“I’m in litigation and I think my lawyer is slowing down my divorce. Is he (or she) drawing this process out to make more money off of me?” I’ve heard this countless times—usually from clients who are unhappy with their process, the size of their bill, or both. It’s likely that your litigator is slowing down your divorce—but not necessarily in money-grubbing way you think. In my experience, most lawyers try to work efficiently. Hours grow because of the nature of the litigation process itself—which is one reason why it’s so important for couples to consider their options before retaining counsel.
A good litigator is always preparing for trial. Every move your litigator makes is designed to build the best case in the event that you land in court. As a result, every good divorce litigator is simultaneously paving two roads to the same finish line. At the same time your litigator is actively engaging in settlement negotiations, he/she is also preparing your case for trial (for example, by gathering and creating compelling evidence). Splitting focus like this is necessary in litigation but inherently time consuming—leading to escalating bills and frustration for those who are ready to move on with their lives.
This is especially true for couples who are close to resolving many of the major disputes raised by their separation. When the finish line is so close, it’s hard to understand why your lawyer is preparing for a trial that is unlikely to happen. It’s also frustrating to see your lawyer making demands of your ex when you’re hoping to maintain the positive tone necessary to bring a reluctant partner over the finish line. That lawyer, of course, is just doing his/her job—but preparing for an unlikely trial might not be the right tactic for you.
Many of the clients I hear this from feel badly, because they like their attorney. They ask me why such a good person and professional isn’t working well for them. I tell them, you know the old saying, “it’s not you, it’s me”? Well: it’s not you, it’s not them, it’s the process that’s not working for you.
Since most divorces settle out of court, I often urge couples to consider mediation, which focuses on a single path towards resolution rather using scarce time, money and energy to prepare for an unlikely trial. Unless the couple falls into a group that’s unfit for mediation (like a history of domestic violence or an unwillingness to be financially transparent), couples who think they have a chance at reaching an agreement should start with mediation before engaging a litigator. Most couples shouldn’t spend time or money preparing for trial—as all good litigators are always doing. Instead of being frustrated with a process that’s not a fit for them, those couples should start with mediation—and use the leftover time and energy to build the next stage of their lives.