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Lieu of Court and Hardball Litigators
you are separating or divorcing, there are good reasons you don’t want to go
to court and why you want to avoid hardball, winner take all litigators.
reason to stay away from court is to avoid the win/lose mentally of settling a
case. The reason you want to stay away from the win/lose outcome is because in
the end, very often both parties subject to the litigation wind up losing. The
question is, how can that be?
goes like this.
you go to court and put your life into the hands of a third party who makes
decisions over your life, you can rest assured that the decision, good or bad,
will not be as well crafted as you may craft yourself because that person will
never have all the intimate details of your life.
other and perhaps the more important reason why so many court imposed outcomes
fail, is that no one likes being the loser. No one likes holding the “dirty”
end of the stick.
you may be thrilled to have won, consider the psychology of the other. That
person is likely to feel hard done by and resentful. How well does someone who
feels resentful follow rules to which they are opposed?
begs revenge and the nature of the revenge is to undo whatever was imposed
against their favor. That means that the “winner” now has a huge target
painted on their back and the “loser” is seeking to take them down to
re-right their view of an imposed wrong.
may not even see your opponent coming as revenge can go underground and come
back in passive aggressive strategies or subtle and sometimes not so subtle
strategies of undermining behavior.
Now both have lost as you are embroiled in an ongoing battle of undoing
perceived injustices. This is hardly ever a favorable outcome.
the lawyers from being central as they too, fighting on your behalf are more
often at tremendous risk of only ratcheting up your conflict. Sadly enough, this
occurs amidst the conflict of interest where your intensifying conflict is
directly related to their financial gain.
of the folly of litigation, Court imposed outcomes and lawyer assisted or
directed negotiation, consider those strategies that facilitate negotiation
between the opposing parties themselves.
strategies include collaborative law and mediation.
least in collaborative law, while you have tremendous lawyer support, the
parties subject to the dispute are central to the process and always present in
every negotiation. In other words, you remain in control throughout, although
assisted and guided by your lawyers.
mediation, you get to work with a single neutral facilitator to help you craft
your agreement. Bear in mind, the mediator will be neutral with respect to the
final outcome of your agreement. However the mediator will not be neutral with
regard to respect and safety. There the mediator will seek to facilitate a safe
and courteous environment within which to carry out your work. In so doing, the
mediator very often also serves as coach to help improve separating couples
communicate more effectively between themselves. This is very useful for
maintaining that ongoing relationship as co-parents.
your collaborative lawyers are expert at law, you can chose a mediator with
expertise directly related to your area of dispute so that the mediator can
provide information and guidance to help achieve an agreement consistent with
your needs, interests and the well being of your children.
the end, it is not just the agreement that is reached, but the likelihood of the
parties honoring the agreement over the passage of time. It may be more
advantageous to craft a less than perfect agreement to which both persons buy
into and to which both can maintain, than an agreement that suits primarily one
that will likely crash and burn anyways.
more than 95% of most matters settle prior to a trial, so why not spend your
time and less money by going directly to those strategies that avoid court and
the escalation of conflict?
still want your lawyer, chose collaboratively trained lawyers and enter a
collaborative law process. Want to preserve greater costs and be the most
central figures in your settlement, chose mediation.
a lawsuit that will cost countless thousands of dollars and take years to settle
chose litigious lawyers and go to court.
sure when you really may need to litigate? Consider domestic violence, serious
mental health issues or criminal behavior. In the absence of those issues, and
indeed often even in the presence of those issues, the alternative strategies
might very well still be your preferred strategies.
Direnfeld, MSW, RSW
Call Gary for your next conference and for expert opinion on family matters. Services include counselling, mediation, assessment, assessment critiques and workshops.
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