Alternatives to Litigation

It goes without say that the person in the best position to make an informed decision about your life is you. This is true whether you're considering a career change, moving or getting a new car. So why, one has to wonder, do people entrust one of the most important decisions of their lives to total strangers?

Nonetheless, that is exactly what happens every time two parents refuse to resolve a case in Family Court and entrust the decision as to how their parenting time will be allocated amongst them. Unfortunately, and more times than not, the judges and referees empowered to make these decisions get it wrong. They do so not because of lack of intelligence or good intentions, but because of the natural constraints of time, they cannot possibly take into consideration all of the myriad variables that confront each person's life. The end result is often a patchwork that seeks to arbitrarily assign parents "time slots".

There are times, of course, when a resolution is impossible either because of one party's intractable insistence on unreasonable conditions, or because the parties have a good faith disagreement as to what is in their child's best interest that cannot be decided without the intervention of a neutral third party. These circumstances are rare, however, and most cases can be resolved provided that the parties are willing. However, this willingness to compromise on emotionally explosive issues is often in short supply.

It is for this reason that at the very outset of my representation of a client, during the initial consultation, the possibilities for an expedited resolution are always explored. This is not to suggest that a surrender is contemplated at the outset, but it is critical to organize a client's priorties and expectations in order to adequately represent them. It is equally critical to assess any realistic avenues of resolution to prevent not just the client, but the entire family, the expense, both financial and emotional, of protracted litigation. I have often found that the longer a case drags on the more likely it is that parties will become emotionally invested in the positions they have staked out for themselves. Time and money spent defending these positions is deemed wasted if they settle for anything less than everything they want.

Mediation, particularly at the outset of the case, is often a compelling alternative for clients and attorneys alike. It gives the parties a chance to air out their differences in an informal forum. This conversation can often, in and of itself, have a powerful ameliorative effect on the parties. It is one of the dirty little secrets that most divorce attorneys know that the easiest way to keep parties at war with each other (and paying their fees) is to keep them at arm's length, which is why many insist that all communications take place through the attorneys. It is a lot easier to be vindictive, insensitive and unreasonable when you do not have to look your former spouse/paramour in the eye. And because it is in the financial interests of the attorney to foster continued litigation rather than reach a resolution, the attorney and client will, whether they realize it or not, find themselves with conflicting objectives.

Mediation also has a practical implication for the attorneys, even if the case is not resolved. It enables the attorneys to narrow the issues confronting the parties considerably while simultaneously allowing them to evaluate the other party's credibility, demeanor and character. This information will prove invaluable at later junctures such as future settlement discussions and/or cross examinations. It will also help the attorneys to understand the other side of their own client's story and therefore gain a broader understanding of the needs of the family. Too often, attorneys approach their cases with tunnel vision, seeing only what their own client sees.

In short, litigation in Family Court is an arduous endeavor for anyone. But it particularly difficult for children who are emotionally ill-equipped to cope with the stressors that confront them in court. Moreover, the lingering uncertainty of where they will live, having to choose between two parents they love and being forced to divulge intimately personal information to a bevy of strangers is unnerving at best, catastrophically traumatic at worst.

As parents, it should be your first priority to try to determine, with or without the assistance of an attorney, how to resolve your family's crisis with a minimum of collateral damage. Settlements made by the parties themselves are almost always the best way to accomplish that.