Archives: Settlement

I see it all the time.  The fight rages on for the fight’s sake.  Each party sure that they are right.  Each party insistent that they must win.  The lawyers pile on, adding fuel to the fire.  Worse yet, some times this happens when the major issues are resolved and the battle continues because of minor issues or non-issues.

8535059_s (1)

In these cases, sometimes the parties don’t even know that they are as close to settlement as they are. Often, they don’t quantify the remaining amount in dispute to figure out that right or wrong, they will never in a lifetime recoup the legal fees it will cost to be right.  Clearly, they don’t consider the emotional cost being right is exacting and/or the value of putting the issue behind you.

Now some people will continue to fight because the fight is all they have left of the marriage or they are otherwise emotionally unable to let go and move on.  In those cases, you may have to wait them out, as we have blogged about in the past.

Some times, it is better to avoid the fight altogether and compromise the number.  As I have said before, sometimes it is better to look at the big picture and negotiate numbers as opposed to how you got to the number because you may ultimately agree to compromise on the number but will never agree how you got there.

However, most people are sane and rational when removed from the stress of the divorce.  Sometimes, you need to take a step back and figure out which issues there is agreement on and which issues remain open.  For the issues that remain open, it is then wise to quantify them to see how much is really at stake.  Figure out what you would get if you won and if you lost and also look at the midpoint.  Then think about how much it is going to cost to get a decision and decide (1) does the cost exceed the amount at issue and (2) is it worth losing the resolution on the major issues?

Most importantly, figure out if it is really worth it to be right or whether it is better to be done.


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 esolotoff@foxrothschild.com.

Photo credit: Copyright: <a href=’http://www.123rf.com/profile_cteconsulting’>cteconsulting / 123RF Stock Photo</a>

So often, parties go to court only to be told by the judge to “work it out.”  It’s a strange phenomenon; after all, if the parties could “work it out,” why would they go to the trouble and expense of hiring lawyers, gathering proofs, preparing pleadings, and appearing in court?

We all know that one of the risks inherent in litigation is that the parties will have to deal with the realities and limitations of the very busy Court system.  No matter where you live in New Jersey, every court house is busy and every judge has many cases to preside over.  Oftentimes, judges want the parties to resolve the issues themselves simply because they know that – given all of the other cases on their plates – a decision could be a long time coming.

While settlement can lead to a fair outcome, sometimes the parties are too far apart in their positions and need to call on the judge to make a decision.  In those cases, it’s important to remember that litigants have a right to a decision from the court, including the necessary findings of fact and conclusions of law.  In a recent unpublished decision from the Appellate Division, Watson v. Chamberlain, the parties were unable to resolve a dispute about the payment of their child’s medical expenses.  Instead of deciding the issue or ordering the parties to produce discovery and proceeding to a hearing, the Court “directed the parties and counsel to try to work out the $609” Ms. Chamberlain claimed Mr. Watson owed her.  When the parties appealed the issue, the Appellate Division’s hands were tied.  Without any sort of record of factual findings or conclusions of law – in other words, without any kind of decision by the Court – there was nothing for the Appellate Division to review.  In the end, the Appellate Division ordered that the trial judge conduct the hearing regarding the medical expense issue anyway.  A lot of time – and legal fees – could have been saved if the trial judge had made a decision the first time around.

It is part of the attorney’s job to know when to settle and when to litigate.  And it is, without a doubt, the judge’s job to make a decision when the parties can’t do it themselves.  If the parties truly have an issue that they cannot work out, we have to advocate to make sure the judge decides, no matter how much pressure is put on the parties to settle.  Otherwise, there is no recourse; the Appellate Division won’t be able to affirm or remand a decision that never happened, and the parties will be left in limbo indefinitely.

 


headshot_diamond_jessicaJessica C. Diamond is an associate in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or jdiamond@foxrothschild.com.

“We can do this the easy way or the hard way.”  I tried finding the movie that this saying came from but it is in many.  For better or worse, this saying has become a recent mantra of mine – and not just with my kids.  In practice, I often tell this to clients and what it means, if the other side wants to resolve things (a particular issue or the entire case, if possible) in a reasonable and expeditious manner, we can do that.  On the other hand, if they insist on being reasonable, we can do that too. 

 30348236_s

Don’t get me wrong, sometimes/often you have to fight if not litigate an issue.  But sometimes you don’t.  Sometimes in the same case, there are going to be good faith, meaningful disagreements that may have to be decided by a judge, arbitrated or hashed out in several mediation sessions – and at the same time, there will be issues that are simply not worth fighting about and/or can be resolved easily with a little communication and a lot of common sense. 

Often, this silly skirmishes happen at the beginning of a case, when people don’t know the landscape or think that they have to prove something (“if I am soft now, he will run roughshod over me the whole case”).  Other times, people are disagreeable just to be disagreeable.  I recently had a motion where, though the other side previously consent in writing to several things, he opposed them just to oppose them to the court – even though he really didn’t oppose them when you parsed the rhetoric.

That said, doing it the “hard way” on things that should be done the “easy way” only serves to ratchet up emotions, hostilities and legal fees – often needlessly.  Again, I am not suggesting that you should not fight the good fight when it is necessary.  On the other hand, think long and hard if you want to endure the time, money and aggravation fighting over easily resolved issues or fighting just to fight.

Like I said, we can do this the easy way or the hard way – the choice is yours.

_________________________________________________________

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 esolotoff@foxrothschild.com.

Connect with Eric: Twitter_64 Linkedin
   Photo credit: Copyright: <a href=’http://www.123rf.com/profile_abluecup’> / 123RF Stock Photo</a>

33691713_sRecently, 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.

_________________________________________________________

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 esolotoff@foxrothschild.com.

Connect with Eric: Twitter_64 Linkedin

Photo credit:  Copyright: <a href=’http://www.123rf.com/profile_lightwise’> / 123RF Stock Photo</a>

**This a reprint of a blog originally posted on August 13, 2010.

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 freedigitalphotos.net.

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 esolotoff@foxrothschild.com.

Connect with Eric: Twitter_64 Linkedin

Last year, I wrote on this blog about “How to Not Settle Your Case.”  This case on the heels of several months of “interesting”, to say the least, negotiations on several matters which got me thinking about creating a list of things to do if you really don’t want to settle your case. In justifying this list, I noted:

Hey, everybody 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 thousands of dollars.

Since then, I thought of a few more to add to the list.

  • Your new significant other is a lawyer, they know better than your lawyer.  Of course they know better, you have been completely honest with them.  Of course they aren’t telling you what you want to hear – why would they do that?  And when they are speaking to their matrimonial partner about your case, they are giving them all of the facts, context and subtext of the case.
  • Every case is the same, so make sure that you demand the same deal that your hairdresser, or cousin’s friend, heard that that their cousin’s friend got.  While this information, if true, may be food for thought or points of discussion, ignore the potential differences inherent to each matter and demand that you get the same, even if it bears no relation to the appropriate resolution of the case.
  • Pretend that you are Bill Murray in Groundhog Day, and keep having the same conversation over and over, hoping that the answer will be different.  And don’t just do that with your spouse, do it with your lawyer too.
  • Hold grudges and let anger blind you from coming to a resolution that lets you move on with your life.  They are your feelings, don’t only embrace them but let them control all.  And don’t get therapy to deal with the real hurt, betrayal, rejection, depression, mourning, etc. that you are feeling.
  • Allow emotions to impair your judgment on financial issues.  I know that you can’t imagine your spouse living in your home with someone new, but it’s a good idea to take less for the house by selling it rather than allowing your spouse to buy you out.
  • Create a ruse that an emotional issue is really a financial one.  There will be a lot of nasty letters and everyone will be confused because you are not even arguing about the same thing, but at least one of you and his/her lawyer won’t know it.
  • Profess a desire to settle but then never compromise on any issue.  Also, don’t let your experts compromise either, even in the face of an error in their report.  And if they do have to concede the error, make sure that they change something else so that their final number never actually changes.
  • Hire a new lawyer on the eve of mediation or trial, and let that person enter the case like a bull in a china shop, as if the case just started, and there was no prior history.  Ignore the fact that both sides were making concessions and working towards and amicable resolution, and just blow things up and start from scratch, without any basis for doing so.  I am not saying that people cannot and should not change lawyers.  Sometimes it is necessary.  Sometimes the concessions being made are too much, for a variety of reasons.  But in cases where the negotiations and concessions are appropriate on both sides, if you don’t want to settle, pull the rug out from under the negotiations.
  • Hire a second, then third, then fourth, then fifth attorney every time something doesn’t go your way. 
  • In alternating conversations with your lawyer, tell them that you need to settle immediately, then tell her that you want her to litigate aggressively, then settle, then litigate, and so on.  Follow that up by being angry with your lawyer because they were trying to settle when you were back to aggressively litigating, and vice versa.
  • Believe your spouse when they are pressuring you to settle for a lot less than your attorney tells you would be a reasonable settlement.  While perhaps this doesn’t belong on this list, because it is a “how not to settle” list, maybe it belongs on a new list regarding regrets people have after taking a bad deal for the wrong reason.
  • Let your spouse convince you that they you don’t need all of the discovery because “you can trust me”, when all other evidence indicates that you can’t.  Perhaps this belongs with the prior thought.

In case you don’t remember, here is last year’s 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 spouse’s 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 won’t try protecting 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.

In case it needs to be said (though I doubt it), 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.

_________

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 esolotoff@foxrothschild.com.

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 esolotoff@foxrothschild.com .

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 esolotoff@foxrothschild.com.

 

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.

Continue Reading If You Enter Into An Agreement or Consent Order, You Can't Appeal It

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 esolotoff@foxrothschild.com.