As a long time divorce attorney, I have experienced a range of approaches to settlement negotiations, and the attitudes taken by my colleagues who also specialize in the field of divorce and family law. As I have moved from the traditional adversarial model of divorce settlement negotiations and used mediation and collaborative divorce settlements to resolve divorce cases, it has become clear how limited and myopic the view can be of the traditional adversary divorce attorney toward negotiating divorce settlements.
This is not to say taking such a view is anyone’s personal fault; rather, it is how most attorneys were taught and it is the message they continually receive in the adversary law practice culture. In effect, and usually without exception, the view is this: I represent a client. This client has a point of view. It is my duty to take my client’s point of view. My point of view is right. The other party’s point of view is wrong. I cannot take into consideration the other party’s point of view. I may give lip service but will not actually listen to the other party. I will do whatever I can to win so my point of view prevails. Unfortunately, this way of proceeding, especially in an area of the law that involves families, can be of great cost to everyone; certainly to the clients and oftentimes to the attorneys as well.
Life is not a zero sum game. Do we ever actually find a situation where one party holds every virtue, where one party is always right, where one party knows best and where one party’s point of view must prevail on all issues lest the “good” be lost and the “bad” prevail? Yet, as close-minded as this point of view may be, at least to one degree or another it is the one underlying the negotiating approach of many traditional adversary divorce attorneys. And, although it is often covered over with a stance of seeming reasonableness, the message is clear: I will be reasonable as long as my point of view prevails.
When we look beyond the surface of life, it is not hard to see that what is there is anything but black or white, right or wrong, this or that. It is never one thing only. And, if we may use the word violence in its general sense, there is violence in taking one point of view to the exclusion of all others. The violence is that in taking such a view what is served is obliterating all other points of view. And with that obliteration can come the trampling on the sensibilities and feelings and values of those with whom we live and work and interact.
As every eyes wide open divorce attorney must see, this unfortunate dynamic has special importance in the field of family law, domestic relations practice and divorce settlements. The ones we may seek to “overcome” and over whom we wish to prevail are often the mothers, fathers, children and extended close ones who make up our families, even if those families are in the transition of divorce or separation. While it is at odds with the underlying ethic of the legal culture , the quite literal reality of our lives is that we are all in this together. Such reality calls on the divorce attorney to be informed by this ethic. The question each client might consider asking in entering a legal divorce process and the path leads to final settlement is – “In the divorce process, do I want to be the one who serves to support healing the rifts that would break our newly transitioning family apart, and do I want a lawyer who will share this ethic?”