Settle Your Divorce and Save Money

by Mark A. Chinn, Family Law Attorney

In thirty three years of practice, I have personally heard many people talk about wanting to take someone to the cleaners or teach someone a lesson. Others have attempted to hire me to teach someone a lesson. One client told me he had come to me because he heard I was a S__ of a b____. For years I bought into this. It was an ego trip to think that someone had enough faith in me that they would pay anything to retain me to change someone else's conduct. This is common.

I just read a series of comments among lawyers lamenting the fact that it seemed that prospective clients were more impressed with a lawyer who made a complete circus of the courtroom than the one who had acted with the civility we all expect. What do clients want? And, what should lawyers deliver? For me, the answer, after doing this for 33 years, is that each lawyer has to answer that question based upon his or her own personality, the personality and wishes of the client, and considerations for the consequences of each course of action. Need a simpler answer? Well, it's this: There are circumstances that require aggressive litigation and tactics, but 90% of the time, wisdom and compromise are the best answer.

There are certainly occasions when aggressive lawyering is required. One of those situations involves a batterer who needs to be put in his place and with whom you cannot negotiate. I recently tried one of these cases where the man had beaten my client repeatedly about the head and face and had put a choke hold on her.

Another reason to litigate involves people who simply cannot put their wrath aside to resolve things. No matter how hard you try, they are not going to be able to put their own wrath and resentments, their greed, or their need to come out on top, to the side.When you recognize you are in that situation, you need to buckle your chin strap and get in the game for four quarters.

Setting that small set of circumstances aside, all experienced trial lawyers in every field of law know that 99% of all cases are ultimately settled. Unless negotiation, mediation, or collaborative techniques are aggressively employed by the attorneys (with their client's blessing), many litigants are condemned to spend thousands or tens of thousands of dollars on attorneys and waste precious months or years of their lives, only to watch the attorneys settle their case at the last minute, or what we lawyers call, on the courthouse steps.

The best tools available to avoid unnecessary delay, stress and expense are Collaborative law and mediation. Mediation was the first tool on the scene. In mediation, both sides hire a lawyer who is trained in helping people resolve their conflict. Mediation is not arbitration, where a lawyer or arbitrator acts as a special Judge to decide the case outside of the court system. Mediation involves agreement. Therefore, the only risk of trying it is the money spent in the attempt. Mediation is usually considered confidential and not admissible into evidence, so each party can feel free to discuss what is necessary to settle the case without fear of it coming back on them later. For my more mature clients, I liken mediation to the process of shuttle diplomacy employed by Henry Kissinger when he brokered peace between Egypt and Israel. Dr. Kissinger had no right to make a decision on the issues but he was able to bring the parties to a voluntary agreement.

Some groups of attorneys sensed that mediation does not go far enough in reducing the body count of divorce, and invented the concept of Collaborative law. See: Collaborative Law, Achieving Effective Resolution in Divorce Without Litigation, by Pauline H. Tesler, ABA Family Law Section, p. xiii (2001). Collaborative law involves formal agreements between attorneys to settle the case and to cooperate. Both attorneys sign a covenant not to litigate. Parties usually retain joint experts to value assets or make recommendations on parenting plans. This saves on the cost of experts. If the parties cannot agree, they are faced with the prospect of hiring new lawyers and engaging in expensive litigation.

A recent article in The Michigan Divorce Report points out that Collaborative divorce and mediation cost much less than their alternatives. The cost of mediation or collaboration is one to two thirds the cost of a divorce negotiated by attorneys, and only 8% to 25% of the cost of full scale litigation.

(http://www.themichigandivorcereport.com/2011/01/war‑of‑roses‑is‑so‑yesterday.html)

Of course, the cheapest form of divorce is where the parties work the case out themselves, but this is usually only possible where there are no assets and no children. (If there are assets or children, lawyers should be involved to prevent irreparable damage.)

The bottom line is that the extra expense of a mediator is worth it. Collaborative law is worth it where you can find it. And those who cannot let go of their desire to inflict pain or play games, will ultimately spend a lot more and usually end up with no different a result for their expense and trouble.

© Mark Chinn. All Rights Reserved. Mark Chinn is a family attorney in Jackson, Ms who enjoys a perfect 5.0 Preeminent Rating in family law through lawyers.com. He is a frequent lecturer on family law and the author of The Constructive Divorce, Empowering Families to Reach Long-Term Positive Results, published by the ABA G/P Solo Practice Division (2007) and available at ababooks.org. Please see Mr. Chinn's website at: www.chinnandassociates.com