Can Court Worsen Your Relationship?

Previously on this blog, I’ve advocated for negotiation and mediation as a means of conflict resolution.  I’ve explained that negotiation and mediation can be significantly less expensive than litigation and also quicker.  A litigated divorce is subject to the schedule of our overburdened court system; a negotiation is subject only to the schedules of the two parties and two attorneys.  (Occasionally, the negotiation may be delayed while parties wait on subpoenas or other discovery, but mostly negotiation occurs at the pace the parties desire.)

This week, I was reminded of another reason why negotiation can be better than litigation for families.  In negotiation, the parties can set the tone of their divorce.  If they have young children and know they’ll be co-parenting for many years, they can elect to approach one another amicably and collaboratively.  In an ideal negotiation, the joint problem-solving and brainstorming will remind the parties that they are able to work together despite the end of their marriage, and they will continue to communicate respectfully and productively into the future.

In court, it is much harder to control the tone of the divorce.  Although you might enter your first hearing with hopes of kindness, you will be opposing one another in front of the judge.  In other words, you might say things you would never bring up in mediation in order to sway the judge.  You might request things in discovery you wouldn’t ordinarily request in order to intimidate the other party into settling.  You might deliberately protract the proceeding in order to remind the other party of your resources and determination to “win” in court. 

Certainly, there are cases where negotiation and mediation are not appropriate.  However, before you jump into a litigated divorce, talk to your attorney about alternative dispute resolution and the possibility of divorcing in a way that allows you and your spouse to lay a foundation for working well together post-divorce.