By Attorney Gregg Herman
Sept. 16, 2015
If there is any major trend in family law during the 30-plus years I have practiced in this field (for anyone counting, I started when I was six years old), it is the rate of resolution versus litigation. Where family law lawyers litigated years ago, today there is a settlement. Some of this is attributed to a societal trend away from aggressive lawyering and more towards lawyers as problem solvers rather than warriors. For example, the ABA Code of Ethics used to require lawyers to be “zealous advocates” for their clients.
Today, lawyers are expected to know how to resolve issues, not just litigate them. In no area is that more important than in family law, where the effects of being “zealous” can cause repercussions when parents try to co-parent children (which include adult children) after the lawyers go away.
While settling the case is important, how the case is settled is also important. Traditionally, settlement negotiations were always positional – both sides took maximum positions, high or low, then compromise from there. Positional negotiations allow both parties to see that the other party made compromises to settle the matter. Over the years, a significant body of research and study has developed on how to effectively negotiate. The literature starts with Getting to Yes by Robert Fischer and William Ury, which is must reading for everyone who negotiates for a living.
While, as discussed in my previous article, collaborative divorce has not greatly expanded, the collaborative process brings a lot to the table. For one thing, the concept of a divorce coach – not a therapist, but a mental health counselor to help parties just get through the process – has a great deal of value. So does the concept of joint appraisals and, in some cases, a neutral financial advisor. Most of all, the commitment to settlement is crucial. This commitment can eliminate some of the fear of the legal process and of lawyers that cause many couples to proceed pro se.
But, if lawyers do not like the mutual mandatory withdrawal feature of collaborative divorce, it is not necessary to throw the baby out with the bathwater. All of the components of collaborative divorce can be used in every case – and should be used in most cases. Just as important, lawyers need to learn that there is more to settlement than just being positional. Unfortunately, while most divorce cases are settled, it seems that the vast majority of CLE programs are dedicated to teaching lawyers how to litigate. In other words, most courses teach lawyers skills they rarely use while fewer courses help lawyers improve the skills we use every day.
Fortunately, I said “most” – not “all.” Some of the collaborative training can be quite useful.
Finally, there is a great deal of literature for your home reading in addition to Fisher and Ury’s work. Coming soon is Game Theory and the Transformation of Family Law, written by Dr. Kenneth Waldron and Attorney Alan Koritzinsky of Madison. While highly technical at points, it is a fascinating application of economic theory to family law settlement negotiations. Watch for it on Amazon.com and other online publishers starting Oct. 13.
The bottom line is that there is a lot to learn out there. So go to a seminar or buy a book – or both. Learning to do what we actually do can improve our services to our clients and, in turn, improve their future.