZ 2015 (Available at unhookedbooks.com, Amazon and other on line book dealers) and “Winning Strategies in Divorce: The Art and Science of Using Game Theory Principles and Skills in Negotiation and Mediation.” The latter is an online book only. To order, go to: www.unhookedmedia.com.