Intensive Settlement Conference

During the current football free agent season, you hear the pundits frequently say that if you get a free agent that you want to sign in your building, don’t let him leave without a deal.  Why?  You don’t want them to get wooed by some other team or have second thoughts.   How does this apply to divorce, you may ask?

The case has been going on a long time.  One or both of the litigants or opposing counsel is difficult.  You are finally all together at a settlement conference, mediation, Intensive Settlement Conference at court.  Much to your surprise, real progress toward settlement is being made.  Finally, after a long, torturous day, you have a deal.

Arrows Choice Shows Options Alternatives Or Deciding Stock Photo  Photo courtesy of

Now what do you do?  Do you do something to bind the parties to the essential terms of the deal?  If in court, do you put the terms on the record?  If at mediation, do you prepare some type of memorandum as the Willinboro Mall case that we have blogged on requires?  Or do you adjourn to prepare a formal Marital Settlement Agreement or Consent Order, knowing that someone could have second thoughts and blow the deal?  What if your client is desperate for the case to be done, but they are agreeing to a borderline bad or really bad deal?  Do you suggest that you adjourn to allow cooler heads to prevail with the hope that your client may re-think their acquiescence (maybe it was out of guilt, shame, fatigue, duress, emotional abuse going on behind the scenes, maybe they didn’t really understand, maybe they didn’t take their medicine. may they took a substance, etc.)?

That said, why do we not seal the deal, all of the time, even without a formal agreement listing all of the terms?  Because the devil is often in the details.  There are logisitical issues, issues about security, specific tax issues, issues regarding the specifics about how you will divide a retirement asset, etc. as well as a lot of other boilerplate – some meaningfull – some less so – that you would include in a formal agreement.  Sometimes you think you have a deal but then when you start discussing the details, you realize that there is more work to do, or in some cases, that there really wasn’t a meeting of the minds, at all.

Ok – so it sounds like you should never have a settlement without a formal agreement.  That’s not always true either, even though it is probably advisable.  In a recent matter, one party repeatedly reneged on a deal, even after my client agreed to “just one more thing” over and over and over.  At a court settlement conference, both that litigant’s attorney and the mediator were of the firm opinion that if the deal wasn’t put on the record, they feared that the other party would renege yet again.  So even though this was complicated, we put the basic terms on the record because it was important to bind them for other reasons.  There are other times when it may make sense to bind people to their agreement, as well.  It really is a case by case decision.

These are scenarios that divorce lawyers and litigants face every day.  This is tough stuff.  There is sense of relief, if not euphoria, when a matter is settled. That said – you have to choose wisely before you walk out of the door without the settlement being completely buttoned down.

Eric SolotoffEric 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

Connect with Eric: Twitter_64 Linkedin

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.


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 .

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.


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


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. 


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

 There is no secret that New Jersey is suffering a significant crisis with respect to judicial vacancies. This year alone has seen a significant number of retirements without replacements being named.  The effect on the family courts, and in particular, the divorce docket, has been catastrophic.   I was at a meeting of family lawyers just recently at which the assignment judge of a county in the southern part of the state was kind enough to come and discuss directly with the bar the situation.  And while I deeply appreciated the fact that he did, and the efforts that the judges are making to accommodate the needs of the public, the fact of the matter is that the situation is untenable throughout the state.  In some counties, the situation is so bad that there are no, I mean no, trials for contested divorce cases.  In others, a case will not reach a judge for final disposition for three years,  In several counties, judges have upwards of 500 cases to handle.  Only a superhuman can give a matter the attention it deserves when having that type of case load.  

The purpose of this blog is not to pass blame, nor to comment of the swirl of political posturing that goes on when this subject comes up. Rather, despite the fact that the vast majority of judges that I know are working late nights and weekends, they simply can’t keep up effectively.  And that means that attorneys and litigants have to find an alternate method to resolve their cases in order to save money and get on with their lives and those of their children. Any good family lawyer will have an honest conversation about the cost ridden road to the Courthouse.  Certainly, there are times that judicial intervention is necessary and as lawyers, we are prepared to take a case to the judge. However, alternate dispute resolution is an important piece of the puzzle.

There are several effective methods of alternative dispute resolution that must be considered by litigants.  Some of these are woven into the court system.  Some are complimentary to the system. Before filing for divorce, talk with your lawyer to determine whether mediation, or arbitration is a viable option for your situation.  

Mediation can occur any time during the process, and can happen with or without attorneys. Many times litigants will agree to go to a mediator to resolve their differences and then the mediator will prepare a memorandum of the agreement that the parties have reviewed by their respective counsel.  Sometimes, someone may be uncomfortable going through mediation without legal counsel.  In that case, going with a lawyer can be a cost and time effective method to settle the case. When you go with a lawyer, you can make sure that your rights are protected, and you do not agree to anything without having the opportunity to discuss the ramifications.

Continue Reading Another day, Another Judge lost

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.