Litigation vs. Negotiation
Economic and Practical Advantages of Reaching an Agreement
In any litigation, matters can be settled either by negotiation between the parties, or by litigation in the courts. We feel strongly that a negotiated settlement is almost always preferable . . . for both parties. In a negotiation, everyone makes some concessions in order to arrive at a settlement that they can live with. When the resulting agreement is finalized and signed, both parties know exactly the terms under which they will live.
The “Scales of Justice” are held by people . . . not statues.
On the other hand, choosing to litigate any matter through the court system leaves the final decision to a third party — a judge or hearing examiner — whose skill level, experience, judgment, and personal legal agenda are not predictable. While the negotiation process gives your attorney the opportunity to fashion innovative ways of dividing marital property in a manner which is more advantageous to their client, a judge, faced with the same issues, is much more likely to apply standard cookie-cutter solutions to often complex problems. More importantly, at the end of the hearing or trial, a judge may issue a ruling that neither party likes, but both will have to follow.
Comparing Expenses of Litigation versus Negotiation
Time spent in negotiations has full value for the client, because the client is only paying for time actually spent trying to reach a resolution of their matter. Often in divorce proceedings, one of the parties is either in complete denial of the whole process, or convinced that they are entitled to certain demands (financial or otherwise), even when there is no legal basis for those demands. Getting that party to understand the complicated nature of New York State’s laws regarding divorce and equitable distribution of marital assets, often takes time. It can be emotional and difficult for both parties, but our firm has developed specific ways to help to avoid some of the stress associated with head-to-head negotiations. Ultimately, the numbers of hours necessary to settle cases is, in almost every circumstance, less than the number of hours necessary to try the matter, which means it can be done at less expense to the client.
On the other hand, fully litigating a matter through the court system involves many, many hours of billable time that have nothing to do with the ultimate settlement of your matter. Cases which cannot be settled often involve a good deal of pre-trial motions, which means that your attorney will be billing you for writing, submitting and serving what are often enormous amounts of paperwork. On the day (or days) of court conferences and trial, attorneys and clients often have to sit for hours in the hallways (hours which have to billed to the client), waiting for the judge to finish with his daily calendar before starting the scheduled hearing. Trials are often conducted on non-consecutive days, meaning that the parties may have to take additional days off from work, which results in further costs to the client. Judges are acutely aware of the emotional and economic frustration of the litigants, and the wasted time spent waiting for each matter to be heard, but the Judges have a multitude of cases they must dispose of on a very carefully monitored schedule. Consequently, the Judges’ agenda is clearly to get the parties to settle, and they will use their judicial authority in induce litigants to do just that, thereby removing the matter from their very overcrowded court calendars.
Which makes more sense?
There are, sometimes, issues that people cannot settle in negotiations. In that instance, relief must be sought from the court. For a client, long unproductive hours spent in court can be a financial disaster, and the judge’s final decision can be frustrating. It is our belief that, in the interest of the client, an ethical family attorney will attempt to settle all possible issues out of court. The resulting agreement is something to which both parties will have to agree, and along with that agreement often comes a determination to make that settlement work. A judge’s decision, on the other hand, may not answer the needs of either party, and can create the likelihood that resentment over the outcome may influence both parties’ ability to abide by the court’s decision. And when one party cannot follow the court’s direction, that path leads directly back to court.