All too often in post-divorce litigation, we meet with a potential client who tells us how he got a bad deal and that the prior lawyer (if there was one) did a bad job, sold him out, did not care, and all sorts of other reasons. Aside from the fact that both litigants presumably entered into the agreement knowingly and voluntarily, understanding all of its terms and knowing that they each had the right to a trial instead of settlement, and testifying as much in court, how does this mindset impact upon a post-Judgment matter?
Typically, not well. In fact, it is that sort of mindset that can turn a simple matter into a hotly contested, lengthy and costly post-Judgment litigation where the litigant is so concerned with making what he believes is another bad deal that he may even rather go through a trial and have a judge make the decision than privately reach a resolution. He may even hire a lawyer with the directive that the lawyer has to take a hardline position until the matter’s conclusion so that he does not think that there was a repeat of the divorce result. Everyone ultimately pays the price in the end in counsel fees and potential expert fees, but that only seems to matter to the other party. In other words, cost is no object to the litigant who believes that he got a bad deal – he will not rest until a “tit for tat” bad deal is reached that, in his mind, somehow levels out the bad that he believes happened to him during the divorce.
Indeed, I once litigated a post-Judgment alimony reduction matter where my client (the supported spouse) willingly let the other party (aka, the party who believes he got a bad deal) choose the mediator. When the mediator did not want to hear what he had to say and told him that he was being unreasonable, he immediately ended the mediation session and refused to return to that person. I then provided him with the opportunity to choose the next mediator. When meeting with the new mediator, he similarly became frustrated, and even argued with the mediator when told that he was being unreasonable. Tellingly, with both mediators, he conveyed that he was unhappy with the deal that he got in his divorce and that he thought his lawyer at the time did a bad job. The mediators knew, from then on, that the matter was not just about resolving the present issue, but dealing with someone who was not going reach an agreement unless he felt that he had somehow “won” and overcome his feelings of the prior settlement agreement.
Ultimately, we reached a settlement that provided both parties with what they wanted, but it was not without its scars, and not without counsel fees far exceeding the amount at issue. Unfortunately, there is only so much that a party can do when the other party is litigating with this mindset – a proper counsel fee application can be made at the end of the matter.