Her manner of speaking made the comment redundant. It was obvious to anyone that Mrs. B (now going by a different name) was clearly happy and content by any measure. She looked good.
We stepped out of the main concourse to talk. She told me how things had “come together” for her in the aftermath of resolution. She said that when her case ended, she wasn’t sure if she’d be able to manage, but she had some remaining confidence that stayed with her even though she had felt vulnerable.
She said she remembered that I had told her an average settlement was twice as good as a great victory at trial. She remarked that her ex-husband, once a fierce combatant, was actually being almost easy to deal with, and had been cooperative on several children’s issues lately. He had found a new woman, and my former client found it surprisingly easy to communicate with this new woman.
She was glad that the case had settled, and even more pleased that the resolution had been achieved without huge expense or acrimony. She seemed genuinely happy and settled. Although she had not recovered everything she wanted, she had found some peace and had moved on. Getting perfect financial justice had, in the end, proven to be relatively unimportant. For her, the settlement and eventual divorce had been invigorating and uplifting, and she and the kids were happier than they had ever been.
As I walked away, I began to think about her happiness, and the very different and very unhappy experience that Mrs. G had gone through. Although no two cases are ever the same, I began to consider the similarities of the issues, the topics that were argued, and the results obtained. As I did, I realized that while there were some obvious differences between the two families, the parallels were remarkable. Mrs. G and Mrs. B had nearly identical cases and claims, and almost opposite experiences and results. I started to wonder why that was so.
My thinking about this issue is primarily what has led to the development of this book. For, in considering the cases side by side, I came to realize that the factor that brought Mrs. G such misery and Mrs. B such calm was not the process itself, the minutiae of the detail, or any other difference or distinction; it was that a fundamentally different approach had been taken from the outset. Mrs. B came to my office with a desire to settle and resolve the dispute in a non-acrimonious way. She did so understanding that litigation might result, but committed to avoiding that (probably because she knew it was undesirable, unaffordable, and impractical). Mrs. G, on the other hand, started the process wanting blood, expecting justice, and demanding litigation. Hell-bent for some inarticulate and insatiable objective, she could not be satisfied even when the litigation went exactly as she had wanted. No fair or even generous judgment could satisfy her desires because fairness was not the objective.
The lesson learned from these two files has taught me three things that are worth knowing and sharing:
• When it comes to negotiating a settlement, never say never. Do not leave the world of negotiation because you believe that the case will never settle. Sure, it may settle even after you start the litigation, but once litigation has commenced, the stakes are much higher and the sensitivities are extremely heightened.
• When you are negotiating and trying to settle, you must never believe that litigation is a practical alternative — litigation is not a reasonable option. It may be absolutely unavoidable in some cases (when there’s violence or hidden assets), but for most separating spouses, litigation just doesn’t make sense.
• Remember that you may be happier if you settle and miserable even if you win a lawsuit.
2
Understanding The Situation — Litigation May Not Be Necessary
Litigation is a process that is designed to serve a very special and very unusual person. The ideal litigant is someone who —
• has genuinely tried all other dispute-resolution options and failed for reasons which cannot be remedied,
• has plenty of money for the process and for the lawyers,
• is strong, and
• can afford to lose.
There are two basic litigation processes: the inquisitorial system and the adversarial system.
The inquisitorial system is where the judge or adjudicator is charged with the duty of inquiring into the event at issue, finding out what happened, and determining the facts. The best example of an inquisitorial tribunal in our lives is the process that occurs after a major tragedy (e.g., a plane or train crash), where a panel of experts is assembled to investigate and find out what went wrong. Sometimes, it’s conducted as a coroner’s inquiry. Other times, it’s a government-appointed body that is gathered to get to the bottom of a particular tragedy, to find out what occurred and what can be done in the future to avoid a similar event. The purpose is not to find fault and levy blame.
The adversarial system has a very different objective and a very different process. The adversarial system is the typical court process that we all think about when we remember old Perry Mason episodes or recall scenes from the movie Judgment at Nuremburg.
Our litigation system is adversarial. That means that our litigation proceeds on the premise that if each party puts his or her best case forward and has a chance at a hearty cross examination, the truth will spill out and the judge can then assign fault or blame and fix everything. In the process, of course, a few heads are likely to roll. In family law, since we’re not really interested in knowing who caused the breakdown of the marriage, the purpose of the adversarial system is clearly misplaced. Why a marriage collapsed just doesn’t matter.
Because our system is imperfect, and not really designed for divorce law issues, other options have developed over the years. Now, in North America, there exist many alternatives to litigation. Some are inexpensive, speedy, and low-conflict. Others (i.e., arbitration) are similar to the existing legal system, but have cost and accessibility advantages. Some systems work for some people, while other parties simply cannot find peace no matter what they do. Regardless, the point is that if you are separating, you need to know about the alternatives, and you need to remember that full-blown litigation is, truly, the last option you should consider. Litigation should occur only when every other alternative has failed.
One reason for this is that even the strongest and wealthiest clients find the litigation process far too costly from both an emotional and a fiscal perspective. Some know that at the outset, and wisely resolve issues before the fight becomes too entangled. Others learn the lesson too late, and only set their sights on settlement after huge expenses and nasty affidavits. Even if you are rich, it should be remembered that litigation wastes money, and that’s money that can be better used for other purposes (e.g., children, counseling, luxuries, or charity).
A litigant must be internally strong, too. In order to effectively withstand cross examination, the taunting nature of the process, and all the twists and turns and uncertainties of a lawsuit, you need strength and confidence. Many who outwardly appear to have that strength overestimate their stamina and resources, and discover too late that litigation is simply overwhelming.
If you must litigate because there is no alternative, a lawyer can help you get ready for the process and guide you through the challenges. The following chapters describe what steps you can take before and during a lawsuit to improve your situation and increase the likelihood that you’ll be a good witness. If you must testify so be it; the point here is that most separating spouses have choices to make. Surprisingly, a majority still choose litigation.
Although the horrors of litigation cannot be overstated, every week I have clients insist on proceeding to court in search of justice. It’s almost as if hiring a lawyer and starting a lawsuit is a badge of bravado or a demonstration of strength. Very often I am able to dissuade these clients through calm discussion about the risks, expenses, and process associated with that. Often it’s hopeless — some people