Judge J. Kathleen
Judge Anne L.
D. Fleck (Ret.)
Comm. Eric B.
of compassionate settlement when all
about them asks for conflict. This is easy
to say, hard to do. The formalities of collaborative law are designed to make it difficult for the lawyers or parties to fall into
conflict mode. The two lawyers and two
parties to a collaborative divorce conduct
four-way, face-to-face meetings because it
is more difficult to get feisty with the other
lawyer, or for the clients to get feisty with
each other, when the other two of the foursome are looking right at them. It’s a law
of human nature. Conventional divorce
yields bad results, so don’t do it.
Saving time and money
And now, the financial. Lawyers first.
Lawyering is a business. Lawyers want
to make a good living, help their clients,
get referrals, and not spend their hard-earned money on unending advertising
because they don’t get referrals via happy former clients. Lawyers who can help
their clients to have happy divorces and
save money should be wildly popular.
For clients, settlements are economi-
cal because they are certain. Compas-
sionate divorce should be cheaper than
litigated divorce. The marital estate
should have more money if the parties
work together. Read: tax planning works
better when the parties cooperate. Most
of all, competitive litigation is uncertain.
The professional way to say this legally is:
“Going to court is rolling the dice.”
But with settlement you get what you
agree to. If you have a claim against your
spouse for $50,000, you might have an
80% chance of a court victory. That reduc-
es the value to $40,000. If you have a 70%
chance of collecting your court judgment,
that reduces your recovery to $28,000 —
a lot, but not as much. But you have to pay
for attorney time to get that recovery, say
$7,000, so, down more. Now, the kicker:
you, the party, spent a good part of a year
fretting about this claim. You spent time
answering lawyer questions and being de-
posed, your performance at work suffered,
and your tummy did not do well in this
period either. Call that another $15,000
because you had a good job and you lost
a lot of earning power. Your true recovery
is $6,000. Not worth it. Not all lawyers un-
derstand this, either. That’s the financial.
Settlement is good, stress is expensive,
and lawyer fees are high. But people are
happy to pay serious lawyer fees if they
know their happiness is the result of skill-
ful dispute engineering by their lawyer.
Settle when you can. Be determined.
Be aware that the wisdom of a benevolent
settlement may emerge from the darkest
clouds even though no one can make
every case come out right. The benefit is
to live knowing that the lawyers and the
parties did their best to create a happy re-
lationship for people who asked for help.
You can be happy about a divorce. NWL
ROGER LEY was a practicing lawyer
in Seattle from 1971 until 2007, when
he relocated to coastal Oregon. He is
now retired, but continues to write on
compassionate dispute resolution and
courthouse architecture. He can be
reached at firstname.lastname@example.org.