One thing that I try to convey to clients in family law or divorce matters is the difference between control and influence.
Control is the ability to determine the outcome of a situation. In contrast, influence is the ability to affect the outcome of a situation in some way.
Understanding how these differ, and how they play into an issue are crucial to productively resolving family law legal matters.
In short, there is no control over a family law matter. So, clients need to maximize their influence.
Many clients want to control the outcome of their legal issue. However, the reality is that no one party or attorney can control the outcome. That is true in both negotiation and in the courtroom. In negotiation, any resolution is by definition voluntary. And, neither party can force the other to agree to anything. Since neither party can control the other, neither can control the outcome of a negotiation.
Many people and clients come to me with the belief that they can control the outcome of their case if they go to court. This is, in fact, a myth. In court, only the judge controls the outcome. This is especially true in custody and spousal support cases. In those cases, there are few established guidelines for a judge to follow. Thus, a judge exercises wide discretion in making decisions. (There are more structured guidelines for judges deciding property division and child support issues).
So, regardless of whether a client is negotiating or in litigation, no one party can control the outcome of their case. Actually, many clients know this before they come to me. And knowing that they cannot control the outcome naturally creates a lot of fear for them. The typical response is to try to find a way to gain control. I believe that many family related lawsuits are filed out of this desperate attempt to gain control over the outcome and reduce fear.
I have found (as have most of my clients) that the better approach is to make the most out of a client’s influence over the outcome of a dispute. In reality, all a client (or an attorney, for that matter) can do is influence the outcome.
Processes such as mediation and Collaborative Law maximize client influence over the outcome of a case. Mediation and Collaborative Law give clients influence in determining what issues will be negotiated, how the issues will be negotiated, when the issues will be negotiated, whether the issues are resolved and the terms by which the issues are resolved.
That is maximum influence.
Allowing a court to tell you what you can talk about, when you can talk about it, how you can talk about it and ultimately what you are going to do with your life, children and worldly possessions is not maximizing your influence over your matter. That is minimum influence.
My advice: Before you make decisions in a family law matter, consider whether you are exercising maximum influence or operating under the myth of control.