In one of the earliest posts I did on this blog going back ten years or more, I posited that you can only really settle when the time is right and when both parties are ready. In fact, I felt then as I feel now, that you can make your best offer, if not an offer that is the other side’s best offer, on day one, and if the other side isn’t ready to settle, the case wont settle. Worse yet, in those cases, the party rejecting the settlement offer then believes that the offer is just the other side’s starting position – rather than perhaps an overly generous offer meant to get a case over quickly to avoid both the fees and emotional trauma that can be endured during a divorce case. As a noted then, some times a litigant is just not emotionally prepared for the case to be over and/or be divorced. I have had several cases of late where one party wanted the divorce and the other wanted to stay married (notwithstanding how horrifically their spouse treated them and/or the kids). In those cases, if a party is not ready to resolve the case, you need to have patience and at the same time methodically do what is necessary to ultimately settle or try the case, as the case may be.
Sometimes, however, it is the lawyers, not the litigants, that impede settlement. I recently had a lawyer tell me that she hated to settle cases – not because there was a desire to run up fees – but rather, because she was so fixed in the correctness of her positions, that she would rather have judge decide she was wrong after a trial, then compromise (and I presume in her mind, sell out her client.) Quite frankly, had I not had several other cases with that lawyer over the years, including a long and ridiculous trial, I would have been shocked though I guess it was still a little surprising to hear out loud what I had surmised all along. There are other lawyers who, seeing dollar signs when there is money there to pay fees, will either fan the flames and create needless issues, or worse yet, let clients that don’t know better, have them do work, or right letters, or engage unnecessary experts instead of giving the proper advice to avoid unnecessary fees. There are lawyers that are proud that they try every case – this can’t be good for the client. There are lawyers who don’t let cases settle until you have prepared for trial and the trial is about to begin. There are lawyers who take bad positions, way too long, only to sell their clients out on the eve of trial. I have had complex matters where opposing counsel would not let their forensic accountants concede obvious, objective errors (e.g. they looked at the wrong document/used the wrong number) or even massive math errors.
But what to you do when it is the lawyer, not the litigant, that is the impediment to resolution. On thing you can do is to try to get a judge to actively case manage the case, get to know the file and weigh in on the issues. Some judges will do that, many won’t, not because they don’t want matters to resolve, but because there isn’t enough time in the day. Sometimes you can file a strategic motion which may not necessarily provide the desired relief at that moment, but can put the case on the right path. You can also try to get the case to mediation with a retired judge or respected mediator. This is often the first setting where a litigant gets an objective, unvarnished assessment of their case (and perhaps finds out for the first time that their entitlements or rights are not how they had been previously sold to them by their attorney. Sometimes it is the expert that takes over and becomes the problem. In one case, an expert, when confronted with a multi-million dollar math error, said that it was ok, and that he would just fix that error and change another number to get to the same result. In that case, a mediator who was also a forensic accountant was helpful in getting the litigant to see that their position was unsustainable.
However, you do it, the goal is to get the case on track where the litigant hears, perhaps for the first time, that they may have to reconsider their position, or get a second opinion, or take control of their own case.
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 Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or firstname.lastname@example.org.