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Two people close to me are going through a divorce. I am trying to understand why they are spending so much money on lawyers' fees rather than even trying to reach a negotiated or mediated settlement. This question is asked in order to get some broader perspective. In general, what can keep two people who both want a divorce from pursuing a negotiated or mediated route?

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Acrimony

Mowzer makes some good points. Another one is the parties may just hate each other. In some strands of legal theory, it's considered a type of transaction cost that keeps people from bargaining before and after litigation.

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    This absolutely happens. The saying is that criminal court involves bad people on their best behavior and divorce court involves good people on their worst behavior. I have seen couples whose mere presence in the same hallway or room immediately escalates into screaming matches who both get threatened with contempt of court even when their both in front of the judge. I know of a case where one parent punched out his ex's dad during a custody exchange in front of a police station. Not all couples are capable of having rational discussions with each other, even through a mediator. – ohwilleke Jun 30 '18 at 3:45
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1. Inexperience with mediation.

If they have not done mediation before, they might not be aware it exists. Much less the improvements it can offer over the traditional court method. Mediation is considered alternative dispute resolution process. And everyone is not always aware of what the alternatives are in their situation and what the advantages might be.

2. Mediation might not be "pushed" by the attorneys.

The practical reality is, the lawyers make more money when people go to trial. So they might not push the advantages of an alternative dispute resolution process when the parties won't spend even a fraction of what they otherwise would on legal fees. This point is controversial to mention, but a practical reality in my personal experience.

  • In my area (metro Denver, Colorado), mediation is mandatory in almost every contested divorce case and pretty much any other case likely to go to trial, so awareness that it exists isn't a problem. Most attorneys support it most of the time, but it isn't always appropriate when it can be used to psychologically manipulate a spouse into taking a very bad resolution that the spouse will regret later, often following a pattern of submission established in an abusive relationship. – ohwilleke Jun 30 '18 at 3:41
  • @ohwilleke: Interesting. As far as I see, the mediator is required (and obliged by the professional organizations) to be neutral - psychological manipulation would be a serious violation of professional integrity. Isn't there some professional organization that makes sure these standards are upheld? – sleske Jul 2 '18 at 9:33
  • @sleske Psychological manipulation by the mediator is the core part of the job. Psychological manipulation by one party of another takes an extraordinarily proficient mediator to detect and stop - 95% of mediators aren't capable of doing so even if they want to do so. Mediators can be manipulated as well whether they want to be or not. – ohwilleke Jul 2 '18 at 17:55
  • @ohwilleke: Yes, manipulation in its various forms is hard to tackle. Ideally, a competent and ethical mediator should not use manipulation themselves, and create an environment that exposes manipulation attempts by either party... but life is rarely ideal. BTW, here's an interesting paper on the legitimacy of manipulation techniques used by mediators: The ethics of Mediator Manipulation. – sleske Jul 3 '18 at 9:32
  • @sleske Interesting that an article on the ethics of mediation manipulation not only does not cite to any legal sources, but doesn't even site to any philosophical, religious, or even political theory ethical standards. If I were judging this argument in a Lincoln-Douglas debate tournament (a kind of debate focused on ethical and moral arguments), it wouldn't win high scores. – ohwilleke Jul 13 '18 at 12:31
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Lack of common ground for a compromise

Sometimes the parties' positions are just so far apart and so entrenched that no compromise is possible. If both parties are fully and utterly convinced that their desired solution is the only fair solution, no compromise is possible - then only a court can break the tie.

As far as I can see, this most frequently occurs with questions where it's difficult to split 50/50 and where a lot of emotion is involved, such as:

  • common children
  • the (formerly) shared home
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    Large disagreements on the valuation of a family business, or on a former homemaker's earning capacity are fairly common issues. Lack of trust that one side is giving the other accurate or complete information is another. Deep differences on parenting issues is a third. – ohwilleke Jun 30 '18 at 3:49
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    Sometimes there simply aren't any solutions that are fair and workable. One good example is resolving custody when the parents live thousands of miles from each other, and can't afford to pay for visits back and forth on a regular basis. – ohwilleke Jun 30 '18 at 4:06
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Other reasons mentioned in other answers have some merit, but here are two more important ones that hasn't been mentioned yet.

Uncertainty

Negotiations in court cases generally take place "in the shadow of" an expected range of outcomes if the parties go to trial.

People don't spend money on lawyers when the outcome is highly predictable and clear. In those cases, they reach a deal close to the one that would have occurred if they went through all of the motions at trial.

But, when there is great uncertainty regarding the outcome, and the range of possible outcomes is wide, both parties tend to expect that the likely outcome will be on the favorable side for them, because that is human nature, which tends to leave people with negotiating positions that are far apart. The more uncertain the result is likely to be a trial, the less likely people are to be able to reach a compromise.

Outcomes in divorce cases are among the least predictable in all of the law. Two judges can come to very different conclusions on exactly the same set of facts without making any errors of law or abusing their discretion in any way that is plausibly subject to a successful appeal. The outcomes are even less predictable before a particular judge is assigned to the case and the assignment of a judge only helps reduce uncertainty when experienced divorce counsel know the judge's likely inclinations in a case from prior experience.

About 95% of custody decision-making is governed by an utterly vague and vacuous standard that the judge should make an order consistent with "the best interests of the child(ren)." Basically: do the right thing. This means that almost any custody decision imaginable is possible.

Judges have historically had vast discretion in whether to award alimony, and over how much should be awarded for how long if it is granted, although some states have recently moved to curb that discretion.

Judges have had less historical discretion over the relative value of property division awards to each spouse, but still have nearly absolute discretion to decide who gets what and great discretion regarding how certain kinds of assets are valued.

Judges routinely urge parties to settle because that eliminates the risk of unpredictability for them, but in truth, the less predictable the outcome is, the more reluctant the parties are to reach a settlement.

Pro Se Parties

In most divorces in the U.S., neither party has a lawyer. Close to half of the rest of divorces have at least one party without a lawyer.

People without lawyers bumble through the court system, routinely make deep conceptual mistakes about the process, and fill out their forms wrong as well. For example, people without lawyers often fail to exchange information that is required to be exchanged by law and is a foundation to being able to reach a mediated solution. If the right information hasn't been exchanged, a judge won't even accept a resolution that has been reached.

Their unrealistic assumptions and outright misinformation about the process often derail realistic mediated solutions that would be available if both sides had good information, and there is only so much that a mediator can do to remedy this situation without becoming a lawyer for one or both of the parties.

  • "In most divorces, neither party has a lawyer". Thanks for the insight - I assume you are speaking about the US? In Germany, for example, you must be represented by a lawyer in divorce cases (§114 FamFG) - though curiously enough this does not apply to child custody cases. I assume that rule exists to prevent the problems you describe. It's interesting how different jurisdictions approach similar problems. – sleske Jul 13 '18 at 11:16
  • "I assume you are speaking about the US?" Absolutely. Is there a right to publicly paid counsel in Germany, or can you simply not get a divorce if you can't afford a lawyer? Honestly the case for a right to a publicly paid lawyer in child custody cases, where there may be little or no money at stake win or lose to pay a lawyer, makes more sense than in a divorce where the combined marital property and potential alimony award allows a lawyer to have an economic impact that can justify the fees. Outcomes in a childless divorce of people who can't afford lawyers don't matter much. – ohwilleke Jul 13 '18 at 12:20
  • "right publicly paid counsel" - yes, there is. It's called Verfahrenskostenhilfe ("aid to court costs"). It is awarded by the court, for litigants with insufficient means, and may carry all cost (both lawyer and court fees), or just allow payment in installments. The income limits are fairly low, but if you qualify for public welfare (Sozialhilfe/ALG II), you will usually qualify. And Verfahrenskostenhilfe is in principle available for all kinds of court cases, even if a lawyer is not legally required. – sleske Jul 13 '18 at 12:26
  • About the motivation behind the rules - that's an interesting question I don't know the answer to. Maybe it's because divorce regulation can be especially tricky (because of the property division required)? That would make an interesting new question... – sleske Jul 13 '18 at 12:29
  • @sleske "Verfahrenskostenhilfe" The Germans do love their big words! – ohwilleke Jul 13 '18 at 12:32

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