Why Some Litigation Gets Out of Control

Almost everyone has heard horror stories about terrible divorce or child custody disputes. Movies like War of the Roses, while extremely exaggerated in places, show some of the really bad behavior that sometimes happens in family law litigation. Most divorces aren't as bad as the ones portrayed in various movies, but they are still plenty stressful and unpleasant.

Some people just refuse or are unable to be reasonable and consider the big picture. Some people are emotionally immature and lack the ability to control themselves. For the unreasonable, short-sighted and uncontrollable people, Collaborative Law is not a good fit; they just need to fight.

Most people, even when they are angry with their spouse, can control their emotions when they understand what's at stake (in a divorce) and what their settlement options are. Those people are likely good candidates for Collaborative Law if they value privacy, control over the outcome, flexibility, creativity and the use of well-trained neutral experts.

One of the reasons why more people are trying out Collaborative Law is that they are afraid of bad litigation. People should keep these in mind when deciding between litigation and Collaboration for their divorce or other family law issue. Here are some common reasons why litigation gets out of control.

1. There is an emphasis on attacking each other. Lawyers, and often their clients, have a natural tendency to attack the other side to try to "win" the case. Such an approach is destructive to personal and family relationships. Damage from an ugly divorce can be difficult or impossible to correct.

2. Some people have more money than sense. While some people reduce their fighting when they start to run out of money or when they realize there is little value left to be gained by fighting, others never slow down until their lawyer withdraws for non-payment of attorney's fees. A case can get out of control when the parties lose their sense of proportion, when the cost of litigation approaches the value to be gained. Sometimes, people just get stubborn and fight as "a matter of principle". That's almost always a bad decision.

3. The parties experience frustration due to an inability to control the outcome. In almost every litigated case, there are negotiations. Sometimes they result in settlements and sometimes they don't. When a case actually goes to trial, even for limited issues, and especially where major issues are to be decided by a judge or jury, it can be a very frustrating experience for the parties because they have so little personal decision-making power. Judges often will severely disappoint one or both parties who may not understand how a judge could find facts so different from how the party "knows" them to be.

4. There is a common strategy to win a war of attrition, or wear out the other party. It doesn't take too much creativity to just keep pressuring the other side, but it sometimes leads to a side giving up. It is very unpleasant to be the recipient of the continuous "hammering". In the end, there may be a settlement, but there would have been tremendous damage to family relationships and that often leads to continuing conflict for years to come.

5. Some attorneys don't attempt to control their clients or moderate their behavior. Sometimes, that is because the attorney believes his or her role is to just stand for, or just do the bidding for, the client without trying to control, direct or moderate the client's actions. The attorney does not offer to help the client by suggesting alternatives to a very aggressive and demanding approach. Without an attorney willing to manage the client, major trouble can develop.

6. Sometimes, the parties get frustrated by legal limitations, such as having to use guidelines and comply with statutes. If the parties are negotiating, especially in a Collaborative context, it is easy to work around restrictive statutes and rules. On the other hand, litigation usually follows various statutes that limit the options of the parties and the judge.

7. There's no professional neutral behavioral help. Most of the time, at least in the North Texas area, Collaborative cases include a neutral mental health professional who is a valuable asset in keeping the heat down in a case. Both parties feel safer, better listened to and more able to participate when Collaboration is tried. In litigation cases, crazy, angry, depressed or anxious people generally don't get help, and that makes it hard on everyone.

Litigation is often a stressful, unsatisfying method of settling disputes. Collaborative Law offers a safe, rational and creative haven for problem solving. When litigation goes bad, it can be devastating financially and emotionally to the parties. Parties considering how to resolve their legal disputes should carefully consider the advantages of Collaborative Law and the difficulties of litigation.