Is Your Divorce Attorney Wearing Two Hats?

You cannot wear two hats at the same time. You cannot wear a mediation hat at the same time you are wearing a litigation hat. While I am sure that many family lawyers out there will be shocked to hear this, I think that every attorney and client should agree prior to attending mediation that, if the mediation is unsuccessful, the attorney is going to withdraw or assign the case to another member of the firm.Dr. Calloway continues:
Think about it. An attorney who is going to remain in the case regardless of whether the mediation succeeds cannot possibly be “all in” at the mediation. He or she is constantly thinking about his or her litigation strategy and what will happen if the case goes to trial. It serves as a pervasive impediment and hinders the parties’ ability to reach a settlement.She concludes her point by saying:
There is a reason that mediations are mandatory: settlements are better than litigation, especially for children. This is a well-known fact from literature on children and divorce. Hence, why not give yourself the best chance of settling the case? Advocacy as an attorney at mediation and advocacy as a litigator are two completely different things. If litigation remains an option, the natural tendency is to say, “Fine, we’ll just take it to court.” If mediation is the only option for resolution of the case, the parties have no choice but to compromise and reach a settlement.Dr. Calloway nails the inherent problem with expecting one attorney to both fight and resolve a case. Even seasoned divorce attorneys know that, in our own heads, and in our professional conversations, we roughly classify each of our cases as a “settlement” case or a “litigation” case. Attorneys may litigate some settlement cases and settle some litigation cases. But, we know what Dr. Calloway says to be true: An attorney cannot simultaneously put all of their effort into settlement and all of their effort into buidling a lawsuit. Collaborative divorce attorneys are “all in” for the settlement of divorce issues. We agree up front that we will not litigate a case. We do not even try to wear two hats. Experienced collaborative attorneys, myself included, strongly believe that this commitment is the key to resolving divorce cases effectively and efficiently. If you are searching for a divorce attorney, give some serious thought to whether you want an advocate that is going to be “all in” in helping your resolve your case or one that will wear two hats, as Dr. Calloway puts it.
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