There are many reasons i consider Litigation inferior, and they are detailed throughout. However the key problem I believe is due to the wholly natural psychological vulnerability of both parties. They are embroiled in perhaps the most momentous upheaval, and their self esteem is at risk, while they attempt to preserve a guilt free zone for their children  and continue financially as best they can.

One needs a place of calm reflection and space for a new understanding to close a sad past. The USA adversarial court system sets people up to fight, hardly a recipe for calmness, a completely misplaced system in the context of family law. . All it takes is a few words, misconstrued or not, and logic is out of the window. Key words   can trigger completely arbitrary strategy. An overly or moderately aggressive Complaint or Motion  can set nerves jangling.  The lies written  by the opponent, the ‘spouse’, and then uttered in Court cause sheer disbelief and resentment. Life re-written.

Attorneys need to be very careful here, as they are  in complete control. They are Officers of the Court, supposedly unaffected by personal financial incentives. and ensuring balance. Yet a case can be too easily dragged on, without proper thought and improper or insensitive sentiments. In a commercial dispute, sense eventually takes over even where the law seems harsh, as costs mount. In divorce that’s not so. With divorce, rationality unconsciously  takes a backseat, and the situation quickly spirals out of control

Even simple cases can be upended. I had a mediation case referred where the parties were already  in court , advised by their attorneys. Costs had reached $50k, and there had only been a couple of preliminary hearings. Within a week there was agreement and some basis of trust between the parties. It was agreed that one of their attorneys would draft the legal forms (containing formalities)  to implement the agreement for approval by the other attorney. The attorney stated that he would act as per his clients wishes. He produced an agreement for perusal  but  it did not correspond and  in key areas benefited one side. The other side understood this to be a complete betrayal, which in turn forced the client of the offending attorney to turn to the very person she realized had not best represented her – because much as she loathed him, who else could fight her fight in court. Frightening and similar to the relationship of a victim and aggressor. This time the story had a happy ending as the parties came back to mediation, I as attorney was able to address the legal ramifications of possible outcomes in Court,  at which point the parties resolved the differences and reinstated the original understanding. Indeed their newly established mutual trust allowed them to continue dialogue post divorce.  Though they were $5,000 poorer for the shoddy draftsmanship. How much better to step up, determine one’s own outcome, and be allowed the room to do so.