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Instead of Litigation and the Inherent Conflict of Interest

You are in conflict with your former partner. You see a family lawyer who tells you s/he can be of assistance. The lawyer offers to send a letter of introduction to your former partner or their lawyer and in so doing, sets the tone for the process of settlement.

That first communication often describes a one-sided perspective to the situation; who is responsible for what; and what is required to resolve the matter Ė again, all one-sided. Naturally what occurs next is a reply, offering again a one-sided perspective but from the other personís point of view.

The reply rebuts the content of the letter received and provides another perspective on what is owed to whom. Before you know it, the parties are at an impasse and the matter is brought to court for resolution. You may not realize it, but you are now involved in a lawsuit. You are in litigation.

This is the predictable path when hiring a lawyer whose primary training is in litigation. All files are run this way. This is what they are trained to do.

As you and your former partner fight over things, money or children, more time is required by the litigator to manage the situation and more recognizance is gathered to bolster the court case. At the same time there is an increase in posturing between the lawyers and the parties. Each entrenches in their position and each seeks to poke holes in the others argument.

There is an inherent conflict of interest for litigators.

The greater the conflict between the parties, the greater the litigatorís personal income. This is built in structurally so even if you have a well-intentioned litigator, this issue continues to lurk and influence. Your lawyer will be pleased to fight the good fight at your expense and in many cases the good fight continues, at least until the money runs out.

So many matters that can be settled reasonably are inadvertently inflamed by the very process that was sought to facilitate resolution. This is so important for separating couples to appreciate. Why might well-intentioned litigators who actually know this stuff still litigate? Perhaps it is because of the challenge of taking their hand out of your cookie jar. When income is determined by an intensification of conflict and few of us want to undermine our own income, it is easy to see why this continues.

The question then is, what are separating couples to do when they cannot resolve their matters between themselves?

Enter mediation or Collaborative Family Law (CFL).

In both processes the professional service providers are trained to approach conflict in a manner so as to reduce the risk of inflaming it. Rather than relying on one-sided points of view, both approaches require meetings where both parties are present to discuss issues jointly. In both mediation and CFL, the professionals will endeavor to keep matters safe and civil. They will seek to help you determine an agreement you can both live with while appreciating that more reasonable the process, the faster it can proceed.

Mediators and Collaborative Family Law lawyers get paid too. However, their income is less determined by your degree of conflict and more determined by your joint satisfaction with the outcome. Rather than looking for your repeat business, they are looking for your referrals.

With litigation, while you may seem satisfied with the outcome, it runs the risk of coming at great expense. The process is costly financially and socially. After each party runs down the other to build a case, you can image the likelihood of repairing relationships is low. You can also imagine how that plays into the well being of children when their parents cannot stand each other or work together cooperatively. In addition, when a party feels like they got the wrong outcome, you can also ask yourself what the likelihood of that party fully honoring the agreement will be. However, agreements entered into voluntarily such as through either mediation or CFL are typically better followed even when it is not the perfect agreement, but a resolution people do agree to live with.

Settling a separation? Choose wisely. Having a lawyer fight on your behalf may appear appealing to start. It may appear less stressful to you in the beginning. The issue though isnít necessarily where you start, but where you finish and how you get there.

Mediation and Collaborative Family law will require you to take ownership in the process and work under the guidance of professionals as you determine the outcome with your former partner. You will likely learn conflict resolution skills along the way to put you in better stead for any future dispute. Because you are front and center to the process to begin, it may sound more challenging; however, think of where you want to end up.

To my litigator friends, (yes, I have litigator friends), please know I am not disparaging you or your profession. There is a place for litigation, but that place is far more limited than is currently practiced. I can only suggest that you consider training in Collaborative Family Law and/or mediation to expand your service offering. The antidote to a concern of dropping income is to increase your skill set in other areas to diversify your services. As you expand your training and diversify your range of service you open yourself up to numerous other strategies that truly help separating couples get on with their lives more reasonably. There is an old saying, the carpenter who only owns a hammer treats all things like a nail. While a hammer may be suitable to the nail, it can break that for which itís use is not intended. So too with litigation. It can break relationships intended for fixing. An expanded skill set is like a full tool chest. You can accomplish so much more, more easily and more reasonably when using the right tool.

Interestingly, I received a phone call in the middle of writing this post. The call was from a former litigator, now trained in Collaborative Family Law. In the room was the lawyer for the other side and both parents. This was an impromptu 5-way meeting to discuss process options. Outside of court we can be so creative in terms of developing a process to resolve differences. I suggested a course of action, absent court or arbitration. I drew from my now 15 item list of services to tailor an approach to meet their needs. I was so impressed by this former litigatorís flexible thinking to best meet the needs of the entire family. This sure beats lawyers sending one-sided nasty letters back and forth.

Instead of litigation and the inherent conflict of interest, consider mediation or Collaborative Family Law. If you go directly to a lawyer, be sure to find one with the additional training of mediation and/or CFL. They will have a bigger tool kit from which to draw.

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Gary Direnfeld, MSW, RSW
(905) 628-4847  

gary@yoursocialworker.com

www.yoursocialworker.com 
 
Gary Direnfeld is a social worker. Courts in Ontario, Canada, consider him an expert in social work, marital and family therapy, child development, parent-child relations and custody and access matters. Gary is the host of the TV reality show, Newlywed, Nearly Dead, parenting columnist for the Hamilton Spectator and author of Marriage Rescue: Overcoming the ten deadly sins in failing relationships. Gary maintains a private practice in Dundas Ontario, providing a range of services for people in distress. He speaks at conferences and workshops throughout North America and was the first social worker to sit on the Ontario Board for Collaborative Family Law.

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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20 Suter Crescent, Dundas, ON, Canada L9H 6R5 Tel: (905) 628-4847 Email: gary@yoursocialworker.com