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of Litigation and the Inherent Conflict of Interest
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.
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.
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.
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.
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.
is an inherent conflict of interest for litigators.
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.
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.
question then is, what are separating couples to do when they cannot resolve
their matters between themselves?
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.
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.
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.
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.
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.
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.
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.
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.
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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