Nearly every divorce case, at some point in time, is going to involve a settlement conference. A settlement conference can take the form of an informal meeting between the parties and their divorce attorneys, a mediation, or a more formal conference involving a judge (a “judicial settlement conference”).
The logistics of the judicial settlement conference will vary from jurisdiction to jurisdiction. In some jurisdictions, the judge who will actually try the case is the judge who conducts the settlement conference. In many large, urban court systems, cases are assigned for settlement conferences with one judge before the case is assigned out to another judge for trial. Sometimes the parties are involved in the settlement conference with the judge and sometimes only the attorneys are present, so as to facilitate frank conversation and avoid the posturing that often occurs when the parties are present. Regardless of the governing procedures in your jurisdiction, having a judge involved gives you the benefit of gleaning some insight from the court as to his or her view of the evidence and legal arguments in your divorce case; if your case is not resolved at the judicial settlement conference, this insight into the judge’s perspective may lead to more fruitful and productive settlement negotiations between you and your soon-to-be-former spouse.
The purpose of a judicial settlement conference (of any settlement conference, really) is to avoid the cost of a trial – the cost in dollars, the cost in time, and the emotional toll on the parties that cannot be quantified in dollars and cents. The courtroom is often a foreboding and frightening place to be for any non-lawyer. Add to all this the fact that, in a trial, one person (the judge) makes decisions that will affect the entire family for the rest of their lives. A judicial settlement conference can give you some control over the outcome of your divorce and allow you to move forward knowing that you, and not a stranger, decided how life would proceed in a post-divorce world.
The first key to a successful judicial settlement is solid preparation by your divorce lawyer. An experienced divorce lawyer will take the time to learn all the facts of your case and will know the governing law in your jurisdiction on all the key issues in dispute. An iron-clad knowledge of the facts and the law will ensure that the judge hears the most important evidence and legal arguments in your case, and makes his or her settlement recommendations based on a complete picture of the case.
You, too, must be well prepared for the settlement conference, whether or not you are allowed to attend under the rules in your jurisdiction. Before any settlement conference takes place, you should meet with your divorce attorney and develop a set of settlement goals and the strategies to be employed to achieve those goals. Remember, this is your divorce, not your lawyer’s. The divorce lawyer’s role is to give advice, not to make decisions. In the final analysis, you must live with the outcome and, therefore, you ultimately must decide if the case settles or proceeds to trial. Thus, before the settlement conference, you must have a candid discussion with your divorce attorney about the possible outcomes — good and bad — and the parameters and costs that can be expected should the case go to trial.
An experienced divorce lawyer will move to take control of the settlement conference from the outset. There are many effective ways to take control of the situation. For example, control comes from being the individual at the table who knows the case and its intricacies, and who knows the law the judge will apply and the manner in which the judge will apply it. If your divorce lawyer has earned the respect of the judge and the opposing counsel, based on his or her past work and expectations about the quality of his or her work, this, too, will shift control to your divorce lawyer. Control also may be gained from being the voice of reason at the settlement table, being a calming influence, and being respectful to opposing counsel and the opposing spouse. Control comes from maintaining a business-like demeanor, and treating the matter at hand in the same fashion as a business decision. An experienced divorce lawyer knows that screaming, using crude or vulgar language, slamming doors, making threats and other such histrionics will not result in the successful negotiation of a divorce settlement, and that control of negotiations does not ever come from being the loudest, most obnoxious bully in the room.
Sometimes, before your divorce lawyer can gain control over the settlement negotiations, your soon-to-be-ex-spouse needs an opportunity to vent his or her feelings of hurt, anger and frustration. Human emotions play a huge role in divorce litigation, and different individuals adjust, adapt and respond to the emotional trauma of a divorce in different ways. If your spouse is feeling particularly aggrieved, allowing him or her to clear the air may be necessary before fruitful negotiations can begin. Often, one can take control of a situation by saying nothing, and letting others have the opportunity to speak their minds. Similarly, if opposing counsel is determined to play the role of tough lawyer, it may be necessary to sit through some initial bluster before negotiations really can begin. Keep in mind that it is unlikely that either opposing counsel or your spouse would have accepted the invitation to a settlement conference simply to lob verbal grenades. That could have been achieved much cheaper via email.
Once the preliminaries are over, you and your divorce lawyer can begin negotiations (in line with the reasonable expectations you discussed before the conference and in a strategic, business-like manner). Consider the following strategy for taking and maintaining control:
Can we agree on. . . ?
Our position on that issue is. . .
Now let’s discuss contested issues.
Tell me your position; here’s ours.
Reach for a compromise.
Offer to concede, in exchange for concessions.
List the agreements, point by point, to confirm agreement.
Not every settlement conference is going to end successfully. Some will simply conclude with an agreement to disagree, and to take the case to the next stage of litigation. Many cases will take more than one settlement conference to achieve success. Starting with some mutual acknowledgement of some agreement, however, will get the ball rolling and usually enable you and your divorce lawyer to say, “We’ve made significant progress here. Let’s take some time to think about these few matters we’re stuck on.”
Likewise, if it appears that continuing negotiations are not going to be fruitful – for instance, if tempers are rising and the time between concessions is growing – your divorce lawyer might suggest a break so that everyone can regroup and consider the remaining contested issues. Your divorce lawyer might say, “We need time to consider your proposal, as it is not currently something we can agree upon. We need to consider whether we’re just better off taking the case to trial. We don’t want to do that, but right now we can’t accept your position. Let’s schedule another conference and talk next week.” A statement like this will keep the negotiations alive, but will close the session for the day. More importantly, it will let your spouse and his or her divorce lawyer know that you are open to settlement, but not shying away from trial, if necessary. This, perhaps, is the most effective way of getting the other side to blink: making them think that, even knowing the time and expense involved in a trial, you might just decide to roll the dice, rather than accept their proposal or compromise further. A credible threat of trial will give every divorce lawyer, regardless of the strength or weakness of the case, cause to seriously consider any reasonable settlement proposal.