Can We Talk....

Settlement?

The overwhelming majority of family law cases settle.  Yes, you heard me right; they settle.  Sometimes it's because the spouses are engaged in a dispute resolution mechanism that encourages it; mediation or collaborative divorce.  Sometimes, it's at court-ordered alternative dispute resolution (mediation with lawyers), sometimes through attorney negotiations, and sometimes on the courthouse steps.  Having just settled a difficult case at ADR today, I have some thoughts on why ADR is successful.

1. The clients realize that the court is limited in what it can and can't do; there is no such limitation with a mutual agreement.
2. The clients are able to tell their story to a third party in a safe environment and know they are heard.
3. The clients realize that when you come right down to it, spending $5 to get $1 isn't worth it.
4. There is a value to reaching resolution and moving forward that exceeds the dollar amount of the disagreement.
5. An acceptable agreement reached together is more durable than one that is judicially imposed.
6. It makes more sense to spend the extra $20,000 or more that a trial would cost sending their own children to college, rather than use it for sending the lawyer's children

So, if reaching agreement is so much better, why do some cases, even with creative, settlement-minded lawyers, not settle?  Those cases also share some traits.

1. One or both of the clients suffer from a mental illness that precludes their ability to see the same reality as the normal population.
2. One or both of the clients is so invested in being "right," that they are unable to see the big picture.
3. One or both clients have an overpowering need for revenge (see also, number 1above).
4. The emotions of the conflict and the relationship overcome rational thought.  

I do not, for one minute, downplay the incredible strength it takes to settle with someone of whom you have no trust.  It's darned difficult, almost impossible, in fact.  That's why I so admire my clients who are able to analyze an offer, see the options, know their needs and make a deal in the face of so much pressure and strong emotion.  To all my clients who have done so -  GOOD JOB!