Participation and Flexibility in Informal Processes: Cautions from the Divorce Context

Abstract

Based on open-ended interviews with the parties and lawyers in twenty-five informally settled divorce cases, this study finds that the informal process is often contentious, adversarial, and beyond the perceived control of one or both parties. Although settlement in some cases reflects flexibility, party participation, and true agreement, in most cases it reflects unequal financial resources, procedural support, or emotional stamina. Parties report settling issues such as child support according to nonlegal, situational factors—particularly their relative impatience to finalize the divorce—and mutual satisfaction with settlement terms is low. Our findings raise questions about the assumed value of informal settlement. However, we recognize that informal processing of divorce is structurally and institutionally inevitable (with or without evidence of its desirability), and we suggest that reform efforts must ultimately recognize both the inevitability and the limits of informal process.

Coordinating in the Shadow of the Law: Two Contextualized Tests of the Focal Point Theory of Legal Compliance

“…Similarly, there is a pervasive element of coordination in the kind of disputes and negotiations more typically studied by lawand-society scholars (e.g., Macaulay 1963;Erlanger et al 1987;Edelman et al 1993). All that is necessary (among other possibilities) is that the parties involved in a dispute jointly regard some outcome as the worst result.…”

Narratives and Narrative Structure in Plea Bargaining

“…It additionally implies a comparison with informal negotiations in other legal arenas, including civil cases such as divorce (see, e.g., Erlanger et al, 1987;Mnookin and Kornhauser, 1979). This means studying narratives in different plea bargaining settings, such as those involving felony offenses.…”

Adversarial agreements: The attitudes of Israeli family lawyers to litigation in divorce practice

“…Kagan (2001), Galanter and Cahill (1994) and Erlanger et al (1987) maintain that uncertainty about the outcome of court cases is related to a greater propensity to settle, and a number of observers (e.g., Emery, 1994;Garfield, 2002) have suggested that one of the reasons clients want mediation is the unpredictability of litigated outcomes. However, Hunter (2003) has pointed out that settlement in family law is the norm despite the fact that judicial outcomes are considered highly predictable in the Australian setting she studied.…”

“…It has also been said that a belief in the unpredictability of judicial decisions makes settling a more attractive option (e.g., Galanter and Cahill, 1994;Erlanger et al, 1987). In order to examine the relationship between the view of judicial decision-making as unpredictable, and adversarial attitudes and behaviors, each of the respondents was asked to indicate to what extent they could predict the outcome of court decisions on the various issues involved in divorce (on a scale of 1-very predictable-to 5-very unpredictable).…”