If I was facing a divorce, child custody, or other Family Court case, I would want the best possible attorney to handle my case. However, how do you tell which attorneys are better and which are worse? One way to tell is to ask a potential attorney what they think about settlements. This is one area that helps differentiate the attorney’s experience and wisdom, because while younger attorneys tend to go into cases "with both guns blazing", experienced attorneys recognize and understand the value of resolving cases prior to trial.
There are many tools available to attorneys to help reach an amicable resolution prior to trial, including settlement conferences, negotiation, mediation, arbitration, and collaborative law. Attorney Scott Stewart published an article that explained ten reasons why parties should try to settle disputes before a trial becomes necessary:
- Judges are adjudicators, not facilitators. Legislators make the laws that judges must follow. As adjudicators, our judges apply the facts to the law, render decisions, and issue orders. They do not mediate, or facilitate, agreements between the parties. Don’t expect a great deal of creativity at trial, the Judge’s alternatives are limited by what the law allows. The parties are the ones who can create an agreement with terms that work for them in their unique circumstances.
- Judges are not polygraph machines. Judges observe witness demeanor and consider truthfulness at every trial, but, as sophisticated as they may be, they are not living lie detectors. Consequently, judges do not always know when someone is being honest and truthful. An untruth can result in a decision for the party who doesn’t really deserve it. A risk that the parties take with any trial is an outcome that isn’t necessarily right or fair.
- The judge doesn’t know you. The Judge steps into your life and renders a decision about your marriage on the evidence presented in the trial. The Judge is an outsider to your marriage, he or she has no particular understanding of your unique family. At a trial, the parties state their respective positions on the issues between them, they present evidence in support of their positions, and the Judge decides who wins and who loses, and it all takes place in a few hours.
- Judges are lawyers, not mental health experts. Family law cases are intensely personal and emotional. Mental health issues are not uncommon, and our family courts do a very good job of connecting families to the services they need to get help. But Judges are trained lawyers, not trained mental health experts. Although family law judges are very knowledgeable about all aspects of domestic relations, expecting psychological expertise from the Judge will probably lead to a disappointing result at trial.
- Trials take time. There is no quickie divorce trial. Every trial procedure takes time, hearings get delayed, deadlines get rescheduled, people take vacations, weeks turn into months, and potentially years, before a dissolution is final. When the decision is believed to be in error and an appeal is sought, the appellate procedure begins with its own deadlines, calendars, and delays.
- Trials are expensive. Divorce lawyers get paid for their legal expertise. The more time the attorneys spend litigating, the more it costs their clients. If the case is highly contested, and seemingly everything is a disputed issue and there is little certainty, then the investment of attorney time is also high. Furthermore, professionals are hired to investigate, report, and testify in court, such as child custody evaluators and forensic accountants, each of whom may charge thousands of dollars.
- Your goals are not the Judge’s. You may have a very clear plan for your future and the future of your children. But your goals and the Judge’s decision are two very different things. You may have a short term goal of returning to school with a long-term goal of opening your own business, and you may ask that your soon to be ex-spouse help defray the tuition costs with alimony. The Judge may decide, however, that you are able to support yourself now and should cover your own tuition costs, even though you supported your spouse while he or she attended college.
- Judges are people, not machines. Sometimes Judges make mistakes, after all they are human beings with foibles just like everyone else. They do their level best under challenging circumstances with extremely busy judicial calendars, but they are not perfect. You may be right in your argument as to why a certain something should go your way at trial, but that doesn’t mean the Judge will decide in your favor — sometimes the decision is final, and wrong. Exercising the right to an appeal of the trial court’s decision is the only chance for reversal, and appeals cost money, too.
- The price of winning. The expense of litigation, the attorneys fees, expert witness fees, evaluation costs, and so on, add up to what can be a very costly trial process. But there is another cost, an emotional one. Child custody trials, particularly, can be very destructive for family interrelationships. Resolving legal custody issues with a mandate from the court doesn’t address the reality that the parents must continue to deal with each other on an emotional level throughout their child’s minority. You still raise the children together, but as two families instead of one. An unhappy result at trial may create long lasting animosity between the parties.
- "You are not a winner." The result of a trial is not always desirable — you could lose on the issues that are most important to you. For example, you may have asked to remain in the marital home until your child graduates from high school. (A seemingly reasonable request if the child is currently attending high school.) The Judge, however, may order the home to be listed for sale immediately and, once sold, the assets distributed. A trial necessitates the court’s final decision on any issue presented. When that decision is for one party and against the other party, then there is a winner and a loser. Keep in mind, too, that the courts often craft orders that don’t give either party everything asked for, so even the "winner" on an issue may end up with a result far different than he or she was hoping for.
Source: "10 Ways that Settlements Help Couples in a Divorce" by Scott David Stewart, published at his Phoenix Family Law Blog.