NJ Family Legal Blog : New Jersey Divorce and Family Lawyer & Attorney : Fox Rothschild Law Firm : Alimony, Child Support, Child Custody, Prenuptial Agreements, Essex, Morris, Mercer, Atlantic

Yesterday, I blogged about the illusory "final offer", noting that most cases settle.  The reason for that is that there is a realm of reason, a range if you will, where cases with similar facts and circumstances, should resolve themselves based upon experience, statutes, case law, Guidelines, etc.  In most cases, absent wide valuation disparities, esoteric issues, bona fide custody disputes, including relocation, and/or really unique sets of facts and circumstances, the range is a relatively small one.  These are not personal injury cases where a carrier is offering $0 and the plaintiff is seeking millions. 

What do you do when you get a settlement proposal that is so out of left field that it borders on , or perhaps is, bad faith?  Do you ignore it?  Do you respond with an equally outlandish proposal in the other direction?  Or do you respond with a proposal in the realm of reason?

Maybe you don't really want to do that.  Why?  Because, as noted in my last post, you will be going to an Early Settlement Panel (ESP), mediation, and/or an Intensive Settlement Conference (ISC).  The risk of negotiating with a reasonable position vs. the other side's unreasonable position is that the impartial may suggest "splitting the difference."  Splitting the difference may be fair when both party's proposals are within the reasonable range.  It clearly is not fair when one party's proposal is outlandish.  Moreover, even if the unreasonable negotiator comes down substantially, perhaps even more than you come up (or vice versa), you will suffer the wrath of their righteous indignation because they "gave more." 

Also, I previously posted about a mediator saying that he was creating "settlement anxiety" to try and move parties to get the case settled.  While this may be fair if parties are either equally reasonable or equally unreasonable, is it fair to try to push the reasonable one when the other party is unreasonable?  I think not. 

In a case that I settled this year, the first proposal from the other side was clearly punitive and clearly bad faith.  We chose not to respond and I advised the adversary as such.  He begged us for a counter proposal.  We decided to make one that, while not bad faith, was extremely aggressive in the other direction.  What happened next?  We started negotiating within the realm of reason and the case got settled.

I am not saying that that strategy will work in every case but it worked in that one, as I suspected it might.  Negotiations can be complicated.  Great thought should be given as to the strategy to employ based upon who you are dealing with and how they are negotiating. In an advertisement in a recent  Super Lawyers publication, a firm stated that they were known for "winning" divorce cases.  That is funny since few are tried and seldom is there a clear "winner."  You don't want to let the other side "win" a negotiation because they started with an absurd position and you felt compelled to negotiate on their terms.

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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 esolotoff@foxrothschild.com .

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This is my final offer!!!  Don't you just love the ultimatum, the line in the sand, the threat of Armageddon if capitulation is not immediately at hand?  I sure do.  Is it because I love to go to trial?  Don't get me wrong, I enjoy trial but that is not the reason. 

Seldom does it mean that a reasonable counter proposal won't be considered it it doesn't materially alter the terms being discussed.  Usually it means that your are getting pretty close to a settlement so that the proclamation can alert you and your client that now may be the time to do a deal.  In a recent case that I just settled, almost comically, each side probably sent 5 "final offers." 

And why is a final offer seldom a final offer?  Because 99% of all cases settle.  Because the system is geared to promote settlement.  Because before you go to trial, you will go likely go to custody and parenting time mediation, an Early Settlement Panel (ESP), mandatory economic mediation (sometimes several sessions), and an Intensive Settlement Conference (ISC) with the judge, or many.  Often, your first trial date is not a real trial date, but rather another day to bring the parties (and perhaps experts too) in to try and cajole or finesse and strong arm a settlement.  Even on your real trial date, perhaps before and often during the breaks of a trial, the judge will encourage settlement and/or the circumstances of how the trial is going may encourage settlement. 

So keep giving us your "final offers."  Sometimes, our client will accept them.  Other times, we will make a counter offer and await your next final offer until one day, the case will be settled or tried to conclusion.

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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 esolotoff@foxrothschild.com.

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There are many cases that say that the settlement of litigation ranks high in the public policy of this state,  As such, there are many cases that say that an agreement can be enforced, even if it is not reduced to a writing, if the major terms have been agreed to.  As my client learned in Brawer v. Brawer, the unexpressed intention not to be bound is irrelevant.  There is no place in the law for second thoughts where the parties have expressed their agreement.  In fact, in a case called Bistricer, the judge said:

… the proposition that a case is not settled until the last “i” is dotted and the last “t” is crossed on a written settlement agreement carries the germ of much mischief. A party could, in bad faith, waste the time of the court and the other litigant in protracted settlement negotiations, and then, after a “framework” has been established, wiggle out of that framework by creating a flood of new issues and questions.

Just as you can't wiggle out of a settlement, similarly, you cannot appeal a settlement.  This issue reared its head in the case of Courboin v. Courboin, an unreported (non-precedential) opinion decided on February 21, 2013.  In this case, after two days of trial, the parties settled and put their settlement on the record. The husband testified that he agreed to be bound.  As part of that settlement, the home was to be sold.

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Several years ago, I posted a blog entitled "Some Times You Just Have to Try a Case."  In that post, I discussed that there are some times where a litigant simply refuses to settle making a trial inevitable.  Are there times, however, when a trial might be less costly, quicker and preferable to long, drawn out, and perhaps insufferable negotations.  I have dubbed these mind numbing, perhaps bad faith negotiations, where sometimes you take one step forward and two steps back and sometimes, no issue is ever resolved, and sometimes, you make an offer about alimony and the response is about equitable distribution - death by a thousand paper cuts.  Whether intentional or not, you wonder whether a trial would have just been bettter.

I ponder that after recently concluding a case that, while having one little twist, which we got past several months ago, then endured numerous mediation sessions, numerous Intensive Settlement Conferences at the Courthouse and even more than one scheduled uncontested hearing where even the final changes had final changes, plus new changes.  In fact, I have recently had several cases where it took an inordinate amount of mediation sessions to resolve simple cases.  In one reasonably simple case, the parties went to mediation 6 or 7 times, before attorneys attended and even then, it did not settle despite the outcome being obvious.  In another, after 9 mediation sessions (7 with lawyers present), the case remains unsettled though only small dollars in the big picture remain in dispute. 

In your garden variety case, the inordinately drawn out process only serves to either wear a party out and forces the righteous client to give up to either move on or stop the bleeding of legal fees.  Otherwise, they incur a large legal bill just to get to the place they should have been had the other side acted reasonably (presuming for the second that they have negotiated fairly and reasonably.)

While I understand the desire to avoid trial at all costs for all of the usual reasons - finality, having control of your own destiny as opposed to putting the decision in the hands of a stranger, etc.- if the process comes to a place where all things considered, you cannot do worse if you go to trial, maybe a party should consider pulling the plug on these expensive snails pace and/or bad faith drawn out negotiations,  Perhaps the threat, if it is a real threat and you actually start doing what is necessary to prepare for trial, will stop the nonsense and get the other side to end the case once and for all. 

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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 esolotoff@foxrothschild.com.

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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 ...

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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 esolotoff@foxrothschild.com. 

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Reading and considering Eric Solotoff’s blog from earlier this week regarding the benefits of settlement, it is also critical to know when to settle and, quite frankly, whether to settle at all. This especially applies to those current or former spouses who simply cannot afford to litigate against a financially superior former spouse. This situation is often referred to as litigating on an "uneven playing field."

Trying to some degree to place myself in your shoes, it can only be an extremely difficult decision whether to, once again, go up against the other party with the bottomless wallet, or just settle for what they want and get it over with. These decisions may not only have an impact on your own wallet, but also on your family's overall well being, especially if children are involved. Too often, the other party knows this to be the case, which is why they will continue to file or threaten to file motions in the hope that you will eventually "give in" under the pressure.

This blog should not be taken as a sign of encouragement to litigate a case, but rather as a cautionary note for what you, as a litigant, may be sacrificing with your decision. Ultimately, it is you who has to wake up in the morning and be comfortable with your decision, which is why having all information at your disposal is, perhaps, the most important part of the decision-making process. 

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When settling a case, the parties and their lawyers can be far more creative in settlement then a judge can be if the case is tried.  While family judges have wide discretion in their decision making, creativity is crafting the most beneficial result for both parties is rarely something they can do.  In fact, in many ways, they are constrained from the type of creativity that we see every day in divorce agreements. 

What if you are a high earner, but your income fluctuates greatly from year to year?  While a judge will likely have no choice but to determine your average income over 3 to 5 years and base support upon that as well as the rest of the statutory factors, you may want to agree on some kind of formula so that there is fairness year over year, i.e. you pay more in a better year and less in a down year. For example, if your average income is $2,500,000 but your income fluctuates between $1 million and $4 million per year.  You would really hate paying alimony in those years you only make $1 million.  If a judge decided this case using averages, you might be forced to pay your entire net income, or more, to you ex spouse in the down year.  Similarly, a judge could never say that support "automatically" is reduced or even reviewed if your income is less than $X in the future. 

This concept was reiterated again by the Appellate Division on October 29, 2012 in an unreported  (non-precedential) decision in the case of Means v. Snipes.  In this case, after a trial, the judge decided that in the event that defendant's annual income fell below $2 million, he would receive a reduction in alimony. This is the one thing that both parties agreed was in error - a rare agreement in a very contentious case.

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Having just experienced several months of "interesting", to say the least, negotiations on several matters, it got me thinking about creating a list of things to do if you really don't want to settle your case.  Hey, every body is entitled to their day in court if they want it. So what if there is nothing that can be gained from it.  So what if you can't win.  So what if forcing the matter to trial will create other legal issues.  So what if trial will cost tens of thousand of dollars.  Here is the list:

10.  Ignore your expert's advice.  What do they really know about the value of your business or how a judge will likely assess your total income/cash flow?  What does an accountant know about taxes, or more importantly, how the IRS may address the creative accounting practices that you or your business have employed?  What does the custody expert really know? 

9.  Ignore your lawyer's advice.  What do they know anyway?  If your lawyer is telling you that you should jump at the deal on the table because it looks like a huge win, disregard it.  If they tell you that you have real exposure on certain issues or may be forced to pay your spouses legal fees, roll the dice. If your attorney tells you that they are willing to try your case, but that you should consider settlement because the cost of the settlement will be less than the cost of the trial plus the absolute minimum you have to pay, don't believe it.  And what does your lawyer know about the law or the judge anyway?

8.  Ignore the facts of your case.  Trust your ability to spin the facts in a way that doesn't make sense.  Plus, how can they prove if you're lying.

7.   Ignore what the neutrals are saying.  What do the Early Settlement Panelists know?  What does the mediator know?  When the judge has a settlement conference and gives directions, what does she/he know?  Assume that the people that have no "horse in the race" are aligned with your spouse or their attorney, have been bought off, or are just plain ignorant.  Really, it has nothing to do with the facts of your case or the reasonableness of your position.

6.  Ignore the law.  It doesn't apply to you anyway.

5.  Continue to misrepresent things, even when the other side has documents to disprove virtually everything you are saying.  Assume that you will be deemed more credible than the documents.

4.   Believe that the imbalance of power that existed during the marriage will allow you to bully your spouse into an unfair settlement.  Assume that your spouse's attorney wont try protect her/him.  All lawyers roll over on their clients, right?

3.   Take the position that you would rather pay your lawyer than your spouse. Ignore that fact that this tactic usually ends with your doing both, and maybe your spouse's lawyer too.

2.  Pretend as if your spouse never spent a second with the kids in the past and has no right to do so in the future.  Make false allegations of neglect or abuse.  Ignore the social science research that says that it is typically in the children's best interests to spend as much time as possible with each parent.  What do the experts know about your kids anyway?  And while you are at it, bad mouth your spouse to or in front of the kids. Better yet, alienate them.  Then fight attempts to fix the relationship.

1.   Take totally unreasonable positions implementing any or all of above and on top of that, negotiate backwards.  Ignore the maxim "Pigs get fat, hogs get slaughtered."  Put deals on the table and then reduce what you are offering.  Negotiate in bad faith.  Negotiate backwards.  Don't worry that this conduct may set your case back.

The above is clearly facetious and tongue in cheek. I do not recommend this behavior.  It is usually self destructive and short sighted.  But, believe it or not, these things happen all of the time.  While I am not saying that no case should ever be tried, because sometimes trials are necessary, if you want to ensure a costly trial that may not go well for you, try the things on this list.  And if it is your day in court that you want, be careful you wish for.

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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 esolotoff@foxrothschild.com.

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Last week, Larry Cutler posted a piece on this blog entitled "Are Mediation Proceedings Really Sacred and Secret?"  The inspiration for this post was a recent published Appellate Division case Willingboro Mall, Ltd. V. 240/242 Franklin Avenue, L.L.C.., a case in which a mediator actually filed a certification and testified.  That, however, is the exception but not the rule. 

Often enough, parties go through mediation and believe that they have reached agreement.  It happens in divorce cases, and as evidenced in Willingboro Mall, it happens in other litigations.  Can the mediator testify that (1) there was a settlement and (2) what the terms are?  R. 1:40-4(c) includes a  restriction that "[no] mediator may participate in any subsequent hearing of the mediated matter or appear as a witness . . . for any person in the same or related matter.." The reported case of Lehr v. Afflito reiterates that the involvement of the mediator is improper absent a valid waiver by both parties.

Should this be the case, however?  If the ultimate issue as to whether or not a matter was settled is in dispute, who better than the mediator to answer that limited question?  If the parties agree ta ht the matter was settled but disagree on what the terms were, who better to answer that question too?  Parenthetically, if you go on the New Jersey Judiciary Web Site, there is a form for use by a mediator which is to be submitted to the Court after mediation called the Mediation Case Information Form.  The form requires the mediator to advise the matter is fully settled, partially settled or not settled.  Seemingly, this form would not be evidential under Lehr.

Since the Court places such high importance on the settlement of a matter on a public policy basis, would requiring mediators to report these things, if there was a dispute, really up end the confidentiality of the process.  Doesn't settlement signal the end of the process? Interestingly, in Willingboro Mall, Judge Fall (a former Family Part Judge), noted the following in response to the plaintiff's position that for a matter to be settled during mediation, there must be a contemporaneous writing on the spot:

Plaintiff's position also ignores the reason for referring a matter to mediation. The process is utilized to afford the parties an opportunity to present their position before an experienced professional with the goal of resolving some or all of the differences between the parties. See State v. Williams, 184 N.J. 432, 441 (2005). In contrast to arbitration, the mediation process is non-binding only in the sense that the process is not designed or intended to impose a result on any party. Indeed, such a result is the antithesis of the mediation process. Mediation is also not intended or designed as a meaningless and impotent detour on the way to judgment. The very purpose of the process is to resolve the dispute. (Emphasis added).

People can always make one of the ground rules of mediation or a settlement conference that there is no settlement until it is reduced to a writing signed by all parties.  That said, if they don't do that and then settle at mediation, should a party be allowed to renege, or even claim that there was no deal without the one person, without a vested interest in the litigation, telling the Court about the settlement?  As ADR is becoming more prevalent, my guess is that we have not seen the last of this issue.

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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 esolotoff@foxrothschild.com.

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I had a case recently where we had a conference call with the judge during which time, a discrete issue holding up resolution of a larger issue was discussed.  The judge made a suggestion which I took down verbatim and drafted language which I thought would resolve the issue. The problem, the judge's suggestion was contrary to what the other litigant wanted.  So what appeared to happen is that his lawyer either did not accurately report what was said or "spun" it in a way to not accurately reflect what the judge said.

In another matter, resolution of financial issues were discussed in chambers with the judge.  As I was reporting to my client what the judge said, we heard the other lawyer, who was speaking way to loud given as close as he was, spinning a entirely different client because the truth was not something the client would have wanted to hear.

Aside from running up counsel fees, seeking clarification from the judge (or hoping that she/he will change her/his mind), what purpose does this serve?  Is saving face with a client better than being honest, if not brutally honest, about their prospects?

I have heard many clients say that they went to initial consultations with attorneys who promised the world to get the case, only to then fail to deliver.  Of course they failed to deliver if they were promising that which is contrary to the law, overreaching or unreasonable under the circumstances. 

While clients have a right to seek what they want, they need to hear what they can realistically expect so that they are not surprised if they don't get the result that they have hoped for.  There are parties that want to push the envelope, either because an issue is novel, or because they really want something but are willing to give up something else, and sometimes for un-pure reasons.  However, if they are fully informed of their chances, or what the judge is saying, or both, they will not be able to say,"you never told me." Moreover, it is better for a party to learn the truth as early as possible so that they can decide whether they really want to fight a losing fight or preserve their financial and emotional resources.

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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 esolotoff@foxrothschild.com.

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I have to admit it.  I have not always been a fan of the 4-way conference.  Often, they have been the bastion of bad behavior, posturing and often just not as productive as mediation with attorneys present or negotiations back and forth, in writing, between counsel.  That said, I am beginning to come around to seeing the usefulness of earlier meetings and earlier mediations, where appropriate, to try to resolve as much as possible, as early as possible.  In fact, I was recently reminded of the importance of the willingness to meet when an opposing counsel was fired, seemingly because that attorney refused to meet or even pick up a phone to discuss issues.

The meetings do not have to be simply for settlement.  More often than not, couples continue to reside in the same household while the divorce case is pending.  Often in these cases, at best, people are on edge and at worst, it is the War of the Roses.  In these situations, an early meeting can be helpful to address conduct and civility within the home and perhaps interim exclusive parenting time between each party and the child(ren).  The alternative could be a domestic violence situation (real or bogus) which could possibly have been avoided.  Temporary support issues can be discussed.  The use, sale and/or restraints on assets can be addressed.  A source of funds for payment of counsel or expert fees can be discussed.  There really is no limit to what can be addressed.

Since custody and parenting time are issues that the courts want to have resolved sooner than later, because custody evaluations take a long time and are expensive, an early meeting can root out whether there are bona fide issues, or whether a settlement on these issues can be reached. 

Other times, these meetings are a good opportunity to allow one or both party with something "on their chest" to have the cathartic experience of getting something off their chest.  In some cases, this allows the issues in the case to be addressed now that this is behind the parties.

In other cases, the entire case can be settled or at least a framework for settlement can be reached, subject to the exchange of certain documents so that each side can be comfortable that they know everything that there is to know.  Even if you cannot settle, you get to learn about the other side's positions, issues, perhaps evidence, etc. 

While we are used to and adept at litigation and while some cases require some (if not a lot of litigation), this is not the case in every divorce.  Even in high conflict matters, meetings and opening a real dialog can help to keep the lid on things so that the attention can be turned to the real issues.  Figuring when to meet is the trick.  Refusing to meet, at all, is usually a mistake.  Usually something good can come of it.

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Last year, I blogged on this topic after I was at a mediation where the mediator, when telling us his assessment of my client's case, said that he was creating "settlement anxiety." At the time, I had never heard of this term but what I believed was meant was that the mediator wanted the client to have "anxiety" about his/her position in order to be more likely to make compromises and settle. If the goal is getting a settlement at all costs, I guess it makes sense - but is it fair, especially where one party is acting reasonably, and the other is not.  As this has come up in two recent mediations, I thought it made sense to reprise this post.

In most cases, there is a "realm of reasonableness" or a range in which any settlement would be essentially fair. Perhaps, a fair alimony figure could be between $100,000 per year and $125,000 per year. A fair resolution could be either of those numbers and anything in the middle. In most cases, people, with all relevant facts and acting reasonably, negotiate within the realm of reasonableness, but at either end depending on which side of the case they are on. In that case, a mediator trying to create "settlement anxiety" will try to express the flaws in either case to get the parties to meet somewhere in the middle to achieve a result that is fair.

But what about cases where one party is negotiating within the realm of reasonableness and the other is not? Put another way, what about cases where one party has the law and the facts pretty much on their side as to most issues and the other side is taking a position that is absurd? In this case, should the mediator be trying to create similar "settlement anxiety" in both parties? Add another level - what if the mediator knows that the unreasonable party will never settle the matter in a reasonable fashion? Should the mediator pressure/create the same amount of "anxiety" in the more reasonable party just to achieve a settlement even though everyone knows it is unfair? Should the result be settlement at all costs? Does this type of pressure on the righteous party just to get a deal done artificially undermine a party's relationship with her counsel and experts, if just for settlement purposes, they are told that their case is weak when it is not?

In my humble opinion, pointing out the legitimate limitations in someones case in order to help create a settlement is fair and appropriate. On the other hand, creating artificial anxiety just to get a settlement all all costs because one party is acting unreasonably or negotiating in bad faith is not. The system should be fair and equitable and the parties are entitled to justice. It is neither fair nor justice to lessen a party's confidence in their case, artificially, just because the other side will never settle in a fair and reasonable manner.

That does not mean a party cannot give more ore receive less just to get a case done and move on with their life. That is their choice. In fact, in recent cases, the mediators have used the anticipated costs of litigation as the pressure point on the party with the more reasonable position. Perhaps the better tactic would be to tell the unreasonable person of their exposure to pay the reasonable party's legal fees.

That said, the reasonable litigant should not be manipulated just because the other side refuses to be reasonable. And as I have blogged before, sometimes you just have to try a case.

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A recent case in which one party sought to enforce a purported settlement demonstrates the difficulties that arise when there is no signed agreement. In the unreported ( non-precedential) case of Galdo v. Hagarty, the parties were both represented by counsel during a dispute about the payment of child support and college expenses for one of their children. The father had filed an appeal of an order which required him to pay a percentage of college expenses and the mother filed an application for enforcement of the order. Thereafter, the parties agreed to explore a settlement and proceeded to negotiate through their counsel. Over a course of months the attorneys exchanged correspondence as well as emails. The mother received copies of many of the communications. 

Subsequently, the mother’s attorney faxed to the father’s attorney a proposed settlement. Father’s attorney then emailed a revised agreement  the next day. Twelve minutes later, mother’s attorney sent an email agreeing to the proposal and asking that Father’s attorney confirm that there was a settlement. Approximately an hour later, Father’s attorney sent a confirming email.    Father then took no further action on the appeal and it was later dismissed. Father then made an application to terminate child support for one of the children, which was not opposed by the mother.

Several months later,  the mother made an application to vacate the order terminating the child support, and enforcing the college expenses order which was the subject of the earlier appeal and settlement. She argued that there had been no settlement agreement that was reached. The father replied that there was in fact a settlement which was evidenced by the communications between the lawyers as well as the conduct of the parties after those communications. The father made a cross application for enforcement of the settlement agreement. The trial judge denied the father’s application for enforcement of a settlement and enforced the earlier order which required the father to pay a percentage of the college expenses.

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Recently, I was at a mediation where the mediator, when telling us his assessment of my client's case, said that he was creating "settlement anxiety."  I had never heard this term but what I believe was meant was that the mediator wanted the client to have "anxiety" about his/her position in order to be more likely to make compromises and settle.  If the goal is getting a settlement at all costs, I guess it makes sense - but is it fair?

In most cases, there is a "realm of reasonableness" or a range in which any settlement would be essentially fair.   Perhaps, a fair alimony figure could be between $100,000 per year and $125,000 per year.  A fair resolution could be either of those numbers and anything in the middle.  In most cases, people, with all relevant facts and acting reasonably, negotiate within the realm of reasonableness, but at either end depending on which side of the case they are on.  In that case, a mediator trying to create "settlement anxiety" will try to express the flaws in either case to get the parties to meet somewhere in the middle to achieve a result that is fair.

But what about cases where one party is negotiating within the realm of reasonableness and the other is not?  Put another way, what about cases where one party has the law and the facts pretty much on their side as to most issues and the other side is taking a position that is absurd?  In this case, should the mediator be trying to create similar "settlement anxiety" in both parties?  Add another level - what if the mediator knows that the unreasonable party will never settle the matter in a reasonable fashion?  Should the mediator pressure/create the same amount of "anxiety" in the more reasonable party just to achieve a settlement even though everyone knows it is unfair?  Should the result be settlement at all costs?  Does this type of pressure on the righteous party just to get a deal done artificially undermine a party's relationship with her counsel and experts, if just for settlement purposes, they are told that their case is weak when it is not? 

In my humble opinion, pointing out the legitimate limitations in someones case in order to help create a settlement is fair and appropriate.  On the other hand, creating artificial anxiety just to get a settlement all all costs because one party is acting unreasonably or negotiating in bad faith is not.  The system should be fair and equitable and the parties are entitled to justice.  It is neither fair nor justice to lessen a party's confidence in their case, artificially, just because the other side will never settle in a fair and reasonable manner.  That does not mean a party cannot give more ore receive less just to get a case done and move on with their life.  That is their choice.  On the other hand, they should not be manipulated just because the other side refuses to be reasonable.  And as I have said before, sometimes you just have to try a case.

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The online edition of today's New York Post reported that Tiger Woods and his wife Elin have resolved the issue of custody.

The details were not really set forth in the story nor are they really important.  Assuming all that has been reported on is true (and quite frankly if even if only some of it were true), if there is ever a spouse that had a right to be really mad it is Elin Nordegren.  Yet even these people were seemingly able to put aside the anger, lack of trust, resentment, etc. that is likely to exist to do what is best for their children.  From all accounts, it does not appear that the children were used as pawns. 

So if this story is try, these people should be commended and serve as an example to others (at least as to this issue and maybe golf) on how to put aside the emotional issues surrounding a breakup and potential divorce and put the children first. 

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A question that sometimes arises is whether an attorney can agree to a settlement on behalf of their client.  In an unreported (non-precedential) Appellate Division opinion released on April 13, 2010  in the case of Sweeney v. Sweeney, the court answered that question with a resounding maybe.

In this case, the wife alleged that on the night before trial, the parties' attorneys had "intense" settlement negotiations that lead to a resolution of all issues except for a section of the agreement entitled "General Mutual Releases."  On the following day, the husband appeared without his lawyer and disputed that there was a settlement.  The divorce was put through on that day but not the settlement.  Rather, the wife filed a motion for enforcement of the agreement reached between counsel.  Despite the fact that there were conflicting certifications, her motion was granted. 

The Appellate Division reversed the matter for a plenary hearing to determine whether the husband actually vested his attorney with the authority to bind him to a settlement.  Citing the general from the reported decision of Amatuzzo v. Kozmiuk, governing the scope of an attorney's authority to bind his or
her client to a settlement agreement, the Appellate Division noted:

The general rule is that unless an attorney is specifically authorized by the client to settle a case, the consent of the client is necessary. Negotiations of an attorney are not binding on the client unless the client has expressly authorized the settlement or the client's voluntary act has placed the attorney in a situation wherein a person of ordinary prudence would be justified in presuming that the attorney had authority to enter into a settlement, not just negotiations, on behalf of the client.  Thus, in private litigation, where the client by words or conduct communicated to the adverse attorney, engenders a reasonable
belief that the attorney possesses authority to conclude a settlement, the settlement may be enforced. However, the attorney's words or acts alone are insufficient to cloak the attorney with apparent authority.

So just because you think your case is settled does not mean it is really settled. 

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Mark Ashton, a partner in our Exton, Pennsylvania office, and a contributor the firm's Pennsylvania Family Law blog, wrote an excellent post on that blog entitled "A Divorce Negotiation Primer".

There are several points I would like to highlight:

• negotiations are confidential and cannot be introduced in court, except for very limited circumstances, but not as to the ultimate issue that is the subject of the negotiations.
• negotiation is intended to narrow issues
• at the time of trial, no one is bound by the positions taken during negotiations
• a party who negotiates backwards (for example making a demand, then increasing the demand), risks losing credibility in the negotiations and also causes their attorney to lose credibility.
• Put all issues on the table as early as possible so as not to spring new issues when settlement appears near and/or give a party false hope of settlement when the parties are not really all that close.

As usual, Mark's advice is good advice. 

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Almost two years ago, in fact, one of the first blog posts even on this blog, I authored a post entitled "All Cases Have a Life of their Own." I just finished a case this week that gave me reason to think about this post again. 

In this case, one party just didn't want to get a divorce.  It did not make a difference that the other spouse made clear in no uncertain terms that the divorce was going to happen.  In fact, because the spouse asked the other to reconcile every single day, knowing that it would upset the other spouse, that spouse heard every day that the marriage was over.  Even the children's therapist advised that that spouse should move out given the impact of that spouse's continued presence on the children, etc.  Nothing sunk in.  Eventually, the finality of the trial date, in fact on the trial date, did the matter finally settle, but not without several last ditch attempts not to proceed with the divorce.  The real shame is that substantial fees had to be incurred to prepare for trial - an unavoidable problem because one spouse held out hope for reconciliation until the bitter end.

I have another matter, where a spouse is refusing to make settlement proposal but is demanding a settlement conference.  It seems clear that the desire is to get the other spouse in a room to bully that spouse into a settlement or otherwise because there is the expectation that the other spouse will capitulate just as always occur ed during the marriage.

Some spouses refuses to provide discovery or comply with others, hoping to wear the other spouse down.

The bottom line is that hopefully the put upon spouse will stay strong and not fall prey to the other parties unreasonable if not bad faith conduct.  More importantly, hopeful the Court's will protect that party with a fair and generous award of counsel fees.

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I have a matter now that will likely go to trial in the early part of the new year.  It appears inevitable. 

Sometimes there are just those cases where a client is put in the impossible position of having to make a "Hobson's choice" accepting a patently unfair or otherwise unpalatable settlement or taking their chances at trial.  I am not talking about accepting a deal that is on the low end of the "realm of reason" or agreeing to a little more or a little less in parenting time.  Rather, in order to get the case over with and "stop the bleeding", they have faced with the proposition of having to take less than is reasonable or agree to more/less parenting time then is fair, appropriate and/or in the best interests of the children. 

One can only hope that if the choice is trial, that the judge will see that the other side is simply not reasonable.  In that case, the hope is that the trial judge will make a generous award of counsel fees to make the oppressed party whole, or close to it, for having deal with unreasonable positions, etc.  I had a trial last year where the husband refused to negotiate, at ll.  He sought alimony, without basis, and made us try every single issue, including the exemption of clearly premarital property, the exemption of clearly post complaint property, even the exemption of the engagement ring.  In that case, even though my client earned far more than her husband, she was awarded a generous counsel fees. 

Again, she had no choice but to try the case.  Unfortunately, that appears to be the case for my current client if the choice is made by the client to fight for what she is entitled to.

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Today I came across a blog entry by a divorce mediator which was nothing short of an attack on "best lawyers."  It appeared as though the ills of the divorce world were placed at the feet of the best divorce lawyers. Lawyers were castigated for such sins as discovery (obtaining financial documents) and seeking court assistance when you want temporary support or time with the children. He said that any lawyer can get the same result and that hiring a good lawyer sets the client up for a racket that is in the lawyer's best interests, but not the client's.

Unfortunately, this is not the first time that I have seen attacks on lawyers from the mediation community.  There appears to be a turf war.  Either you are mediation friendly, or you are not.    Rather than recognizing that some cases are more amenable to mediation than others, the followers would rather attack the "non believers."  

While I agree that most cases will settle, many cases take a fair amount of discovery and litigation to get there. To believe otherwise is simply naive. 

Further, while mediation is not for everyone, it is a useful tool in many cases, Then again, just as not all attorneys are alike, neither are all mediators.  In fact, I suspect that the author of the blog that I read would agree that not every mediator can get the same result - though he says that any lawyer can. 

In a prior blog from May 2009, I wondered whether the mediator's goal was a fair settlement or just a settlement.  To see another blog post on mediation that I authored, click here.  Are parties, often the woman being protected from the imbalance of power that permeated the marriage?  Are people being told of their rights when they appear at mediation without lawyers?  What efforts are made to ensure full and accurate disclosure?  Are the appropriate appraisals being done at all, and when done, are they being challenged and scrutinized to make sure that they are fair and accurate? 

There is no doubt that mediation and other methods of alternate dispute resolution can be a good thing. That said, I have often seen 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.  Many of these deals came from the "best mediators." 

That said, rather than attacking lawyers, mediators should recognize that there is a place for the best attorneys and the best mediators.  I posit that the best and most fair mediated settlements will result from the attorneys and mediators working together rather than attacking each other.  I am sure that we can all agree that a fully informed settlement, where both parties interests are fully protected, is optimum. 

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Previously I blogged on the issue of mediation and my skepticism of the process under certain circumstances.  This week there was a spirited discussion regarding the issue of mediation on the New Jersey State Bar Association Family Law Section listserve.  As a result, I thought it would be wise to highlight some of the issues again.

To frame the issue, the bigger debate surrounded the practice where a couple goes directly to a divorce mediator or some other trained mediator, without attorneys.  Some of the things that raised concern were as follows:

1. Some mediators are concerned not whether the mediation is fair, but rather, simply that the parties reached a settlement
2. Number 1 would be less troubling, except that many mediators are not telling the party receiving an unfair deal that it is unfair
3. Rather, apparently, for many mediator's, the phrase, "I think you should discuss this issue with a lawyer" is code for the resolution of this issue or this case is unfair.  However, people go to mediators to avoid lawyers and/or there is an undercurrent among mediators that divorce lawyers really are not looking out for the parties' interests.  Moreover, some parties think that if a mediator is not putting a stop to the mediation when something is unfair, that it must be fair.

There was also a concern that the imbalance of power in the marriage that naturally is creeping into the mediation is being ignored.  A perfect example is in a case where alimony, perhaps permanent alimony is a no brainer, yet the wife is willing to waive it in mediation.  Is anyone asking why?  Did the husband vow to never pay alimony?  Was there a threat to "go after custody" if a spouse sought alimony?  Did one spouse say "I spoke to a lawyer who said you weren't entitled to alimony" as a means to deter the other spouse from seeking it?  Was the other spouse given access to money to consult their own attorney?  I once represented a woman in a post-judgment matter whose husband would not give her money for the attorneys she wanted to see, only for mediation and then an attorney he hand selected for her to draft the Agreement.  It was not shocking that the "mediated agreement" included a waiver of alimony and the child going to school where the husband lives, when the child was of school age, despite the fact that the wife was the primary caregiver. 

I have also seen many 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 better practice, and the better mediators require, parties to have attorneys involved from the start of the mediation so that both parties are fully informed about the law and the process and so that any imbalance of power can be rectified with an attorney protecting the weaker party.

There is no doubt that mediation and other methods of alternate dispute resolution can be a good thing.  That said, I have often seen 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.

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The end of the Court year in  New Jersey in June 30th.  With that will come pressure, perhaps unnatural pressure, but pressure nontheless to resolve cases. 

While the fact that there are judicial shortages in many counties may provide relief, I suspect that it will do little to quell this rite of Spring.

As the legal system is very statistically driven, a court's performance is often measured in how many cases they clear, and more particularly, whether there is backlog (i.e. is the case too old for the case type that it is).  My undertanding is that a divorce case in in back log when it is over 1 year old. 

One tool that Court's use to clear more cases this time of year is to hold "blitz weeks."  During a blitz week, the oldest cases in a county are scheduled for trial and all of the family part judges clear their calendars to allegedly try cases during these weeks.  Whether or not cases actually get tried during blitz week is another story.  However, the threat of trial, along with the court's active assistance in trying to settle cases often clears many cases from the docket.

Also, in the cases that are naturally scheduled for trial during this time of year, adjournments become more difficult.  Regularly, multiple trials are scheduled for a judge for the same day.  The reason for this is that most cases settle or get adjourned so if only one case were scheduled, a judge could have open court time.  Often you will learn where you are on the list in terms of which is the oldest case and can get a sense as to whether the trial date is a real one.  In fact, usually the first and second trial date are not "real" dates, but rather dates when a court will try to get you to settle. 

That said, at this time of year, if you want to try to adjourn these dates, it becomes more difficult, with the hope that you will settle.  There is an old joke that goes, what is the easiest way to get an adjournment, tell the court you are ready for trial.  In reality, it works in the reverse.  That is, when you seek an adjourment of a trial date, courts often deny this expecting that it will help force a settlement. 

In my practice, if I appear for a trial date, I am prepared for trial.  I learned early on that the best way to be prepared to settle a case it to be prepared to try a case.  That way you are negotiating from a position of strength and very often, the other side really isn't prepared for trial  - making favorable settlement terms more likely.

In any event, if your case is getting close to a year old, expect pressure from the Court to get it done before June 30th.

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Imagine that you and your spouse recently finalized your divorce.  There were children born of the marriage who go to summer camp, participate in extracurricular activities, etc.  The question arises, which parent pays for these activities?  How about if you and your ex-spouse entered into a Property Settlement Agreement that specifically addresses the issue of payment, but you are unaware that the kids have already been enrolled in camp or activities and now you are just stuck with a bill to pay.  Are you still obligated to pay if you had no notice before the children were signed up and the expenses incurred?

These issues formed the basis of a new and interesting unreported opinion from the Appellate Division entitled Zenn v. Zenn, found here.  In the case, the father expressed a specific concern to the trial court that he wanted to have input into expenses incurred on behalf of the parties' child before being compelled to contribute payment.  Specifically at issue was the child's attendance at summer camp and enrollment in extracurricular activities (ultimately, violin lessons).  Heeding the father's concern, the Court directed that both parties would be consulted prior to any expenses being incurred on behalf of the child.  Language to that effect regarding camp and extracurricular activities was thereafter drafted into the parties' Property Settlement Agreement.  Notably, the father had agreed to pay for summer camp in 2004, but that there would be no such obligation unless the parties discussed future summer camp attendance. 

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I was supposed to start a trial yesterday,but, as often happens, with the judge's assistance, settlement negotiations began.  In fact, in reality, the case probably settled about 3 times yesterday.  However, each time we tried to wrap it up, the wife changed the terms, seeking more and more.  My client, who believed that that he would probably do better at trial, made a business decision to agree to the changes, in consideration for the costs of trial, risks of loss, etc.  That was his call as we were ready  to start the trial and were thoroughly prepared.

On the other hand, on top of changing her terms over and over again, the wife became abusive to her attorney who was trying to counsel her that the terms of the proposed deal(s) were probably far better than she would do at trial.  On top of that, she had major exposure to pay the husband's legal fees based on her conduct during the pendency of the matter (multiple violation of court orders and discovery abuses). 

That gets me to the point of this post.  Opposing counsel was in an impossible position.  He knew that the deal was too good for his client but could not force her to settle.  She is essentially forcing or demanding a trial, which counsel believes is not in her best interests.  His problem became compounded when she became abusive.

At the end of the day, the decision to settle is hers.  The refusal to settle may cost her tens of thousands of dollars.  The attorney fulfilled his obligation and told her.  It may ultimately be an expensive lesson learned.

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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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I have eagerly awaited the news accounts each day of the ongoing saga of the former first family of the State of New Jersey. 

While by all accounts, there is some exceptional lawyering going on, one cannot help to think that this is a case that should have been settled or that one or more of the parties is using the trial to settle personal vendettas. 

Thankfully for the parties' child, they settled custody and parenting issues.  However, as the judge admonished at points in the case, their daughter is going to be able to read all about her parents' divorce by just typing hers and their names into Google.  And for what?

 While their marital lifestyle was perhaps unusual from the common folk, in both financial and other ways, at the end of the day, this was a short marriage. The testimony from both as reported suggests that there was no savings and few assets.  The disputes as to alimony seem absurd because even if there was a viable claim, how much could it have been for.  The legal and experts fees had to have exceeded the claim. 

Again, I don't know all of the facts and only know what I read.  However, I always tell my clients that you don't want to spend $10 in legal fees to get $5 back.  I wonder at the end of the day whether the battling McGreeveys will have done just that.  If so, that is good for no one - even the lawyers.  Moreover, I hope that the trial was not a vehicle for either to get the last of their 15 minutes of fame while at the same time, preventing parties with real issues from getting their day in court.

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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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Inevitably, at every consultation I have, a prospective client asks me two questions, near and dear to them, which seem like easy questions - or so they thought.  The questions are (1) how long with this take and (2) how much will it cost.

I am certain that the answer, "it depends" is seldom satisfying.  In fact, several years ago, the Court instituted what is called Best Practices in family cases, partially in response to these two issues. 

As to the first question, the easy answer is that pursuant to Best Practices, the Court wants each case resolved within 365 days.  That, however, is not the end of the story.  Many factors go in to how long a case with take.  In some cases, people actually settle before a Complaint for Divorce is even filed and the parties can be divorced in a few weeks.  However, if a trial is actually required, 365 days is unlikely, especially in counties that lack judicial resources. 

In other cases, a party can make their best offer, they can even offer the other side's best case scenario on day one, and the case wont settle for weeks or months.  Why is that.?  Because all cases have a life of their own.  While it is easy for the lawyer to tell our clients to treat the financial issues as a business decision, the reality is that client's often find that to be easier said than done.  Rather, because this is a dissolution of a marriage for some, the breaking apart of a family for others, the death of hopes and dreams for yet others, or worse, it is difficult to remove the emotion from the process.  Why doesn't someone take a great deal on day one - they are often just not ready emotionally to move on.  While the system creates deadlines and there are legitimate means that one can use to try to move the matter forward, sometimes, you just have to wait a little for the emotions to subside.

In other cases, you may not settle quickly because you just don't have enough information.  In those cases, you may not know whether it is a great deal or not.  Some cases will settle quicker than others if both parties act reasonably, try to put aside (if not forget) the emotions, treat each other with respect, and more importantly, want to settle (i.e. be willing to make compromises).Of course, the statistics show that 99% of the cases settle.  Moreover, it is a rare day when a client doesn't say to me that they want to settle amicably.  More often than not, at least at first, amicably is measured on their terms only, without regard at that time for the concept of what might be fair and equitable to the other party   An often heard axiom is that you know a settlement is a fair one if both people walk away a little unhappy. 

Other factors that can delay a case is a party's refusal to cooperate with discovery or Court Orders.  Sometime, opposing counsel is a factor in delaying the case, either because he or she is not responsive, or perhaps for some other improper motive.

For the same reason that cases can take longer than others, they can also cost more than others.  I have been involved in cases with parties having substantial income(s) and assets which have settled quickly and inexpensively.  How does that happen - the parties acted in good faith and were motivated to settle.  I have been involved in other cases where the parties incomes were modest, yet despite all possible efforts to convey reasonableness, they insisted on behaving badly and/or litigating such that the legal fees were quite large. 

The bottom line is that the length of the case and cost of the case are often dependent upon the conduct, emotions and reasonableness of the parties. 

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