What keeps people from trying to reach a negotiated or mediated divorce settlement?

Question

Two people close to me are going through a divorce. I am trying to understand why they are spending so much money on lawyers' fees rather than even trying to reach a negotiated or mediated settlement. This question is asked in order to get some broader perspective. In general, what can keep two people who both want a divorce from pursuing a negotiated or mediated route?

Answer 1

Acrimony

Mowzer makes some good points. Another one is the parties may just hate each other. In some strands of legal theory, it's considered a type of transaction cost that keeps people from bargaining before and after litigation.

Answer 2

Lack of common ground for a compromise

Sometimes the parties' positions are just so far apart and so entrenched that no compromise is possible. If both parties are fully and utterly convinced that their desired solution is the only fair solution, no compromise is possible - then only a court can break the tie.

As far as I can see, this most frequently occurs with questions where it's difficult to split 50/50 and where a lot of emotion is involved, such as:

• common children
• the (formerly) shared home

Answer 3

Other reasons mentioned in other answers have some merit, but here are two more important ones that hasn't been mentioned yet.

Uncertainty

Negotiations in court cases generally take place "in the shadow of" an expected range of outcomes if the parties go to trial.

People don't spend money on lawyers when the outcome is highly predictable and clear. In those cases, they reach a deal close to the one that would have occurred if they went through all of the motions at trial.

But, when there is great uncertainty regarding the outcome, and the range of possible outcomes is wide, both parties tend to expect that the likely outcome will be on the favorable side for them, because that is human nature, which tends to leave people with negotiating positions that are far apart. The more uncertain the result is likely to be a trial, the less likely people are to be able to reach a compromise.

Outcomes in divorce cases are among the least predictable in all of the law. Two judges can come to very different conclusions on exactly the same set of facts without making any errors of law or abusing their discretion in any way that is plausibly subject to a successful appeal. The outcomes are even less predictable before a particular judge is assigned to the case and the assignment of a judge only helps reduce uncertainty when experienced divorce counsel know the judge's likely inclinations in a case from prior experience.

About 95% of custody decision-making is governed by an utterly vague and vacuous standard that the judge should make an order consistent with "the best interests of the child(ren)." Basically: do the right thing. This means that almost any custody decision imaginable is possible.

Judges have historically had vast discretion in whether to award alimony, and over how much should be awarded for how long if it is granted, although some states have recently moved to curb that discretion.

Judges have had less historical discretion over the relative value of property division awards to each spouse, but still have nearly absolute discretion to decide who gets what and great discretion regarding how certain kinds of assets are valued.

Judges routinely urge parties to settle because that eliminates the risk of unpredictability for them, but in truth, the less predictable the outcome is, the more reluctant the parties are to reach a settlement.

Pro Se Parties

In most divorces in the U.S., neither party has a lawyer. Close to half of the rest of divorces have at least one party without a lawyer.

People without lawyers bumble through the court system, routinely make deep conceptual mistakes about the process, and fill out their forms wrong as well. For example, people without lawyers often fail to exchange information that is required to be exchanged by law and is a foundation to being able to reach a mediated solution. If the right information hasn't been exchanged, a judge won't even accept a resolution that has been reached.

Their unrealistic assumptions and outright misinformation about the process often derail realistic mediated solutions that would be available if both sides had good information, and there is only so much that a mediator can do to remedy this situation without becoming a lawyer for one or both of the parties.

Answer 4

1. Inexperience with mediation.

If they have not done mediation before, they might not be aware it exists. Much less the improvements it can offer over the traditional court method. Mediation is considered alternative dispute resolution process. And everyone is not always aware of what the alternatives are in their situation and what the advantages might be.

2. Mediation might not be "pushed" by the attorneys.

The practical reality is, the lawyers make more money when people go to trial. So they might not push the advantages of an alternative dispute resolution process when the parties won't spend even a fraction of what they otherwise would on legal fees. This point is controversial to mention, but a practical reality in my personal experience.