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Although most cases eventually settle without trial, the negotiation process often is not pretty.
In "litigation as usual," settlement often comes only after adversarial posturing, the original conflict escalates, the relationships deteriorate, the process takes too long and costs too much, and nobody is really happy with the resolution. This article describes roadblocks to negotiation and ways to overcome them to reach good settlements in family law cases.
Roadblocks to Settlement
Parties and lawyers often have multiple fears about negotiation, prompting them to procrastinate and/or take actions that make settlement more difficult. I call this the "prison of fear" in my book, Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money, and my article, Escaping from Lawyers' Prison of Fear, 82 UMKC L. Rev. 485 (2014). Of course, this is not a literal prison made of bricks and mortar. Nonetheless, it prevents people from acting constructively, often blocking them from doing what they would want if they weren't so afraid. Lawyers frequently have these fears, which also sometimes infect parties.
Part of the legal lore is that lawyers suggest negotiation only if they have weak cases. Many lawyers are very afraid of appearing weak, which they fear will cause the other side to try take advantage. Lawyers worry that the other side will sniff weakness from the mere suggestion of negotiation and then act tough. For example, lawyers may fear that a suggestion to negotiate would cause the other side to drag out the process, refuse to provide relevant information, act in a contentious manner, and make extreme demands. Thus lawyers might worry that their client would lose confidence in them for not aggressively protecting his or her interests and/or that the client would make excessive concessions due to pressure from the other side.
So, for many lawyers, litigation-as-usual feels like a safer course. By taking tough positions and litigating vigorously, they demonstrate to the other side and their clients that they will not be pushed around or "give away the store." By waiting to negotiate until discovery has been completed, lawyers can protect themselves and their clients from making bad decisions due to a lack of important information. If they wait long enough, perhaps the other side...