Dr. Judith Gerhart, CFP
Certified Divorce Financial Analyst 
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Limits of Collaboration
August 29, 2008
Despite the most concerted efforts of capable counsel, we all know that not all cases settle, and those that do settle sometimes don’t settle easily. All of us have encountered the frustration of the last-minute, courthouse steps agreement, after completion of all the work and stress of trial preparation. Why is it that some cases don’t settle until the very last minute, and some cases don’t settle at all?
Unsettled Legal Issues. Legitimate reasons to resort to litigation are not always evident at the beginning of a case. Much appellate work involves issues the existence of which - or at least the seriousness of which - did not surface until significant discovery and negotiation had occurred. Where the law is unsettled or where counsel genuinely disagree about the appropriate interpretation and application of the law to the facts of their case, it is not only reasonable but necessary to ask the judge to intervene. Cooperative counsel can reduce the complexity and expense of litigation by limiting contested issues, stipulating facts where possible, agreeing in advance to the admission of exhibits, declining to engage in delaying tactics, and other behavior that is both practical and considerate. Lawyers can commit themselves to conduct the proceedings without animosity and can counsel their clients to be courteous to the other side. But the court has the last word on interpreting and applying the law.
Reality Testing. All clients say they want a “fair” result and many of them genuinely mean it. But they may have a very self-absorbed definition of “fair.” Many years ago Leonard Loeb, whose wisdom and example have greatly influenced the development of a civilized standard of practice for family law attorneys, pointed out an important truth: “Sometimes the hardest negotiation you have to engage in is the one with your own client.” A client who simply cannot see the broader picture despite counsel’s best efforts may require the reality therapy of a temporary order hearing, or a pretrial with the judge, or a deadline for responding to formal discovery, in order to be capable of backing down from an unreasonable stance so settlement negotiations can proceed.
Scheduling Orders. We have all represented a left-behind spouse who does everything possible to avoid or at least delay the divorce, or a party who is preoccupied with business affairs or other family problems and just can’t get around to dealing with the work and decision-making implicit in the divorce process. If one party would prefer that the marriage continue, or if completing the action is not a priority, the court may need to facilitate progress in the case by issuing a scheduling order and setting deadlines. Counsel can cooperate by being reasonable and courteous in setting initial deadlines and in agreeing to extensions where necessary. The process need not be - and usually is not - antagonistic.
Financial Disclosure. A client may, deliberately or inadvertently, fail to disclose assets without the rigorous attention to financial detail that formal discovery entails. Surely we have all had the experience of finding forgotten assets when a client produces the records necessary to back up his or her interrogatory answers. In other circumstances, the client and/or counsel may need the assurance of due diligence in discovery in order to be comfortable with a proposed settlement, especially where the estate is complex or the assets are substantial.
Stability. Then there is the personal factor: divorce presents a significant life crisis for most of our clients, and we see them at their most vulnerable and most needy. The commencement of a divorce action is often accompanied by anxiety, guilt, an danger, and may throw a family into chaos. If one party’s antagonism toward the other is so overreaching that he or she is unable to proceed rationally and courteously, interim court orders may be the only way to achieve a level of stability that permits collaborative discussion of the long-term issues presented by the case.
In each of the above situations, the legal system provides structure and finality, and often sets the stage for the ultimate negotiated resolution of the matter. Court processes, rather than being an impediment to settlement, often facilitate it.
By Linda Roberson
Posted by Judith Gerhart on August 29, 2008 | Permalink | Post a comment
Topics: Divorce, Separation, Tips |
