I sit here stewing on this overcast Friday because the other side reneged on the settlement in two matters, after we believed we were all but resolved in both. Whether or not these were enforceable settlements is a topic for another blog. That said, one is particularly frustrating because the other side essentially undid a package proposed by them a few mediation sessions ago which been discussed at a few mediation sessions, only to come back with a new proposal that was accepted by my client.
The problem is that no one ever just says "my client changed his/her mind." This would be a fine answer especially in situations where we have laid the ground rule that there is no deal until it is signed of by everyone. Rather than truth, we get hit with lame, absurd, and/or intellectually dishonest explanations as to why there never was a deal in the first place, and/or why the back tracking (a nice way to say bad faith negotiations) was justified.
What are some of the "dog ate my homework" excuses we have heard.
- My client didn't really understand (Were you, the attorney not there?)"
- the mediation session was chaotic and ended abruptly (note - no denial that there was a deal)
- my client didn't believe that any agreements were reached that date (of course, the lawyer isn't saying that there were no agreements reached)
- "Oh, is that what we agreed to"
- My client never agreed to that
- We may be close on the big stuff (how is that when we accepted your offer on the "big stuff")
- My client was very emotional
- My client was hungry
- My client didn't take their medication or took too much medication
I am sure that my colleagues could add dozens more. That said, if a non-binding settlement is reached, wouldn't it be just better to tell the truth - i.e. my client changed her mind - then create anger and bad feelings spewing nonsense to cover for the acceptable truth? I'm just sayin ...
Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild's Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or firstname.lastname@example.org.