We have heard over and over that settlement ranks high in the public policy of this state and know from experience how the system is geared toward settlement. In particular, there is mandatory custody mediation, mandatory Early Settlement Panels (MESP), mandatory economic mediation, Blue Ribbon Settlement Panels, intensive settlement conferences (ISPs or ISCs depending on the county) and the like. With all of these “mandatory” events, you get the picture. Courts even have the power to send cases to MESP and mediation in post-judgment matters. In fact, it sometimes seems that you cannot get a “real” trial date, even when you want one or need one. I say that because often the first, or first several trial dates are not real trial dates, but dates wherein you come to court expected to try to settle.
And while you eventually will get there, are their times that you want to press for mediation, even before the “mandatory” appointed time? The answer is yes. Why, might you ask? There are times that you just know that if the parties get into mediation sooner than later, the matter can resolve and the parties can move on with their lives. There are three scenarios, at the least, where the strategic use of mediation can move the matter forward, if not toward moving it to settlement.
The first scenario is where there is no communication or worse yet, the wrong type of communication regarding the case. In some cases, people are just doing nothing, waiting for the ESP or some other event, for no particular reason. In other cases, there is an absurd amount of energy spent, or worse yet, unnecessarily wasteful motion practice on minor issues, if you can even call them issues. Communications back and forth because someone returned to their home to remove some of their personal property; random fights over a $100 bill that has to be paid when there are no other real financial issues; silly parenting skirmishes that are much ado about nothing, etc. There are cases that if you just got people in a room, or before a mediator, where they can focus on the real issues, an easy case can be put to bed and the parties can move on with their lives.
The next scenario is when you know that opposing counsel is just off the wall, and either does not know what they are doing, they don’t specialize in family law so they aren’t sure of what they are doing, and/or are just taking positions that do not relate to the facts in the case. In those cases, you just know that when you get before a respected and skilled mediator, who gently, or maybe not so gently, adjusts the expectations, the case can settle. Remeber, this may be the first time that the client has heard a non-biased, objective view of their position. We did this recently in a case and although the other attorney wanted to leave – it was his client who for the first time heard that his position had no basis in reality, started to get real and begged to continue the mediation.
The last scenario is the one where the lawyer may be reasonable, but her client is not. In these cases, the mediator and the unreasonable party’s lawyer, can work together to re-shape the client’s expectations. This doesn’t always work – sometimes, there is no reaching the unreasonable person. That said, the process can help reinforce the attorneys advice which could break the ice.
However, what you have to be careful of is that the mediator will get the lay of the land pretty early in the process and see that one party may be more reasonable than the other. Since it is natural to want to try to effectuate a settlement, maybe report back to the judge that you got the case settled and then get more referrals, that the mediator will try to work on the more malleable party. That is ok, to a point, as long as it is put into proper perspective, “yes you are paying a little more but this will end the case.” On the other hand, what you want to avoid is the mediator creating a false “settlement anxiety” (that I blogged about many times before) in the reasonable party. That is not fair. If one party is acting reasonably and the other is not, the reasonable party’s position should not be falsely diminished, simply to get that party to move when the other party wrongly won’t.
The takeaway from this is that the use of mediation can be a useful strategy to move a case forward. At the very least, you open the lines of communication that may have been closed or sidetracked, and/or find out whether it is the opposing party or their counsel, or both, who are being unreasonable.
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 is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or firstname.lastname@example.org.