I recently mediated a very difficult case in which the primary issues centered on the parties’ relationship with one another and the impact of that relationship on their very young children. As most often occurs in these always stressful mediations, the back-and-forth meetings and discussions with these parents resulted in often grudging concessions and inch-by-inch forward progress.
Finally, in trying to settle a visitation date, time and location exchange, we hit the “proverbial wall”, at which time one the parties’ attorneys (both parties’ attorneys in this case were excellent, and in that regard, their clients were fortunate) could no longer restrain himself as he continued to argue to me that the other parent’s position was “not logical…there is no logic in their position!”. I listened patiently and when the attorney was finished, I asked him this question:
Can you tell me when “logic” was ever involved in a family court case?
As I have repeated many times over the years, and certainly many times during my family law mediation practice, every case inside a family courtroom is driven by emotions – animosity, mistrust and issues of control run rampant during mediation sessions and certainly outside and inside the courtroom. I’m referring, of course, not just to the litigants, but also to their attorneys. Consequently, I have yet to encounter a single mediation conference where “logic” had anything to do with the settlement or impasse reached in the case.
To the family law attorney: please do your clients a tremendous favor and tell them that the family courtroom is the most imperfect place for decision-making on the planet. And let me add the following to the mix:
Rank these family court proceedings in order of importance to you, with the most important obviously being “1” and the least important being “5”:
• Temporary hearing(s)
• Final hearing(s)
• Scheduled mediation(s)
• Contempt of court hearing(s)
• Motion hearings (e.g., motions to compel, motions for pretrial discovery, etc.)
Now, how would your clients rank the importance of these same proceedings? Do you know the answer to that question?…does it matter to you?…do you care?
Finally, logically, how would the family court judge rank the importance of these same proceedings?
If I were guessing, I would probably guess you, the attorney, would rank the “final hearing(s)” as “1” and the “scheduled mediation” as “5”. Here’s the simple thought process. Every proceeding listed above, with the exception of mediation, takes place inside a family courtroom where the attorney believes the stakes are higher. There is pressure on the attorney “to perform” inside a courtroom, in front of a judge, in front of a client, on the record. There is zero pressure on the attorney to perform in front of the mediator. Sound about right?
If you have a lemming for a client, then most probably, your client would place the same importance on these proceedings as you did. Otherwise, I would hazard a guess that your client is focused, often laser-like, on getting through the “hell of family court” as efficiently and effectively (and yes, as cheaply) as possible. And when I had a private law practice I can’t recall any client telling me they “enjoyed” paying my legal fees and could I please spend more of their life, time and money on their case.
Finally, I believe that I can safely tell you that your family court judge would completely reverse your “importance rankings”; and (logically) I would believe that your family court judge is infinitely more impressed with the attorney(s) who have a reputation for always being highly skilled in settling cases or resolving potential trial issues than the ones who thrive on litigation.