A Winning Resolution

A WINNING RESOLUTION
We need to win! I hear this from time to time from prospective clients. Other variations include, I want everything!, I want an aggressive lawyer who will take it to him/her and I want to get him/her. As a litigator, my experience has been that the client who starts out with these notions seldom feels the thrill of victory but, rather, the agony of considerable legal expense and an outcome that doesnt feel quite satisfying. In some instances, there are reasons to litigate. But, on the other hand, most divorce matters settle before reaching trial and do so for many reasons. Often this is because parties are worn down by the fight they believed they wanted at the beginning and simply want it all to end. Much like the outcome of a trial, these results are hardly satisfying either. Especially when parties realize, days late and tens of thousands of dollars short, that good communication and an even better negotiator could have avoided the victorless battle.

As collaborative family practitioner and mediator, Im trained not to view divorce as a win or lose situation, but, rather, to look for a win-win resolution. Ive often struggled for a response that would acknowledge the concept of winning but would not mean losing on the things that, in retrospect, will be so important, such as the fact that the client is not only an aggrieved spouse but is also a parent who will have to coparent with the person they are plotting to beat, at all costs. One day, the answer came to me and, in response to the statement about winning, I replied, We will win this if you land on your feet at the end.

This client was satisfied with the answer and, while the process was not a smooth and easy Zen like experience, which many mistakenly believe Collaborative Law to be, a winning resolution could be achieved. It took creativity and patience, and accountability for financial expenditures, but it didnt take a protracted Court battle, tens of thousands of dollars in legal fees or a trial to accomplish.

The foremost principal in Collaborative Law is that parties agree at the outset not to go to court and, instead, to work together to reach a resolution. The common misconception is that, in order for two people to forego their right to have a judge preside over there divorce, they must be on amicable terms at the outset and that there cannot be any disputed legal issues such as questionable financial expenditures otherwise known as dissipation of assets or other concerns which would give rise to a legal remedy. This position assumes that, whenever there is a dispute, parties must go to court to fight it out and that there will be only one winner. While that might be the case on Super Bowl Sunday, it is not true when peoples financial futures and their childrens well being is at stake.

Fortunately, most divorces do not maintain the winning at all costs mentality. Most divorces do settle at some point prior to trial. Unfortunately, in most cases, the parties still go through a lengthy discovery process, experience adversity to some degree and spend a considerable amount of money, often to achieve the same result they would have achieved at the outset, with the only difference being the tens of thousands of dollars spent.

For parties who opt for the collaborative process, time and money can be saved by not engaging in litigation. While the process is not for everybody, and there are some cases which can and will have to go to trial, there are many who would benefit from this alternative approach to the mistakenly termed winner take all litigation.

Lori Barkus is admitted to practice in Florida, the District of Columbia and Georgia. She is a Florida Supreme Court Certified Circuit Civil Mediator and a Family Law mediator. Her practice is located in Fort Lauderdale, FL and concentrates in the areas of Marital and Family Law, Mediation and Adoption.

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