Can Mediation or Collaborative Law Ever Be A Waste Of Time, Energy and Money?March 17th, 2017
submitted by Art Kewin
Many people wisely choose to avoid the hostility, delay, expense and uncertainty of litigation. They may also want more influence on the negotiating process itself and on the outcomes. Therefore, they hire a mediator or collaborative lawyers.
However, sometimes that “smart money” choice leads to an astonishing waste of time, energy and money. How can that happen when mediation and collaborative law are specifically designed, and the professionals are specially trained, to help spouses save time, money and energy when negotiating the terms of their separation?
A common cause of that waste is “stonewalling” by one of the spouses or by their lawyer. If either of the scenarios described below arises, and if reason and better informed self-interest, do not overcome stonewalling, then pursuing out-of-court settlement is a fool’s errand.
Scenario I: Spouse “A” may,
• Exploit spouse “B”’s commitment to reach a non-litigious settlement by protracted avoidance, hiding assets or procrastination during the mandatory disclosure process. Their motivation is typically fear and/or ignorance about better options and of the true cost of avoidance, procrastination and fraud.
• A spouse may perceive – correctly or incorrectly – that they “win” by doing nothing. They may also think they will be worse off if they settle. Therefore, they stonewall to preserve the status quo.
Scenario II: Spouse “A”s lawyer may,
• Assume that mediators and collaborative lawyers practice superficially. In particular, without the rigor of financial and legal analysis required for litigation. Unfortunately, that assumption is sometimes well founded. Nevertheless, creating a fair, reasonable and financially realistic settlement requires the same level of timely disclosure and due diligence as preparing a case for Trial.
• A common litigation strategy when lack of diligence is perceived is to do nothing for a long time. Then, deliver a massive data dump and short notice Court application. “Trial by avalanche and surprise.” is the term of art.
When stonewalling persists, the legal option is to sue in the Supreme Court of BC. That option is very expensive in time, energy and money. However, it is less expensive than pursuing a fool’s errand.
There are other circumstances, for example violence or fraud, that require the protection of the Courts. However, most senior family Counsel and Judges agree that very, very few family cases need the on-going supervision or protection of the Courts.
D. Art Kewin, M.A.(Psych.), J.D., CFP
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