Family Law Litigation: What Is Fueling the Family Feuding?

Family Law Litigation is often a destructive and harmful process for families suffering the tragedy of separation and divorce. Here are 3 considerations pertinent to all people who are contemplating the divorce or separation process.

1.  What dispute resolution options are available to families contemplating separation and divorce:  The litigation process is only ONE of several dispute resolution processses avaiable our families. In recognition of this fact, the South Carolina Bar changed the name of it’s “Alternative Dispute Resolution Secion” to the “Dispute Resolution Section”. This reflects my Bar’s recognition that their exist several very different dispute resolution processes that can help people resolve their diferences and lawyers need to have all options available to them to effectively assist their clients.

The advesarial dispute resolution process is commonly known as “litigation”. It is a zero sum process that is designd to name a “winner” of a legal dispute after following a rational and structured period of disclosure. The court is engaged from the very begining to ensure (and enforce) that the discloure of information is fair, and to make (and enforce) certain interim orders. After a decision is made by the fact finder (either a judge or jury) or an agreed upon settlement (the overwhelming majority of cases), the winners and losers often go their separate ways, notwithstanding an appeal.

The adversarial process works great in criminal and most civil litigation cases because these disputes are often between strangers or people who will not likey ever cross paths again. On the other hand, a divorce case only ends the legal rights and responsibilities that the State of South Carolina places on married couples. A divorce does not end the existence of the family who often must continue to work closely together to resolve family problems as they arise in the future.

Interest based negotiation is a different and very effective process for resolving disputes between people. The parties first identify the interests that support their respective positions that is set forth in legal dispute. Through the negotiation process the parties then seek to find resolution by reaching agreement in areas where their respective interests converge. By focusing on issues where parties agree their stated “positions” at the onset of the dispute often seem less important. 

Interest based negotiation will obviously work best in cases where maintaining a future relationship is required or desired (like a family). The principals of interest based negotiation are the foundation of Collaborative Practice and Mediation. Interest based negotiation can be used in any formal or informal dispute resolution setting and has been proven to be uniquely suited to preserving family relationships after a divorce or separation.

2. When should I use the litigation process and when should I consider another dispute resolution process. Our legal system was not designed for, and can not accomodate, being the first place to go for a resolution of disputes. But this is how lawyers have utilized the courts and this is why it takes years to get a resolution with most litigants feel as if they have never been heard. The much overused litigation process has caused the public not only to have a lack of faith in the legal system, the sheer overwhelming volume of cases further lends iteslf to abuse by the litigants and their attorneys.

The advesarial litigation process is best used in cases where the issues are clear, the parties unlikely to ever be involved with each other again, and the rules of disclosure are necessary. In family law litigation, cases that fall into this category are those involving violence or substance abuse, or other similar issues where trust and saftey are serious concerns. Very early in a case the family court can issue enforceable interim orders effecting custody, support, and property division, while monitoring the exchange of information between the parties.

Interest based negotiation, such as collaborative practice, mediation and even informal settlement discussions, are best suited when the parties desire, or are required, to have a continuing close relationship, such as co-parenting small kids. This is a process designed to focus on the future, and less concerned about amending or punishing past wrongs.

3. Keep an eye on your lawyer. One of the  primary complaint consumers of legsl services make is that they feel the legal fees were excessive. The dominant form of charging for legal services in the United States is to bill clients for the time the lawyer has expended on the case. The lawyer generally gets a cash “retainer” at the begining of the case and then bills against it as she expends time on the clients matter. This is an inherant conflict of interest between the lawyer and their own client. If I receive a $25,000 retainer at the begining of the case, what incentive to I have to end litigation prior to spending all that money? Here are a few thoughts regarding how you can protect yourself in this situation.

Make sure you are getting monthly billing statements, and read them! Analize your monthly billing statement and ask questions if you don’t understand something. Remember, your attorney is financially motivated to find ways to spend your money that may not be in accord with your best legal interests.

Whenever possible, insist on paying fixed legal fees. Fixed fees provide an attorney the opposite insentive to a billable hour fee arrangement. The attorney now has an incentive to finish your case as efficiently as possible without engaging in unnecessary legal actions which create large billings but do very little to advance your legal goals. Uncontested divorces, drafting marital settlement agreements, and stepparent adoptions, are perfect examples of situations where fixed legal fees can work very well.

In summary, disputes we have within our communities are not new. It is the way lawyers are resolving those disputes that has become a major problem. We have created a preference for a “file first” advesarial dispute resolution process that is fueled by the billable hour fee arrangements. Consumers are left to the mercy of their lawyers to handle their case as the lawyers deem to be in the clients best interest. This is the “perfect storm” that has caused the drama and delay so endemic to consumers of legal services.

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