While over 90% of cases (some studies say 95%) are settled before they actually go to trial, clients should ask themselves a very important question: What is the quality of our settlement?
Most clients do not know the importance of asking this question. It can determine their future and their children’s future. Why?
It is true the over 90% of cases settle before actually going through a trial before a judge or jury, but what does that mean?
Is there is a difference between a settlement that is reached at “the courthouse door,” as we sometimes say versus one that is reached at mediation or in the Collaborative Divorce process? Every client who is considering a divorce needs to be asking this question.If you divorce in the litigation process, you are beginning your case in an adversarial, win-lose, zero-sum game. What does that mean? That means that you are “versus,” just like in a boxing or wrestling match.
Generally, this means that you assume the worst about your spouse and that the only way you can get your case resolved is to go to Court and say bad things/bring evidence of the very worst about your spouse. Do you ever prepare to say or say good things about your spouse in Court? No. And by presenting the worst information about your spouse, you hope that you will prevail in Court. What does prevailing in Court mean? More often than not, you have spent thousands of dollars on discovery (forcing your spouse to answer written questions, provide documents and often have depositions taken of their testimony of your spouse and other people). Then, you have preparation for a mediation (which is usually required by Courts in Texas before a final trial can be had).
What people often don’t understand is that mediation in Texas is typically set up where each party is in a different room with their attorney and a mediator goes back and forth between the two rooms, doing what we refer to as “shuttle diplomacy.”
This all usually happens in a period from 9 a.m. through 5 p.m., so obviously, there are some time pressures. Those time pressures, in my opinion, often force people to make decisions in a panic or at least under duress rather than with a cool head and full information; it is commonly known that people do not make their best decisions under pressure or duress. Even if the case settles at mediation do the parties and their children end up embracing at the end of that mediation? No, in fact, often the mediator has each party and his or her attorney leave the building at separate times because the animosity between them is so high. Does that mean that they will have a future good parenting and familial relationship? Obviously not.
If the case doesn’t settle at mediation, what next?
The parties to go to trial. And at trial, the parties and their attorneys present evidence that basically attempts to show why one party is “right” or “good” and the other party is “wrong” or “bad.” At the end of the trial, the Court (or jury in some cases) has to make decisions that almost always make one party, and sometimes both, very unhappy. Has there been anything about this process that helps the parties heal? Do the husband and wife and other members of the family embrace at the end of the trial? No. In fact, what was done in the trial and the order of the Court may result in the parties having a lifetime hatred of each other that trickles down to their children, grandchildren and other family members that damages the family for generations.
But once the trial is over, the case is over, right?
Often not; often, just like the “Treaty of Versailles” at the end of WWI, the resolution itself caused World War II. Divorces can, and often, have that same result. Rather than healing, the end of a court case that is litigated leaves so much bad feeling and damage that the parties return to Court year after year, bringing their family members right along in their continuing war. And for even those who do not return to Court, the Cold War of animosity can continue by alienation of the children and other family and friends for years and sometimes lifetimes. What a sad outcome – doesn’t divorce have to end this way? No.
Collaborative Divorce is another, and in the opinion of many judges, lawyers and clients, better option for families who divorce.
In Collaborative Divorce, the clients sign an agreement at the very beginning of the case that states they will not go to court and that they will concentrate from the very beginning on the QUALITY of their settlement rather than spending financial, emotional and relationship resources on preparing for a trial that will, in all likelihood, never take place, given that 90-95% of all cases settle prior to trial. Andrea Vacca, a Collaborative Divorce attorney, provides an excellent summary of why Collaborative Divorce is a better option for most divorces. Great minds think alike, I guess – I also authored a blog in 2017 similar to this one by Andrea Vacca, entitled, “The Divorce Process Should Do No Harm.”
Conflict resolution to restructure your family does NOT have to mean engaging in a war against your spouse.
If you must divorce, please carefully consider your options for the process you use and consider focusing on and developing a quality settlement that will serve you and your family for years to come. Rather than hiring a lawyer to prepare for a war against your spouse, please consider a Collaborative Divorce. If this is an option that you think may be an option for you, find a lawyer who is trained in Collaborative Divorce and who has the philosophy of “First, Do No Harm.”
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