One of the most difficult concepts for people to understand,
if they are not involved in the divorce process as part of their profession,
is that alternatives almost always lead to better results. Quite naturally,
people often believe that alternatives based on compromise require one
to settle for results which are less than fair, and that by hiring the
"biggest barracuda in town", they have a better chance of
achieving the settlement they want.
We live in an "adversarial age" that would have
us believe the best way to get results in our society is to demand them
aggressively. In this view, the best attorneys are those who effectively
make aggressive demands on your behalf.
If you are married to an aggressive or intimidating spouse,
you may be inclined to try to find someone who can "out-hustle"
your spouse at that level. You may fear that your aggressive or intimidating
spouse will take advantage of these seemingly "softer" methods
to make you, and perhaps your children, come up short. Alternatives
to more adversarial methods seem to contradict what you believe about
how to get what you need in our society.
Successful attorneys with considerable experience in family
law will tell you (if they are being honest) that settlement achieves
far better results than litigation. It is so difficult to achieve a
satisfactory result in court, that even the most successful litigants
achieve a result that is inferior to the average settlement arrived
at through alternative methods.
Divorce trials are two-person competitions in which the
"winners" come in third. The "losers" - and quite
often both sides believe they lost - are even less happy. And, when
there are children involved, the children generally lose the most. While
this unmistakable truth may seem contrary to our "fight to win"
instincts, it is less surprising when you examine the process carefully.
First, when the dispute is about money, it is clear that
rising legal fees shrink the marital estate. Thus, the amount of property
available for you after an extended struggle will generally be far less
than you would have received from even a "bad settlement"
reached early on. In addition, when money is in dispute, true "win-win"
alternatives often exist - through tax planning or another cooperative
venture - that can actually increase the amount that you and your spouse
have available to divide.
When more than money is at stake, such as custody and
visitation of the children, the potential for a better result through
a settlement is even greater.
To operate well, custody and parenting agreements require
some degree of cooperation. Successful low-conflict alternatives preserve
cooperation that can better meet children's needs. They can provide
both parties with access to their children that is more meaningful than
what a court might order.
By going to court, parties are asking a near stranger
- who may have little knowledge about child development - to make long-term
decisions about their personal family life. Judges do not have the background
or temperament necessary to equip them to make sound decisions about
your family life. However, even the judges who are the most qualified
to make family decisions are the first to say that they should not be
put in that position.
The cumbersome court rules and other constraints, including
the short amount of time that the judge actually sees a family, hinder
the judge's ability to truly understand the needs of a particular family.
Legal limitations often force the judge to avoid creative decisions
- deferring instead to boilerplate "winner take all" custody
decisions that statutes and higher court rulings sometimes prescribe.
Referee Earl Beddow, a Ramsey County Family Court Referee
has described the process of having to make custody decisions with the
very limited tools available as "performing brain surgery with
a chainsaw."
Because of the system's inherent delays, courts cannot
effectively handle many of the ongoing concerns one parent might have
about how the other parent is providing for the children. In some counties
it can take as long as two or three months to even hear a temporary
or short-term motion. Even then the judges or referees, because of the
overloaded schedules of the judges and referees, decisions can sometimes
take up to 90 days to be rendered. Consequently, partly due to delays,
courts cannot deal seriously with problems that are important when they
occur.
Imagine, for example, if the other parent does not return
your children to your home until two hours past the arranged time, as
your court order requires. That event is potentially traumatizing when
it occurs and should be taken seriously. However, it is difficult for
even the best judge to effectively address the situation two or three
months later, after the parties have filed motions and appeared at a
hearing.
Consequently, it is difficult, if not impossible,
for the courts to match the quality of results that people could reach
on their own through any of the available alternate
dispute methods.
