THE BLOG
10/28/2013 12:42 pm ET Updated Jan 23, 2014

Important Distinctions Between Litigation and Mediation

I recently attended the American Bar Association 2013 Family Law CLE Conference that took place in Deer Valley, Utah. Although I have been practicing law for over 22 years, I am embarrassed to say that it was only the second time that I attended this wonderful conference. The first and only other American Bar Association conference I ever attended was the Family Law 2013 Spring CLE Conference in Anchorage, Alaska. I attended that event because I had been selected as a panelist for a program titled, "Navigating the Emotional Currents of Collaborative Law." I am so grateful to those individuals involved in selecting me for that panel for so many reasons, not the least of which is that it was my introduction to an amazing organization and an incredible and talented group of attorneys and related professionals. The programs are topnotch and I have had the pleasure of meeting some of the most well-respected family law attorneys in the country, some of whom have already become good friends. Of course, the fact that the conferences take place in such incredible locations is icing on the cake. The Montage Deer Valley is one of the finest and most spectacular hotels I have ever seen. It is no surprise that the Montage Laguna Beach was my late mother's favorite hotel anywhere and she stayed at some of the finest hotels in the world.

In any event, I wanted to share a common theme from the conference and describe how that theme plays out differently depending upon the approach taken. Steven Peskind was the first to introduce the theme when he said, "Too few lawyers settle cases early and too many lawyers settle cases too late. Work harder to settle cases early. Settlements are better for the clients." He also said, "A bad settlement is better than a good verdict." Although not part of the conference, Bernard J. Berry, Jr. explained the reasoning behind this in a short article he wrote titled, "A Business Approach to Litigation - Facing Reality - Fewer Trials." In that article he stated, "In most cases, the risk of pursuing a lengthy and costly trial outweighs the reward a party receives at the end of a trial." The theme was raised next by Phillip Tucker in a completely different program; he reminded us that too few attorneys settle cases early and too many attorneys settle cases late. According to Randall Kessler, "Judges like settlements and lawyers who settle cases. If you want a judge to order attorneys fees in your client's favor, document all of your settlement efforts." I should point out that all of those statements were made in programs relating to divorce litigation. Considering that Gregg Herman's presentation titled "The Ten Commandments of Divorce Settlement Negotiations" was sponsored by the Alternative Dispute Resolution Committee, it can be no surprise that he said the following: "Most agree that a bad settlement is better than a good verdict. Obviously, however, a good settlement is even better." Last, but certainly not least, Christopher Melcher said, "Risk of malpractice is much lower with regard to settlements than trial. If you don't get the result the client likes at trial, they blame the attorney. It is much more difficult for a client to explain why they settled a case." In other words, settlement benefits both lawyers and litigants alike.

The first presentation titled "100 Days Before Trial - No Time to Lose" took place at 7:00 a.m. on October 17, 2013. Christopher Melcher was one of the panel members and he instructed us to be very specific when seeking documentation and information to prepare a case for trial because you might otherwise obtain information that weakens or otherwise destroys your client's case. In essence, Mr. Melcher was saying that "ignorance is bliss." From my perspective, this information will most likely come out one way or another at some point and I don't understand who benefits from delaying the inevitable, except for the attorneys and the bills they run up in the meantime. The law is not a game, especially when families are involved. I want to be clear that I am not insulting Mr. Melcher or anyone else who presented at the ABA conference. They were advising their audience of attorneys how to properly play the "litigation game", as it is currently designed. As I always like to point out, however, outcomes are determined by the way in which the game is designed. How are the dynamics of the family ultimately impacted when the family is subjected to the "game" of litigation?

William Biviano was a panelist on "Searching for Mr. Green: Getting Paid for the Work You Do." During that presentation, he said that "prepping a case for settlement is also prepping the case for trial." It can be no surprise to anyone that I disagree with this statement. This is the difference between prepping to settle a case based upon "rights and obligations" vs. "needs, interests, values, goals and fears." The difference is between a "litigated settlement" and a mediated settlement. People tend to be just as unhappy with "litigated settlements" as they are with court orders. Among other things, this is reflected in compliance issues.

Another pointer we received during the conference was to keep the judge engaged with visual material, if you have the technology. Otherwise, the judge may very well be "checking their email" or doing other such things. In fact, Randall Kessler said, "Some judges have short attention spans." Isn't it nice to know how we must present cases to our esteemed judges? Maybe we should make avatars to assist in "putting on the show." Oh, I forgot, some of us have already started doing just that.

Throughout the conference, the panelists kept reiterating that what occurs in court is state specific, "locale specific," and jurist specific. In other words, results vary from judge to judge based upon the judge's biases, beliefs, assumptions and values. I think this should really scare anyone and everyone.

Now that I have described some key points raised in the programs offered to the family law litigators, I will now share what I learned in the program sponsored by the Alternative Dispute Resolution Committee. According to Gregg Herman, the "Ten Commandments of Divorce Settlement Negotiations" are as follows:

(1) Be cordial because you catch more flies with honey than with vinegar. Contrary to popular belief, this is not inconsistent with obtaining the best financial result.
(2) Do not give ultimata - "take it or leave it" offers. There are better ways of communicating limits than saying that if the offer is not accepted, the case will proceed to trial.
(3) Do not give deadlines, which are like ultimata. Rather, you should provide the reason a prompt response is needed. As I have written about in the past, "words have meaning" and the manner in which information is conveyed is important. The exception to this "rule" is if the offer is absolutely sensational.
(4) Make disclosure. Rather than waiting for the other side to request information, just give it to them. People won't negotiate if they feel that they are being asked to make uninformed decisions. If you are going to ultimately turn the information over through formal discovery or court order, why not just do it nicely and be forthright?
(5) Don't be afraid of taking the first step. In fact, first offers tend to be very powerful anchors and have a great deal of impact on the ultimate outcome of the case. Mr. Herman suggested that we read "Freakonomics" and "Super Freakonomics" because they cover this concept very well.
(6) Never negotiate backwards, unless the facts have changed. In other words, subsequent proposals should move closer toward resolution, rather than farther away.
(7) Never refuse to negotiate. Always remember that you don't have to negotiate with your friends; therefore, with whom do you think you must negotiate?
(8) Never get personal. When you take something personally, you stop listening. You can hear a great deal by listening.
(9) Never get angry at a settlement proposal.
(10) Be prepared.

Mr. Herman ended the program with the following quote from Mahatma Gandhi: "My joy was boundless. I had learnt the true practice of law. I had learnt to find out the better side of human nature and enter men's hearts. I realized that the true function of a lawyer was to unite parties riven asunder. The lesson was so indelibly burnt into me that a large part of my time during the 20 years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases. I lost nothing thereby, not even money, certainly not my soul."

Interestingly, the day I returned to my office following the conference, I was served with a Request for Order Re Child Support, Spousal Support and Attorneys Fees and formal discovery from the opposing counsel on one of my cases. Regardless of process, I only like to work on cases wherein the parties want to resolve their differences in a constructive manner -- attempt to reach a win/win result. When I am retained to represent one of the parties, it is because the client self-selected me for just this reason. When and if it becomes clear to me that the other party and/or their attorney strives to be destructive, I tell my client that it is time for me to pass them off to a suitable colleague. I did just this shortly after receiving these documents from that attorney. However, prior to turning the file over, I wrote the opposing counsel the following letter:

"I am in receipt of the Request for Order Re Spousal Support, Child Support and Attorneys Fees that you filed with the court on October 16, 2013. I am also in receipt of the Form Interrogatories and Demand for Production of Documents that you had served on my office on October 18, 2013.

As I mentioned to you when I was first retained by ****, I only handle matters wherein the parties and their counsel want to attempt to resolve matters constructively, which means outside of court. At that time, I also mentioned to you that I believe in efforts to exchange informal discovery in order to save unnecessary money, before resorting to formal discovery.

Since your office has filed the above-mentioned Request for Order and served formal discovery prior to making any effort to resolve the issue outside of court, I will be advising my client to retain suitable litigation counsel. While I am perfectly capable of handling such matters, I find it unnecessarily destructive to families and opt not to participate any longer.

At this point, I would like to refer to you California Family Code Section 271(a), which provides in pertinent part as follows: 'Notwithstanding any other provision of this code, the court may base an award of attorneys fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys....'

In the past, I have been highly successful in defeating requests for attorneys fees under these circumstances and have referenced Section 271(a) in my Memorandum of Points and Authorities. I will make sure that Mr. ****'s replacement counsel follows in my footsteps in that regard.

I am sorry that it appears we will not have an opportunity to work together on this case any longer."

Later that day, I received a very polite voicemail message from that attorney. He advised me that the Request for Order was merely filed to preserve retroactivity of support and that we should work toward a settlement and that we could do informal discovery and put the formal discovery on indefinite hold. After communicating with my client, I left the attorney a message the following day, advising him that I would continue handling the case on the following two conditions: (1) He immediately continue the hearing on the Request for Order. If, as he had stated, he only filed that Motion in order to preserve retroactivity of support, the continuance would not harm his client in the slightest. (2) We conduct informal discovery and that his formal discovery be placed in indefinite hold. I told him that my client and I would be more than happy to provide him everything and anything that he wanted. That message was left for him on the morning of October 22, 2013 and I never heard back from him. As they say, silence is golden. I can say without hesitation that the opposing counsel on that case wants to play the "litigation game" because he makes more money, among other things. Why else would he have ignored my request? After all, my client has been providing his spouse with funds since they separated and she has sufficient resources to meet her expenses in the meantime.

This all goes back to the first article I wrote for the Huffington Post titled "The Personality and Philosophy of Attorneys Impact the Results."

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