NJ Family Legal Blog : New Jersey Divorce and Family Lawyer & Attorney : Fox Rothschild Law Firm : Domestic Violence, Prenuptial Agreements, Child Custody

Several months ago, I posted a blog entry entitled "All Cases Have a Life of Their Own"  To view that entry click here.  The premise was that while most cases settle, they usually will not settle until both parties are ready, emotionally and otherwise, to move on.  That may be the case even if a party's best case resolution is on the table from the outset.  If they are not ready to settle at that time, they will not.

In a more rare occasion, a party is never ready emotionally to settle and a case just has to get tried.  That is unfortunately the case in a matter that I have that is going to trial next week.  Because of the other party's mind set, my adversary has for many months told me that the case would be tried.  He did not tell me this as a threat or to get leverage - just as a fact.  In fact, a settlement proposal we made has been pending for about a year without a response.  In addition, no bona fide efforts were made by the other side to settle at either the Early Settlement Panel, mandatory economic mediation or the Intensive Settlement Conference.  During the party's recent deposition, he said that "it was too late" to settle, once my client hired an attorney. 

Obviously, this is no consolation to my client who has been eager to try to resolve this matter from the start.   Hopefully, the remedy will be a generous award of counsel fees at the end of the trial to compensate my client for having to endure the husband's conduct which has been nothing short of unreasonable, if not bad faith.

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Previously I blogged about the fact that cases have a life of their own and will only settle when both parties are ready.  As I was trying to settle a case today that is scheduled to start trial in Morris County next week, I was reminded of a related issue.

In this case, we have had a hard time getting the other side to negotiate.  They have taken a position that we don't think is reasonable nor supported by the facts or the law.  That said, we have made proposals to try to resolve the case.  In fact, at each time we have been required to negotiate (at the Early Settlement Panel, mandatory economic mediation (several sessions) and at an Intensive Settlement Conference), we have made proposals.  In some ways, it was against my normal practice to not bid against myself, but the client wanted to at least try to stir some movement. 

At each point, rather than provide a counter proposal, the other side has tried to wow us with, to put it nicely, "fuzzy math" in order to justify why they are right and we are wrong.  They have never, however, moved off of their proposal on support in any significant way. 

I finally had to tell the opposing counsel to just give me a number without the explanation or argument because I wasn't going to buy their theory, ever, and the theory didn't make a difference if the number was acceptable.

In fact, this is not unusual when trying to settle matters.  That is, sometimes the theories and explanations will bog things down.  The bottom line is that if  the parties agree on the number or a certain resolution of a non-financial issue, in many instances, it matters not at all how or why you got to that number.  In fact, the explanation may just start the argument again. 

Sometimes, it is more important to just give a number than explain how you got there.  If the number is fair and within the realm of reason, and the parties can live with it, it is sometimes better to be settled then win the debate which may only prove more costly.

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While statistically, 99% of all cases settle, some cases take longer than others to get there.  Moreover, some cases require the assistance of a third party to help one or both party or attorney get past whatever it is that is holding the case up from resolving itself.

I, for one, have been skeptical of mediation in a number settings.  The first is at the onset of a complex matter where one party is pushing for mediation and there hasn't even been the most basic exchange of information at that time, much less formal discovery.  I have even seen cases where the party with the documents will not provide them in advance of mediation and will only bring them to mediation and take them with him at the end.  The second setting that gives me cause for pause is when parties attend mediation without counsel and there is a great imbalance of power between the parties (consistent with the imbalance of power that permeated the parties' relationship).  In these instances, unless there is a strong mediator that will protect the disadvantaged spouse, I have often seen such mediations result in a "settlement", but one where the disadvantaged spouse got a "deal" that was neither fair nor reasonable, if not unconscionable.  The problem in these cases is that often, once there is an "agreement", the person that got the great deal refuses to concede anything.  Thus, a method meant to avoid litigation can often create litigation. 

However, in this day and age in New Jersey, the court mandates mediation at two junctures of the case (unless there is a domestic violence restraining order.)  The first is early on in the case when the parties go to custody and parenting time mediation conducted by court staff.  This is meant to ferret out the true custody dispute.  That said, I make sure that my client is prepared before they attend this mediation because it often results in a resolution of the issues and I want that resolution to be one that my client actually has considered in advance and is comfortable with.  As such, we often prepare a parenting plan, in advance, which deals with the regular parenting time, legal custody, holidays, vacations, etc.

The second mandatory mediation is economic mediation which takes place after an Early Settlement Panel.  Attorneys usually are required to attend with clients.  This is often the time when a case that is more than your run of the mill case will settle.  By this time, it is expected that most, if not all of your discovery will be done. Unlike the Early Settlement Panel where the panelists have a short time to consider the issues, the mediator can spend more time to flesh them out and more importantly, facilitate a dialogue and negotiation. 

In some cases, the impartial voice of the mediator helps one or both parties get past an issue that they are stuck on.  Put another way, when either the client's attorney has told the client time an again of a probable result, or if the attorney is presenting the strongest position regarding an issue as an advocate, the mediator, who has no axe to grind, may be just what is necessary to put the issue to bed.  In other cases that I have seen, sometimes one of the attorneys doesn't handle exclusively family law matters and/or is otherwise less confident.  In these cases, the mediator essentially can let the attorney know that the deal is fair.

I have been involved in cases where the parties were more than $20 million apart and seemed headed for a trial that would have lasted several months.  However, after 8 to 10 days of hard work at mediation, the case settled, saving both parties tens if not hundreds of thousands in legal and expert fees that would have been incurred at a trial.

The bottom line is that most people truly want to settle their cases in a fair way.  We always hear anecdotally that cases that settle come back to court far less often than cases that are tried.  We also hear that people that settle their cases are far more satisfied with the result than if they tried the case.  In a trial, the litigant gives up control of their life to a judge that doesn't know them and will only hear bits and pieces of their story - along with the hundreds of other cases they have.  Mediation with a skilled mediator, where the playing field is level, the parties both have all necessary information and the imbalance of power is kept in check, is excellent way to keep control of your life and resolve your matter in a fair and beneficial way.

Check back for future entries regarding arbitration and trial practice.  While most cases do settle, if litigation is required, we are skilled at handling matters that require a trial, as well.

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In a recent unreported Appellate Division decision, the Court decided that a trial court judge abused his discretion by sanctioning the defendant's attorney for failure to appear at an Early Settlement Panel, where his client, the other party and opposing counsel had appeared.  At first this may appear to be odd result but the facts of the case make it more clear why the result is just - and that a little courtesy by all involved could have prevented what turned into this debacle.

This case was pending in Middlesex County.  On the day in question, there had been extensive rainstorms and a portion of a major traffic artery in the New Brunswick area, was closed. Defendant's attorney was caught in the resulting traffic jam so at approximately 9:30 a.m. he called his office and had them contact the chambers of the presiding judge of the Family Part to advise of the delay. As counsel did not have plaintiff's counsel's cell phone number, and, believing the judge's staff would advise her of the delay, he did not call opposing counsel's office. When by 10 am, the traffic issues had not improved, defendant's counsel called the presiding judge's chambers directly and asked that the matter be rescheduled.  The judge's law clerk granted this request and counsel returned to his office.  No one, however, told plaintiff's counsel.

After 10:00 a.m., she called defendant's counsel's office and was told that he was running late. Shortly thereafter, she called again and was told that he had been released by the judge and was on his way back to his office. Plaintiff's counsel called a third time and actually spoke to defendant's counsel - requesting that he return to the Courthouse.  When he refused, she made a application to another judge (the presiding judge was out that day), for counsel fees.  

 The judge noted that he had spoken to the presiding judge's secretary "after the call," and knew counsel was stuck in traffic, however, he noted that the "only people that can grant an adjournment o[n] a matter that's set down for an ESP is either [the presiding judge], who's not here, his secretary . . . or me, the ESP judge." The judge determined defendant's counsel's excuse for his non-appearance was "inadequate," and he granted the application for counsel fees in the amount of $1100. 

The Appellate Division, however, held that the trial judge failed to properly follow the procedures governing a contempt citation, and that defendant's counsel's behavior was, under the circumstances, not contumacious or without just excuse.  The Order for fees was reversed.

The moral of this story is that all could have been avoided with a healthy dose of courtesy and communication all around.  Defendant's counsel should have called his adversary's office or had his staff do it - both to advise of the delay and then of the adjournment.  Moreover, if the traffic had abated by then, he could have returned to the Courthouse where everyone was waiting.  Plaintiff's counsel could have been more understanding of the problem caused by extreme weather conditions coupled with the fact that someone in the presiding judge's chambers had granted the adjournment.  Perhaps there could have been better communication by the Court staff that granted the adjournment so that the rest of the people waiting would not have waited as long. 

We should not lose sight that courtesy to our client's,  their spouses and opposing counsel - especially is unique circumstances, is required.  It would not be surprising if events of that day cost each party more than the $1,100 in dispute.  And it may have all be avoided with just a little more courtesy and communication. 

For a copy of the case click here.

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