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

Published online by Cambridge University Press:  01 July 2024

Howard S. Erlanger ,
Elizabeth Chambliss  and
Marygold S. Melli
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Abstract

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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.

Type
Research Article
Information
Law & Society Review , Volume 21 , Issue 4 , 1987 , pp. 585 - 604
Copyright
Copyright © 1987 The Law and Society Association.

Footnotes

The research reported here was funded in part by Grant No. SES-8024543 from the National Science Foundation, Howard S. Erlanger and Marygold S. Melli, Principal Investigators, and by the Summer Research Program of the University of Wisconsin Law School, Madison. The opinions expressed are those of the authors, not the sponsors. Of the many colleagues who offered helpful comments, we would especially like to thank Dirk Hartog, Robert Kidder, and Stewart Macaulay.

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