I had a consultation this week with a spouse who was beginning to gather information for possibly proceeding with a divorce. I gave her information about mediation to share with the absent spouse in the event she could persuade him to consider the mediation option. During our meeting she expressed interest in getting some legal advice to help her with making the decision whether to mediate or lawyer up. I let her know that I could not advise her as I am not able to mediate once I provide advice to either spouse. I did let her know that through the mediation process I would educate both her and her spouse on the intricate details of the law applicable to their situation. She wondered aloud which avenue would accomplish the best result for her and expressed that it seemed like it would be best to have her own advocate, and thus hire her own attorney. In this week’s blog I tackle the notion of trying to get the most for ourselves, the danger of selling ourselves short, and what I call the Goldilocks range of getting things accomplished somewhere in the space of “just right”.
Getting the most for ourselves. The above referenced client was not being greedy or selfish. She was doing her homework. She expressed apprehension about the possibility that her spouse would not be open to treating her fairly. She was being proactive and getting her questions answered so that she could do everything possible to assure the most favorable result. I let her know that meeting with an attorney and getting some advice and guidance could be a great next step for her. I encouraged her to keep her mind open to the option of mediating after speaking to her attorney. I also let her know that she could use an attorney through the mediation process and would not be asked to sign anything without first having the opportunity to have it reviewed by her attorney. Her comments and the conversation really made me think long and hard about this idea that you might be able to do a lot better for yourself if you hire an attorney. The flaw in this notion is more often when one side hires an attorney, so does the other, and if both have attorneys, how do both sides accomplish better results?
Lawyering up and shooting too high. One big benefit of mediation is the couple getting educated on the law together. The mediator will typically provide the couple with the framework of the law on the issues that are needing to be addressed. No advice is given but the mediator is able to clarify the law so that each spouse can make informed decisions for themselves. By getting educated in this fashion, the couple has similar expectations when it comes time to make decisions.
In litigation, each spouse meets with their own attorney. Each attorney advises their own client how to best proceed to accomplish the best outcome for themself. What typically results is that there is a large discrepancy in the expectations of each spouse, so unlike mediation where the expectations of each spouse are in the same ballpark, in the litigation setting there often is a huge chasm between the expectations of each side. It is often the case that both sides are shooting way too high and it can get in the way of the initiation of a reasonable conversation about resolving the issues. It is quite common for each side to shoot for the moon so that there is wiggle room for negotiation. The problem with shooting too high is that it can be a long process of having the Court get involved with giving both sides a reality check on their overly ambitious positions. It is often not until a settlement conference is held in a litigated case that the unreasonableness of positions are challenged. This can be a year or more into the process.
Self Representation and shooting too low? So, what other options are there besides getting lawyers involved? Couples don’t need to hire lawyers to get divorced. Many couples do it themselves by exploring some self help options to gain an understanding of what needs to get done and then attempting to do it without the assistance of a professional. The danger with this approach is if you do not have a clear understanding of your rights then you are not in a position to understand what reasonable expectations might be. If one spouse is more informed than the other, the less informed spouse is set up to be taken advantage of. If you are unable to negotiate settlement with your spouse and turn to the Court to make the decisions, you can again end up shooting too low because you don’t know what to advocate for or how to get the Court what is needed so they can make good decisions in addressing your matter.
I advocate for an approach that puts each spouse in a position where they understand their rights so they can understand what a reasonable outcome might look like. If that means hiring a lawyer to get you to that place, then so be it. If I had to choose the better option between shooting too high and shooting too low, starting too high and being forced down into something a little more reasonable seems better then starting too low, where likely that is where it will end up staying.
The Goldilocks zone. There is this place in a divorce where settlement happens that usually is somewhere in between the original positions of each spouse. I say usually, because there are situation where one side comes out of the gate taking a reasonable stance and the other takes a very unreasonable position, and in that case we have not got to the reasonable settlement area until the unreasonable person abandons their unreasonable position and moves into this settlement space where both spouses are not necessarily getting exactly what they want, but where they get some sense that both sides are giving similarly to get to a place of agreement.
If you have been involved with any sort of settlement work, mediation, or if you have been practicing law long enough, you can pretty quickly identify that space where the case is likely to reasonably settle. Outside of that area, one side is being asked to give up way too much and one spouse is getting away with way too much. They say that the Judge made the right decision in a divorce hearing if both sides walk out of court feeling like they have lost. In settlement discussions it shouldn’t necessarily feel like both have lost, but it should feel like both have given up some concessions while also feeling like they have been treated somewhat fairly.
Finding the quickest path to “just right”. As a divorce mediator I feel pretty strongly that the quickest path to this place of settlement that I will call “just right” is through mediation. Mediation typically avoids shooting too low because the initial focus of the mediation is to deliver both spouses to a place where they understand their rights and have all the information they need to make good decisions. It avoids shooting too high because the couple is educated together which usually will result in both spouses receiving reality checks and leaves both spouses with similar expectations. There is still of course lots of work to be done to get to a place of agreement, but typically in mediations the spouses are not starting out planets apart from one another.
Litigated cases usually settle before trial and when they do the “just right” area where they settle is in the same ballpark as the “just right” areas arrived at through mediation. The litigations just have a roundabout path to settlement with a starting line at “too high” Avoiding the long journey to reasonable settlement should be one of our goals as professionals working with divorcing couples as well as the goal of the couples going through the divorce. When approaching divorce consider Goldilocks. Don’t shoot too high, or too low. Consider finding that space of “just right” where both spouses are treated reasonably and you both get to move quicker into the life that awaits after divorce.