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In Lieu of Court and Hardball Litigators

July 13, 2014

If you are separating or divorcing, there are good reasons you don’t want to go to court and why you want to avoid hardball, winner take all litigators.

The reason to stay away from court is to avoid the win/lose mentally of settling a case. The reason you want to stay away from the win/lose outcome is because in the end, very often both parties subject to the litigation wind up losing. The question is, how can that be?

It goes like this.

When you go to court and put your life into the hands of a third party who makes decisions over your life, you can rest assured that the decision, good or bad, will not be as well crafted as you may craft yourself because that person will never have all the intimate details of your life.

The other and perhaps the more important reason why so many court imposed outcomes fail, is that no one likes being the loser. No one likes holding the “dirty” end of the stick.

While you may be thrilled to have won, consider the psychology of the other. That person is likely to feel hard done by and resentful. How well does someone who feels resentful follow rules to which they are opposed?

Resentment begs revenge and the nature of the revenge is to undo whatever was imposed against their favor. That means that the “winner” now has a huge target painted on their back and the “loser” is seeking to take them down to re-right their view of an imposed wrong.

You may not even see your opponent coming as revenge can go underground and come back in passive aggressive strategies or subtle and sometimes not so subtle strategies of undermining behavior.

Winner/Loser? Now both have lost as you are embroiled in an ongoing battle of undoing perceived injustices. This is hardly ever a favorable outcome.

Keep the lawyers from being central as they too, fighting on your behalf are more often at tremendous risk of only ratcheting up your conflict. Sadly enough, this occurs amidst the conflict of interest where your intensifying conflict is directly related to their financial gain.

Instead of the folly of litigation, Court imposed outcomes and lawyer assisted or directed negotiation, consider those strategies that facilitate negotiation between the opposing parties themselves.

Those strategies include collaborative law and mediation.

At least in collaborative law, while you have tremendous lawyer support, the parties subject to the dispute are central to the process and always present in every negotiation. In other words, you remain in control throughout, although assisted and guided by your lawyers.

In mediation, you get to work with a single neutral facilitator to help you craft your agreement. Bear in mind, the mediator will be neutral with respect to the final outcome of your agreement. However the mediator will not be neutral with regard to respect and safety. There the mediator will seek to facilitate a safe and courteous environment within which to carry out your work. In so doing, the mediator very often also serves as coach to help improve separating couples communicate more effectively between themselves. This is very useful for maintaining that ongoing relationship as co-parents.

While your collaborative lawyers are expert at law, you can chose a mediator with expertise directly related to your area of dispute so that the mediator can provide information and guidance to help achieve an agreement consistent with your needs, interests and the well being of your children.

In the end, it is not just the agreement that is reached, but the likelihood of the parties honoring the agreement over the passage of time. It may be more advantageous to craft a less than perfect agreement to which both persons buy into and to which both can maintain, than an agreement that suits primarily one that will likely crash and burn anyways.

Statistically, more than 95% of most matters settle prior to a trial, so why not spend your time and less money by going directly to those strategies that avoid court and the escalation of conflict?

You still want your lawyer, chose collaboratively trained lawyers and enter a collaborative law process. Want to preserve greater costs and be the most central figures in your settlement, chose mediation.

Want a lawsuit that will cost countless thousands of dollars and take years to settle chose litigious lawyers and go to court.

Not sure when you really may need to litigate? Consider domestic violence, serious mental health issues or criminal behavior. In the absence of those issues, and indeed often even in the presence of those issues, the alternative strategies might very well still be your preferred strategies.

This Judgement by Justice Pazaratz really sums up these issues.

I am Gary Direnfeld and I am a social worker.

Gary Direnfeld, MSW, RSW

(905) 628-4847

Gary Direnfeld is a social worker. Courts in Ontario, Canada, consider him an expert in social work, marital and family therapy, child development, parent-child relations and custody and access matters. Gary is the host of the TV reality show, Newlywed, Nearly Dead, parenting columnist for the Hamilton Spectator and author of Marriage Rescue: Overcoming the ten deadly sins in failing relationships. Gary maintains a private practice in Dundas Ontario, providing a range of services for people in distress. He speaks at conferences and workshops throughout North America.

If your relationship is faltering, then set it as your priority.

Read: Marriage Rescue: Overcoming ten deadly sins in failing relationships.

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  1. amtermini permalink

    I like the twist you put on winning in court and how it can backfire to a lose- lose situation. I doubt many people think of it that way.

  2. I received this comment on Linked In:

    Gary – I could not have said this as eloquently. Your sentiments, however, are the ones I say everyday to clients and other attorneys. When I read your post, I got drawn into your recent blogs. They are all fabulous! What an incredible resource you are to the professionals, courts, parents and children who are lucky enough to work directly with you. As for me, I will be a regular “lurker” on your website. Thanks for putting my Monday morning into perspective.

  3. Gina Kishur permalink

    Gary, brilliant as usual. You always seem to write something I need at the perfect time. I was just explaining to a couple this morning that it’s important to not put the future of their children into the hands of a person who wears a black nightgown to work every day. Perhaps I could have been more eloquent. They will be receiving a copy of this today, and I so hope I grow up to be just like you someday! Thank you.

  4. Reblogged this on ecarrollstraus and commented:
    Ah the truth the right people seem not to read!

  5. Dwayne Pyper permalink

    Hi Gary…you always have a great perspective and a comfortable way of explaining things. As a financial professional, now embarking on working in the area of financial mediation, I can’t agree more. The “each side hires its own financial professional” doesn’t work well either. As a minimum I think it is critcal that the two parties agree on one financial professional and engage he or she jointly so that the professional has full access to all the information from both sides. In those types of engagements I often “stage” the financial information, starting with schedules only coupled with joint meetings to try to resolve the business valuae and income for support issues without rendering a final report. This can be very cost effective, especially vs the alternative of two financial professionals. Keep up the great work…you are a wonderful advocate for non litigated solutions to a very personal issue.

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