Memphis Injury Lawyer Blog

I have been mediating and litigating Tennessee and Memphis divorce cases for over 30 years. One lesson learned has repeated itself to me over that entire period of time. In a nasty, brutal divorce or child custody case, the only winner is the lawyer. mediation has come to be required in Tennessee within 120 days of the filing of divorce cases. However, this rule is often overlooked or ignored by clients and their counsel. Even when mediation is pursued there is one ingredient that no Court can order: cooperative interest based negotiations. In other words, resolving disputes without blame placing or making decisions based upon anger or hatred. Some Judges will not order mediation unless both parties agree to try and negotiate in good faith.

Last year over 30,000 divorce cases were filed in Tennessee. If you look backward in time, the statistics show that this number is consistent with the trend that began several years ago. Perhaps, given the fact that divorce has become more instead of less expensive, a legislative approach may be required. According to Tennessee law, the court has the authority to award a party all or part of his or her divorce attorney's fees and costs of litigation. However, the modern trend, it seems, is to award these expenses in limited circumstances. One can only wonder as to the impact of a change in the law requiring a Court to award a party all of their attorney's fees after the date of a mediation if the other party could be found to have not negotiated in good faith.However, one of the hallmarks of mediation is that the process is confidential such that the positions of either party are not to be disclosed to the Court if the mediation fails and the case proceeds to trial. That's the rub.

Since over 50% of marriages fail in the United States, new methods for ending this emotional and financial arrangement are coming to into vogue. Collaborative divorce is the newest method of alternative dispute resolution in family law. It can best be described as a method of practicing law in which the lawyers for both sides (parties) agree to assist the clients to resolve conflicts by employing cooperative techniques rather than adversarial strategies and litigation. All of the people involved commit themselves to achieving a negotiated outcome. It is agreed that no litigation will be commenced during the negotiations. www.collaborativedivorce.net

In reality this is nothing new. Most family lawyers would rather negotiate than litigate. It was standard practice for many years for both lawyers to meet to try to identify the issues in dispute, if nothing else. Then we entered the "My lawyer can beat up your lawyer" era. Now it seems that civility and common sense have become so wounded that neither ideal can survive a divorce where there is much at stake. The only way to change this is one lawyer at a time; one case at a time; and most importantly- one client at a time.