A client may decide to hire an attorney to represent the client in the drafting and/or negotiating of a settlement agreement and (if applicable) an uncontested no-fault divorce. On occasion, for various reasons, the client may decide not to use Mediation or Collaborative Divorce (these are two process options for settlement and have guidelines and rules of engagement outlined in a written process agreement signed by the parties before commencing the process).
The choice to hire an attorney and settle out of court without using Mediation or Collaborative Divorce is most often seen in one of the following scenarios (although there may be others): The parties already have a pretty clear verbal agreement regarding their settlement and there is very little, if anything to negotiate; One party does not intend to engage an attorney and is choosing to represent oneself; Mediation is not desirable (a client may want an attorney handling all communications and does not want to engage in dialogue with the other party); Collaborative Divorce is not an option if either party has selected an attorney that has not been trained in that process; or It is more practical and efficient for an attorney to obtain the disclosure needed/desired by the client and to prepare a proposal to send to the other party or that party’s attorney (i.e., the parties are far apart geographically, time is of the essence for a particular reason and it does not appear there is much to negotiate).
Reaching an agreement using this approach is most successful when the drafting and negotiating is not adversarial in nature (which may provoke the other party to respond aggressively). The proposal can invite the responding party to identify issues remaining and convey a willingness to use a problem solving approach to reach a settlement.
The parties should select attorneys who have training in interest based negotiation and other skills used in reaching out-of-court settlements. These attorneys may have a practice that is more heavily focused on settlement than litigation. Further, choosing an attorney with a Mediation and Collaborative Divorce can be viewed as less threatening to the other partner/spouse, and lay the foundation for an amicable settlement.