You could see the anguish in his eyes. I just met this fellow (not a client) but it was apparent he was struggling to keep it together. “What's wrong my friend” I asked? “Oh, it's a personal thing I am dealing with,” he replied. “I need to see my attorney this afternoon and sign some papers. My wife and I are going through a nasty divorce and we are scheduled to be in court next week. There are so many issues – custody, child support and financial stuff and fighting over who gets what. It's just a mess.” Not wanting to pry too much I asked whether he and his wife are close to resolving things and whether he had thought about mediation as a way of addressing the issues. “No” he said, “we are way beyond anything like that. Like I said, it is pretty ugly.”
In my practice I encounter this type of despair quite a bit. It's sad because once a sense of hopelessness sets in, people regard themselves as victims and believe they are no longer in control of what happens in their lives. Functioning under such stress puts a tremendous amount of strain on important relationships and impacts our ability to think clearly, ironically all at a time when important decisions need to be made.
People who feel their situation is hopeless often turn to the lawyers and courts to sort things out for them. At first blush that makes perfect sense and is understandable. After all, getting divorced is a legal process so isn't that the context in which these family issues need to be resolved? The answer is both yes and no. Yes, ultimately you need a judge to enter an Order terminating the marriage but no, delegating the task of resolving your custody, support and equitable distribution issues to judges, attorneys or the court system is not required and indeed may not be in your or anyone's best interest.
Here is a statistic that many people find shocking: better that 95% of all civil lawsuits are settled prior to the cases going to trial. 95%! And of those 5% that do make it to trial, a fair number of them are just people who are using the legal system to beat each other up. What this says is that it is far more likely your case will be disposed of by way of a settlement than by a trial. If that is true, wouldn't it make much more sense to try and settle your case sooner than later, saving yourself thousands of dollars in legal fees and the stress that goes along with the litigation process? The answer (at least from an objective standpoint), is clearly yes. The trick, of course, is to get people to see the wisdom in such an approach when they are deeply embroiled in the conflict.
Lawyers can play an important role in resolving conflict, but as a culture we need to start thinking in terms of alternative methods of resolving our differences. Processes like mediation, arbitration and collaborative law are all very effective in helping people reach agreement and move on with their lives. This is not to say you must compromise your legal rights and interests, however, any fair settlement involves all parties giving and taking a bit. Lawyers need to educate their clients early on about these alternative methods of resolving the issues and encourage them to start thinking seriously about creative ways of finding common ground. When I hear someone say their case is “way beyond anything like that” it tells me they probably have not been told the truth about how the judicial process actually works. Eventually they will discover the truth but not before spending thousands of dollars in legal fees and enduring a great deal of stress and angst.
It was Abraham Lincoln who once said: Discourage litigation. Persuade your neighbor to compromise whenever you can. Point out to them that the nominal winner is often the real loser — in fees, expenses and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man.
I think we can all take comfort in the wisdom of our 16th President.