In researching an article for another post, I ran across an article at WebMd has The Pain of Post-Divorce Parenting which I thought had some very commonsensical advice until I got here:
"Lawyers are paid by the hour," says Robert Billingham, PhD, an associate professor of human development and family studies at Indiana University and a divorce researcher. "It's not in their best interest to settle things quickly." Courts often offer free or low-cost mediation, a process in which one lawyer or paralegal works with both parents to settle the details of a divorce. This process allows the couple to peacefully agree on most decisions, such as custody, visitation, and support, rather than leaving these issues up to courts or lawyers. "A lawyer can always look over the agreement to make sure it is fair before you sign," says Harwood.
No courts here offer free or low-cost mediation. Marion County requires mediation in many contested cases but the mediator is someone the clients pay and they do pay a mediator on an hourly basis. Perhaps the IU professor should take a drive up 37 to Morgan and Marion Counties to find those free or low cost mediators.
I know one Madison County judge who has said he does not favor mediation because of its added cost to the clients. I still believe that mediation is a cop out for lawyers and judges who do not want to do their job. Cases should settle unless one or both of the lawyers lack control over their clients. Our duty requires us to follow the client's instructions with certain exceptions. Therefore, settlement rises or falls with the clients and not with the attorneys. Where the lawyers can - and sometimes should - be faulted occurs when we do not properly educate our clients in the strengths and weakness of their case on a legal and factual basis. Still, the factor complicating family law cases are the parties' emotions.
Indiana law favors settling cases. We have several methods for settling a case available to us. Since we now have The Indiana Child Support Guidelines and The Indiana Parenting Guidelines, child support and visitation provide few disputes. We have had a statutory presumption of property being split 50-50 that is over thirty years old and there may be some fights there over how and what to divide, but those cases are not very common. We also have one unwritten resource for leveraging a settlement - the trial judge's discretion to do just about anything he wants to do. I tell my clients that a bird in the hand is better than two in a bush - settlement leaves control in the parties' hands and out of the judge's hands. I know many judges who think that if both parties in a divorce leave court angry over their decision then the judge did his job right. I tell my clients about this, too.
Many years ago I had a horrible case with an opposing attorney with a reputation for breathing fire. I must admit that she surprised me by offering to settle the case. The four of us sat in the court's jury room trying to find a solution that both clients could live with but we failed to find any solution. The problem lay with the debts - too many debts, finances dependent on both incomes being intact, and a strong bitterness over the divorce by both. The husband had a tax write off scheme involving feeder pigs. We could find no way to satisfy both of the clients. We put the case in front of the judge. The judge made an even worse mess of it than anything that either side had proposed in the jury room.
Something that many client never realize is this: there are no winners in divorce. The best that lawyers can do for their clients is fix things so that the clients survive the divorce and can get along with their lives. One client many years ago was upset when she got out of the marriage without any debts but without the house. She was a waitress making less than minimum wage, the house was in far from a good condition, and had more debt than equity. She had agreed to this outcome after being told all the pros and cons. What happened? Somebody told her afterwards that she ought to have gotten the house. I still think that sisters, mothers, best friends, and hair dressers have more influence with clients than I do. Would that those people had to put their opinions to test before a judge.
Other than money, custody creates the most litigation. Most parents can agree about the children's best interests but it is a mess when they cannot. I cannot think of a single attorney who anticipates a custody case with anything like glee. We bear the stress of these cases, too. Who gets blamed if the judge disagrees with the evidence? The attorneys. I have always been selective about the custody cases I take but I have become even more so as I have gotten older.
As for the attorney can always sign off on a mediation agreement, this is utter garbage. I am not going to sign off on an agreement when I do not know the facts and to get the facts costs money. The single most expensive part of divorce litigation (any litigation) is discovery - getting and giving information and facts about the case. I need to know that the child support agreement is supported by the numbers. If not, I must explain to the court why there is a deviation. I will want to make sure that the visitation/parenting time and custody agreements are in the best interests of the children. After all, the law requires the court to make sure that the children's best interest receive full protection. Finally, I want to make sure that my client has not been browbeaten into an agreement. Yes, this can happen in mediation although the mediator will not be aware of the coercion.
One last thing, I think that paragraph grossly underestimates the intelligence of most clients. Clients know the cost of things. They know their available assets. The only clients I know of for whom cost is no restriction are those who hire the attorneys with the reputation of bullies for the purposes of beating up their spouses. Yes, there are those attorneys but they are few. Family law attorneys shoulder a greater amount of stress than about any other type of lawyer. Those who do it for a quick buck do not last very long and those whose chief strategy consists of their bullying the opposing party dwindle over the years. Luckily, the bullies attract like-minded clients.
Do read the article but I suggest the psychologists keep to their business. After all, I do not pretend to being a psychologist. I thank you for persisting till the end of this rant.
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