The Whats and Whens of Settlement

My colleague, John Crouch, posted on his blog about the disadvantages of collaborative law.  What I love about it is that his post turned out to be more about the disadvantages of litigation.  I really like what he has to say about the disadvantages of litigation:   "you can use the timing and immense stress and fear of impending trials to get people to sign settlements they never would agree to if they actually had time to consider them."  That point is something that most people really don't consider in discussing litigation.  In litigation, the court decides how fast or how slowly your case progresses.  That the process moves too slowly or too quickly is really too bad:  the pace belongs to the court without any consideration of what works for you or your family.  In collaborative law, the process moves at a  pace which is comfortable for the parties. You progress when everyone is ready to do so.  I had a case where my client had a health issue, and in the middle of the collaborative process, her issue became critical for a period.  we were able to pause the process until her health recovered, and then picked it up again.  That couldn't happen in litigation:  you might get the court to postpone a hearing, but then again, you might not; and even if it was postponed, you would have no control over when the hearing would be rescheduled.  
     The other thing about John's statement is that even though most cases settle, many, many of them settle at the 11th hour.  Some settle the day before trial, some the night before, some at the courthouse before trial and some during trial.  The court has its schedule and doesn't have a lot of flexibility.  There's only so much time the court will allow people to work out a settlement when they are scheduled to hold a trial, because the court has scheduled a certain amount of time and no more, so they want to get it done.  That means there is incredible time pressure to negotiate and come to an agreement.  The amount of pressure that places on people is incredible:  they are preparing for presenting their evidence before a judge who will decide their future, so they're anxious to begin, and then you add to that the stress of having to analyze options and reach a decision.  A lot of clients melt down (their lawyers don't love it either), and they make decisions that are usually not as good as if they had the time to reflect and weigh options.  Some of their decisions are just bad, and driven by fear and anxiety.  In the collaborative process, people are given enough time to gather information, develop and weigh options, negotiate and reach conclusions that are acceptable to both sides to the dispute.