spiraling costs of lawsuits are, however, but one reason for giving resolution without litigation a real and serious chance. Unspeakable accusations, affidavits that can’t be withdrawn or forgotten, and allegations that contaminate parental relations are some of the other reasons.
Having said all that, I need to be cautious. No spouse should “turtle” on his or her basic rights just because of a fear of litigation. If you or your spouse face an unresolved legal issue, it may be necessary at some point to seek justice in the justice system. That system exists in our magnificent democratic society so that we can get help and justice when we need it. And, as I point out in Chapter 4, there are some specific circumstances in which litigation is the only option. In cases where one spouse has financial or psychological dominance, where abuse prevails, where children are at risk, or where assets have been hidden, a court case may be absolutely critical and the only route to peace.
In the vast majority of cases that I see, however, that’s not so. I would estimate, in fact, that almost 90 percent of the cases where litigation has started are ultimately resolved outside of court. Many of the spouses who end up in litigation started in litigation, and they did so without finding out what alternatives existed. Many parties have not explored or exhausted the opportunities for a negotiated settlement when they consult counsel, and that is a mistake. Indeed, in most cases, it’s never been tried. Often, that’s because the parties simply don’t know how to talk, how to negotiate, or what to do.
As you read the coming chapters, remember: The process of negotiation and settlement is something that your mediator or lawyer is going to engage in at any event — so why not at least try it yourself first?
If you’re overweight, have high-blood pressure, and smoke cigarettes, you shouldn’t be surprised when you go to the doctor for a check-up and receive advice about necessary changes. Unless you have absolutely no insight into the essentials of good health, you should be able to anticipate what will happen.
Yet when I see separated spouses and ask if they can really talk with their spouse or have a calm and meaningful discussion (in person or in writing), I often get a glazed look in response: “Can I do that? Can we talk?” is the question.
The answer, of course, is yes. Unless there’s a restraining order that prohibits the parties from communicating, separated spouses should talk, provided it can be done respectfully and sensibly. If you can’t do that, and every thought, proposal, and idea has to be delivered through counsel, you’re going to need a patient lawyer and a large pile of money to resolve the issues.
At the start, I always tell my clients that the discussions have to begin somewhere. Try a simple issue that’s not too emotionally charged and not likely to create great hardship. Establish rapport and build trust. Show your spouse that talking about the issues (in person, on the phone, or by email) doesn’t need to be traumatic.
If you end up with a skilled mediator or lawyer, he or she will do the same thing. The mediator may not be able to resolve all the issues, but can probably find some common ground on some issues and capitalize on that. Small successes can lead to a trend.
You may want to start off with something that really is a nonissue. For instance, if you know that you have to pay child support and you know (roughly) what the amount will be, engage in a conversation about that. You may want to pretend that you need to discuss the topic because you want to talk about the format for the payments (whether it would be agreeable to split the payments in two, and pay half on the 1st and half on the 15th of each month). You do that knowing it’s non-contentious, and hoping that the discussion will send a message that you intend to be fair. This kind of approach can help to create and build calm.
Even if you know that your spouse will never compromise on certain issues (custody, for instance), you may want to try to settle other issues such as money matters and leave the “unresolvable” custody issue for later. At the end of your discussions, you may be surprised to find that you have accidentally settled everything. Or perhaps you’ll settle most of the issues and only need help on a couple of contentious points. If you eventually go to a mediator or lawyer with one issue instead of five, you’re likely to be far more satisfied with the justice system, and you’ll save a lot of money.
Before you do any of this, however, it’s important to mentally prepare, which leads us to Chapter 3.
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