I just had to file suit in one of my cases here in the Trenches. We had attended mediation and made some progress. Then we stalled. Some people did some things they shouldn't have done and it destroyed whatever tenuous trust existed between the two spouses. My client no longer believed anything that came out of the other spouse's mouth, including any of the underlying information on which we had based our prior negotiations. My client needed to see the numbers - under penalties of perjury. That's all there is to it. So, I filed and I asked the other attorney if they would accept service of the court papers. There are two points I want to make based on what happened after that.
You see, the first thing that happened was that the other attorney, who I have known and trusted for many years, called and email me so we could talk. The second thing that happened was that I called her. She wanted to know what was up and why. I told her. She then said two things: first, tell me what documents you need to see and I'll get them for you; and second, please send me another settlement proposal so we can continue to narrow the space between our clients' positions and meet their needs. She knew I didn't make the decision to file lightly and that simply because I filed didn't mean we were in all out war.
The first take away for the client from all of this is that you really, really want your attorney to not only know the other attorney, but also to respect and get along with them. It is your best option for a settlement that works for both you and your spouse. This attorney and I trust each other. We both know that we both know the practice of family law. We both know want to help our clients be OK and move forward with their lives (not all attorneys share this philosophy). We can believe that the other will not take an action without a good reason. We know the other will not ramp it up without a conversation, and we will never shut down those avenues. All of this is vital to making sure the clients get what they need, and that they get what they need in a cost effective way. If this attorney and I did not have the relationship we do, there would be no offers of document production or continuing conversations at this stage of the game. No, we would simply retreat to our corners and start churning out discovery, which in case you all missed it, is a huge money maker for us. We'd be preparing for a 4 day trial, another big money maker, without any effort at settlement except what the court requires. If I don't trust what you say, I won't trust what you'll do.
The second takeaway is that the choice of process can be very fluid in family law. There are very few, if any, process choices that are irrevocable or which cannot encompass other process choices. Sometimes, mediation fails to reach a full settlement, and the case settles with lawyer-to-lawyer negotiation. Sometimes, mediation fails to reach a full settlement, the court process starts, and then parties return to mediation. Sometimes, folks start in court and end up in collaboration. Sometimes, they start in collaboration, move to court and end up in mediation. I always say there is a process choice that is right for every person; it's an art (and sometimes trial and error) to figure out which one it is in a given case. I don't think using any process, even if it is not the one that leads directly to a durable agreement, is wrong. Even in this case, I see a value in our attending mediation. Each process helps the client and the attorney move forward toward resolution; thankfully the other attorney in my case and I see our movement from mediation in the same way. Here in the Trenches.
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