by Suzanne Griffiths, LLB and Logan Martin, Intern
As unfortunate as it may be, there are some cases in which the parties in a divorce action, simply need to “fight it out” in a civil court setting if they are ever to achieve equitable and fair financial solutions or appropriate parenting plans that are in the best interests of their children.
Trials are always risky-negotiation strategies
Divorce negotiations are essentially driven by the parties’ estimates of what a court will do if no agreement is reached and the case goes to trial. When divorce lawyers negotiate, they look over their shoulders at what the court will do about the property, maintenance, child support, and parental responsibilities in the event that there is not a negotiated settlement. Experienced lawyers who litigate cases can provide information to clients regarding what a court would likely do if there were a contested trial. Good judgment is one of the most important skills that any lawyer can possess. Knowing when to fight and when to settle is an art that the best lawyers need to understand well.
A client’s, as well as a lawyer’s tolerance for uncertainty and risk, may affect success in negotiating settlements. The inherent uncertainty in the judicial process gives the risk-preferring spouse an advantage over the risk-averse spouse, for he or she has a greater tolerance for the possibility of losing in court.
Courts are given wide discretion by statutes in divorce cases and the judge’s decision may be quite different from the attorney’s prediction, for better or for worse. Clients can avoid that uncertainty by reaching an agreement. But a risk-averse spouse with a relatively small tolerance for uncertainty may desire an agreement more than the risk taker spouse who may prefer to go to court. One of the essential rules in litigation negotiations is that a client should be prepared to walk away from the negotiations and go to court when necessary. That strategy may cause the other spouse who cannot stand uncertainty and risk, to make further concessions to ensure the signing of a divorce agreement. Any lawyer who advises a client that he or she has never lost a case is either being untruthful or has simply never litigated many cases
Lawyers should know that it is not wise to box themselves in with ultimatums or written-in-stone positions. A clear idea of the client’s interests and being creative and flexible in negotiating to advance those interests is key. Negotiation becomes difficult when the parties think in terms of absolutes and dictate terms to which they become glued. Lawyers who overplay their hand in negotiations can make a big mistake.
A good settlement is one that completely satisfies neither party but that which each can live with. If one side wins too much and the opposition gets too little, the whole agreement is more apt to come unhinged, and costly litigation may ensue. Where both sides feel that the terms are fair and reasonable, there is psychological and moral pressure to abide by the agreement. Studies have shown that there is more compliance with negotiated agreements than when terms are imposed by the Court.
When litigation is inevitable
Divorce cases involving deception on the part of one or both parties, such as cases in which one party attempts to hide marital assets will often create a loss of trust that precludes the ability of the parties to successfully settle a case. Cases involving parties with personality disorders (e.g. the narcissist) often have to be litigated. Clients who have very unrealistic expectations, coupled with attorneys who endorse these expectations create the need to litigate.
Sometimes the sense of anger is so great that nothing except a court trial will satisfy the client. Some clients simply cannot let go and the litigation process removes the responsibility for ending the marriage and allocates this to the court.
While cooperative strategies work in some cases there are other cases in which spending time and energy on negotiations is inappropriate. While litigation can certainly be more expensive and emotionally taxing on clients, certain situations allow for no alternative than the adversarial option.