With summer upon us and the smell of the backyard grill serving as an ever-present marker of that all-too-brief outdoor time that we enjoy here in the Midwest, I was thinking about my recent trips to the butcher and fishmonger and how they have something to inform the way we look at mediation and litigation in divorce. In both food-based shops, artisans ply their trade so that we all can enjoy their end product. And in virtually every turf and surf establishments, there are saws, grinders, slicers, choppers, cleavers and an array of boning, skinning, filleting and other knives. Before our purchase comes to us ready for seasoning and cooking – it was first subject to varying degrees of precision and force at the hand of these maestros of meat and fish – with each maneuver applied using some or several of these different implements. Watching the skilled professionals craft and cut, it is impressive to see the diversity of tools and techniques used to work their magic. In every way, the specific tool and the particular technique is calibrated for both accuracy and precision – each are best suited to the unique task at hand.
In family law, it is common to conceive of litigation as a blunt and brutal instrument applied with pressure and force – a cleaver, if you will. By contrast, mediation and other forms of alternative dispute resolution would be scalpels of sorts – akin to the precision shobu knife one might use for delicate slices of sashimi. These non-litigation implements unquestionably permit for more granular, creative and artisanal resolutions that can be crafted outside the crucible of the courtroom.
To some limited extent, these binary comparisons are accurate. But they are also imprecise. Too often, the world of divorce litigation is depicted as a universe only of aggressive tactics and linear, direct battles. And too frequently, the world of mediation is characterized as if it should be, at all times, an arena of almost Southern gentility and rose-colored glasses of cooperation. The truth is that in both litigation and mediation, the adept attorney who has proven and ongoing experience in both worlds will always and already be drawing upon the skills, strategies and data points garnered from substantial time in both arenas. Like the food professionals above, in either setting, the skilled attorney will apply the correct tactic for the specific issue at the correct time.
This is because, in the reality of both litigation and mediation – a practitioner must be able to draw upon the entirety of his or her toolkit and his or her emotional intelligence – depending upon the issues at hand and the psychologies involved. In mediation, it is critical to have an accurate and precise understanding of what the real-world benchmarks would be in the Courtroom. Without firsthand facility with that specific data, gleaned from actual experience, the ability to assess the objective propriety of settlement positions and analyze issues of cost, benefit and risk is skewed. Moreover, even within mediation, there are tactics and skills commonly used within the litigation of a matter that have direct application. The ability to actively listen, to communicate complex concepts coherently, and to persuade is a hallmark of good trial lawyers. Those abilities honed with people on the witness stand are no less critical at the settlement table.
Similarly, in litigation it is essential to be able to work patiently with finely tuned approaches, not merely consistent blunt force. Within each overall piece of divorce litigation, there exist subsidiary pieces of litigation on temporary matters such as financial support, attorneys’ fees, parenting time and other issues. And at different times during the pendency of a case, the emotions and mindset of the parties involved will inevitably be different than it was at a later point or will be at a latter point. As such, a one-size-fits-all litigation approach reliant solely upon shock and awe is a crude and unsophisticated strategy that can often exact an inadvertent iatrogenic effect upon a case and make matters worse both substantively and in terms of process. In truth, litigation is an art, requiring patience, sensitivity, timing, and empathy. Seen this way, it becomes clear that litigation is no less creative than mediation and also that mediation is no less fraught with conflict and proxy wars than litigation.
The other critical point for spouses in divorce to appreciate is that a family law case often exists in both worlds: litigation and mediation. It is not uncommon to have any of the following a case that begins in litigation and moves to mediation (and vice versa), a case proceeds in litigation while a portion of or issue in the case is mediated, and even mediation after a case is litigated but prior or during appeal. In light of the many explicit or implicit intersections of the litigation and mediation worlds, it is that much more critical that clients be mindful of the value to be derived from working with counsel adept in using all of the tools available to navigate the issues, processes, and people involved in the case.
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