Mediation, Marriage Dissolution

Litigation

Traditional litigation is not a unitary phenomenon. In its simplest form, using attorneys, or through negotiations on their own, a couple can create an agreement that addresses financial and child-related issues and file it with the court. If the court approves, the agreement will become an order of the court. This process can be lengthy or swift depending on the level of cooperation between the couple (and the attorneys, if any).

If an agreement cannot be worked out in this manner, the couple can make proposals until an agreement is negotiated. This process can require hours of attorney time, multiple documents filed with the court, and multiple court appearances. At the extreme, couples can be so hostile and polarized as to require significant hours of attorney and several additional professionals' time (e.g., accountants, appraisers, psychologists or psychiatrists, attorneys for the children) to resolve disputed [Page 1086]issues. This extreme type of litigation is seen as formalized competition in which there is a “winner” and a “loser” for each issue, and has been criticized for being inherently competitive, adversarial, and expensive—which it is.

Although three decades of research have addressed divorce mediation, there has been little on this litigation process. The popular perception is that divorce lawyers are obnoxious, argumentative, and refuse to settle for what is fair thus increasing acrimony between the spouses. Unfortunately, no empirical studies confirm the number and percentage of lawyers who behave in this manner and no studies that focus on what lawyers see as their goal. Interview research indicates just the opposite: Argumentative and unreasonable lawyers are in the minority. The overriding desire among divorce attorneys interviewed is for a “reasonable divorce.” The major role of attorneys is to limit client expectations and overcome the resistance of angry clients who do not want to settle but instead want to use the legal system to play out emotional rather than legal issues. This process is often called cooling out the client. An interesting twist is that more clients are choosing to negotiate on their own and not involve attorneys or mediators. There is no empirical research on how the negotiation process works when clients negotiate in this manner.

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