Having done over 1500 mediations, I have had the privilege of working with hundreds of lawyers. With few exceptions I have found them to be men and women of integrity, well intentioned and skillful.
Hiring a lawyer, which I personally have done many times, is sometimes the smartest thing one can do, in a given situation. Let’s take a look at what lawyers are trained to do, how they think, and when their skills can best be utilized.
Lawyers work in an atmosphere of combat. They are perceived and act as surrogate champions. That is, they are hired to stand in for a client who does not have the experience, knowledge & skill to stand up to a legal onslaught.
Lawyers talk in terms of death and winner – take – all.
Here are examples of the language that I hear from them. “I killed him in that trial. I am going to wipe her out on the witness stand. I murdered him in front of the judge.”
Parties Are Usually Mad
When people get into a lawsuit, they almost always get mad. They are angry at the perceived wrongs of the other party or they are mad at being attacked and fearful of what losing in the strange world of the court system may cost them.
Add to that the element of greed that sometimes comes into play (suing big Insurance Companies & hospitals for example) and we occasionally see some dark parts of the human spirit come forth.
So which kinds of situations call for an attorney and which do not?
Situations That Do Call For an Attorney
1. Complex Legal Cases.
If a person has a case where the content of the law is the primary driving
force, where legal definitions are important, expert witnesses are to testify,
where appeal is likely- these cases call for a lawyer who specializes in that
particular field of law.
2. Gaining at the Expense of the Other Side.
If a person feels the need to punish, embarrass, or humiliate the otherparty, or win a disproportionately large portion of what is to be divided, then trial and an experienced lawyer are absolutely necessary.
Mediation is an arena of compromise. It works very well for achieving settlement, minimizing costs, solving problems, getting new information, effecting healing, and reconciliation.
However, in mediation, the other side has to agree to the outcome or no settlement will take place. Obviously, the other side will not willingly agree to being punished, humiliated, or giving a blank check to you. The hospital, insurance company, or soon to be ex-spouse will seldom give in to what they think is an unfair result.
3. Avoiding Consequences
If a person wishes to avoid the consequences of his past actions or choices, then he or she will need a lawyer to have much chance to do so. The obvious example is the fellow who robbed the bank but is now desperate to avoid going to prison.
In our credit card cases, if the debtor wishes not to pay anything, he will need a lawyer to probe the legal technicalities like the statue of limitations and document deficiencies. He may then avoid owing any money.
Situations That May Not Call For An Attorney
1. Divorce Cases
When a couple are unable to communicate properly, when they do not have the skills to resolve conflict, or when one or both step out of faithful behavior, divorce often is the result. Frequently, they do not want to add to the misery of their spouse and understand that co-parenting and co-grandparenting requires future interaction.
Usually they are aware of their own contribution to the failure of the marriage and just want a fair settlement.
In these cases, hiring the meanest bull-dog of a lawyer that you can find adds to the problem and not to the solution. A champion schooled in adversarial techniques, trained to win at all costs, can add to the delay, expense, and lead the couple into unnecessary and lasting bitterness.
Now if getting more than half of the community property is the goal, or if punishing the spouse for their mistakes, is the goal, then yes a lawyer is appropriate and necessary.
Ways to minimize lawyer involvement in divorce would include the following:
a. Using mediation to settle the disagreements before hiring any lawyers
b. Settling the case by mediation and then crafting the legal documents yourself. The courts provide this assistance and thousands do it every year.
c. After settling the case by mediation, selecting one lawyer to craft the legal documents and make court appearances.
d. Each party taking the Settlement Agreement to his/her lawyer after it has been written but before it has been signed.
Mediation with an experienced neutral is an excellent way to resolve human disputes.
Church disagreements, employer-employee conflicts, divorce, probate quarrels, and estate cases primarily concern human issues.
They are best served by compromise and reconciliation not court battles.