Practical Tips for Negotiating Settlement in Matrimonial Cases

Always treat your adversary and the other party with the utmost respect. The parties tend to be more reasonable if they feel that they are being treated courteously rather than being demeaned. Moreover, at some point you may be in your adversary's shoes and will want to receive the same courtesies. Never lie or misrepresent the facts. Some clients have a way of getting wrapped up in their case and it is imperative that you, as their attorney, maintain your role of a professional. Remember that your word is your bond and if you cannot be trusted, word will spread quickly in the legal community. Your client should know that you do not condone lies or misrepresentations. By the same token, if the adversary has not done her job, it is not your obligation to educate her with regard to the facts of the case or to the law. However, if this can be used to your advantage, particularly in a caucus between the attorneys, you may suggest to the lawyer that she has overlooked something and offer to give in on a point while receiving some consideration for it.

Always attempt to keep the hostility level as low as possible. Sometimes it is impossible to avoid the exchange of harsh words, particularly between the parties. However, you must assess every situation and once the steam is let off, it is important to bring everyone back to the table and remind them what they are there for, which is a collective interest in resolving matters by and between themselves.

Listen to the other party and listen to the other lawyer. Sometimes a party may feel the need to explain his or her position or even to 'vent.' Additionally, the other attorney may feel the need to advocate for her client so that her client feels as though the lawyer is in his corner. So long as everyone comes around to negotiate professionally with one another, these incidents should be tolerated. If you think people need a water break, food break or caucus, take the initiative and suggest it. It is helpful to do as much listening as possible. Letting the adversary talk will provide insight.

Take the approach that 'we' have a problem that 'we' must resolve together. This team approach puts everyone on the same side with the same goal of resolving the issues between the parties. It is less adversarial and fosters more of a settlement mentality.

Start with the easier issues. If issues such as custody and parenting time have already been resolved, discuss those issues and then work toward the next issue that is unresolved but has a possibility of resolution. This is one way to establish building blocks of settlement. If you start off with the most difficult issues, it may be impossible to overcome the hurdles that arise, but if you build up to the more difficult issues, it may be easier to resolve them.

Always negotiate from a position of strength. Start off with the strongest arguments that you have, as they may assist you with negotiating weaker issues. Use the law to your advantage. As it relates to equitable distribution and alimony, have the applicable statutes handy and refer to different factors to support your position or weaken your adversary's position.

Warn your client of a possible caucus. It may be necessary to caucus with the other lawyer. Inform your client of this possibility in advance so he is not surprised if you and the other lawyer leave the room to speak to one another. Keep the other lawyer on your side as much as possible. Be sensitive to the fact that like you, she has a client to represent and while she may be your adversary, you are there for the same reason ' to resolve the differences between your clients. You both understand that by agreeing to a settlement conference, you have recognized that the case should not be litigated for reasons that may include cost or exposure. This can help build a consensus. Nevertheless, you should not tolerate your adversary's taking unreasonable positions or acting in a confrontational or demeaning way to your client. Not only will this be an impediment to settlement, but you may be put in the difficult position of having to respond in kind in order to defend your client lest your client feel you are being strong-armed.

Be creative. Think outside the box. Once the priorities of each of the parties are established, you may be able to give the other party something that is not a priority for your client and get something for your client in return. If you know the most important goal for the adversary, try to meet that goal. This helps create a win/win result. There may be a way to resolve the case in an equitable manner that affords each of the parties the belief that the negotiation was successful and that they received what meant most to them.

Do not reject a proposal just because it is beyond the scope of the ordinary or customary proposal or is different from what you have done in the past. The failure to recognize an unusual or creative approach to settling a case might be a lost opportunity. To that end, it is imperative to understand if there is an outside influence on the client and if so, who the 'power broker' or decision-maker is. Many times, a party's family member or new significant other may be calling the shots behind the scenes. The client may be feeling as though he needs to appease that person. If this is the case, the settlement conference may need to be structured so that this person is involved in the process. While the person may not be present, he may be consulted via telephone.

In almost every case, one party is emotionally or financially weaker than the other. If you represent the weaker party, you must not let the other party control the settlement. The conference must be on an equal playing field.

Attention to Details

In terms of resolving cases, it is very appropriate to settle a case in broad strokes, but a second meeting may be needed to iron out the details. A settlement that is not complete is a not a settlement. Furthermore, by leaving out issues or specifics, an attorney may open himself up to a claim by the client later. It is helpful to have a 'hit list' of issues. The easy ones are obviously custody, parenting time, child support and alimony. However, assets and liabilities must be specifically addressed. The client's Case Information Statement or financial disclosure statement should contain a description of all of these; however, it may be that assets came to light subsequent to the filing of the disclosure. Each and every asset and liability must be dealt with in terms of an overall settlement. Make sure to state specifically at the meeting that the settlement is without prejudice and there is no agreement until there is a complete agreement. For example, in New Jersey, under certain circumstances an agreement can be enforceable even if it is not complete.

Using an Expert

It may be crucial to have a party's expert or a joint expert at the meeting or, at the very least, available by telephone. Although the client may balk at paying to have an expert at the meeting, the money may be well spent if the expert is able to explain points, which bolster your client's position, to the other side. Moreover, scheduling a second meeting when an issue could have been resolved at a first meeting is an even more costly exercise. Sometimes too many cooks can spoil the broth. However, if the experts are settlement-minded, their presence can be very helpful to assist in the resolution of the matter, particularly where a creative solution needs to be fleshed out. If there is a joint expert in the case, it is important that the expert maintain the appearance of neutrality. If he meets with one party or the attorney, he should do the same with the other side so that both parties feel as though this person is working toward their mutual interests.

Beyond party experts, sometimes the presence of a very non-customary party will assist in the resolution of the case. In one case, the parties' rabbi attended the settlement conference. It was through his assistance that the parties and counsel were able to resolve the case.

Be Wary of the 'Renegotiator'

The 'renegotiator' is the kind of attorney who will say, 'All we need is A, B and C to resolve the case.' After consulting with your client, you are prepared to accede to these demands. When you then return to the opposing counsel to inform him of the good news that the case is settled, he says, 'What about D, E and F?' This type of adversary makes it very difficult to resolve a case because to him, there is never an end to the negotiations. If the adversary is known for this type of conduct or you have experienced it before, make it very clear from the outset that you will not be negotiating in this manner. If you know the other attorney or have had prior experience with him in this regard, it may be helpful to have another professional at the conference. The other attorney and his client will then not only hear from you, but from a third party, that you believe the attorney is not negotiating in good faith.

If your case is in court and you have a settlement-friendly judge, advise the judge in advance that the settlement conference is taking place and ask the judge if he or she would be willing to engage in a telephone conference if there are issues on which you wish to have the court's input during the meeting. Additionally, the judge may be willing to have the settlement conference take place at the courthouse and engage in periodic meetings with the lawyers so that the lawyers can address issues with the court and relate those positions to their clients. In many cases this is helpful, however, it is important to make sure that the judge is educated on the facts and law and also the status of the negotiations so that he or she does not offer advice that can undue many hours of settlement negotiations. Explain to your client that while the court has offered its advice based upon what took place in settlement conferences, the court is not bound to rule the same way after hearing all the facts at the time of a trial.

Understand the personalities of the people involved. Is it a case where comprehensive settlement proposals must be discussed or is it more appropriate to tackle one issue at a time? Every case comes with its own personalities; a technique that may work for one case may not work for another case.

Negotiate in 'User-Friendly' Premises

Although law offices are usually not conducive to this, have a room that is more akin to a living room than a war room. If you have the ability to have a conference room with sofas, comfortable chairs and a round table, people may be less likely to be adversarial in such an environment rather than sitting across from each other in a board room. In addition, always have coffee, tea, water and snacks available. Try to create a atmosphere of teamwork and cooperation rather than one of conflict.

Know When to Stop

Know when the settlement conference has reached a point of diminishing returns. Agree to break and set up a second conference. Again, the particular circumstances and personalities involved will dictate whether a meeting can last for two hours, four hours or ten hours. Do not continue beyond the point of exhaustion. Be sure you are thinking clearly. Do not be in a position where you have taken two steps forward but take five steps back. Agree to adjourn and have your calendar ready so that you can schedule another settlement conference prior to leaving this one.

Post-Conference

Immediately after the conference, write up a memorandum of the last positions of each of the parties. Once your client has agreed with your version of what took place, communicate that version in a confirming letter to the other party. This should be sent 'without prejudice.' If a second meeting is scheduled, such a letter will prevent a disagreement upon reconvening as to what everyone's respective positions are. Keeping a time line of the settlement in this way will help you verify what took place.

If your client has authorized you to make a written offer of settlement, make sure the client approves the letter before it goes out. Even a client who says, 'I trust you, just send it' must give his or her approval of all correspondence, particularly settlement letters. Sit down in person or on the telephone with your client a day or two after they have had time to think about what has occurred and get from them their sense of the conference. Once again, it is imperative never to lose sight of your client's goals. You may have a view of what occurred at the meeting that differs from that of your client, but it is your client's case, and without verifying your client's position and feelings, you are not doing a complete job.

Once all discovery has been completed, most attorneys know that there are certain parameters within which a court may rule after hearing all of the facts. Obviously, this is inapplicable to custody or removal actions. Remember, almost all cases settle without a trial. If your case is not settling, step back and view the lack of settlement as a failure. Regroup and readdress how to settle the case. Continue to advise your client that no matter how frustrating settlement negotiations may seem, a trial comes with no guaranties and the result can be very different from what your client desires. If the attorneys and parties understand that a court is likely to rule within a narrow range, it becomes clear that it does not make sense to invest the time and effort in the preparation and trial of a case and the potential of an appeal when a family's resources can be used best elsewhere.

Lynne Strober, a member of this newsletter's Board of Editors and a Fellow of the American Academy of Matrimonial Lawyers, co-chairs the Family Law Department of the West Orange, NJ, firm of Mandelbaum Salsburg. She handles all aspects of divorce litigation. David S. Carton, a partner in the firm, represents clients in all aspects of family law practice.

Part One of this article discussed preparing for a settlement conference. The conclusion herein covers the conference and post-conference.

During the Conference

It is imperative that you take very careful notes during the negotiations. Some practitioners actually keep a timeline showing the time that each party offered its respective position. This simplifies matters if there is a later dispute as to what was agreed upon or offered.

Always treat your adversary and the other party with the utmost respect. The parties tend to be more reasonable if they feel that they are being treated courteously rather than being demeaned. Moreover, at some point you may be in your adversary's shoes and will want to receive the same courtesies. Never lie or misrepresent the facts. Some clients have a way of getting wrapped up in their case and it is imperative that you, as their attorney, maintain your role of a professional. Remember that your word is your bond and if you cannot be trusted, word will spread quickly in the legal community. Your client should know that you do not condone lies or misrepresentations. By the same token, if the adversary has not done her job, it is not your obligation to educate her with regard to the facts of the case or to the law. However, if this can be used to your advantage, particularly in a caucus between the attorneys, you may suggest to the lawyer that she has overlooked something and offer to give in on a point while receiving some consideration for it.

Always attempt to keep the hostility level as low as possible. Sometimes it is impossible to avoid the exchange of harsh words, particularly between the parties. However, you must assess every situation and once the steam is let off, it is important to bring everyone back to the table and remind them what they are there for, which is a collective interest in resolving matters by and between themselves.

Listen to the other party and listen to the other lawyer. Sometimes a party may feel the need to explain his or her position or even to 'vent.' Additionally, the other attorney may feel the need to advocate for her client so that her client feels as though the lawyer is in his corner. So long as everyone comes around to negotiate professionally with one another, these incidents should be tolerated. If you think people need a water break, food break or caucus, take the initiative and suggest it. It is helpful to do as much listening as possible. Letting the adversary talk will provide insight.

Take the approach that 'we' have a problem that 'we' must resolve together. This team approach puts everyone on the same side with the same goal of resolving the issues between the parties. It is less adversarial and fosters more of a settlement mentality.

Start with the easier issues. If issues such as custody and parenting time have already been resolved, discuss those issues and then work toward the next issue that is unresolved but has a possibility of resolution. This is one way to establish building blocks of settlement. If you start off with the most difficult issues, it may be impossible to overcome the hurdles that arise, but if you build up to the more difficult issues, it may be easier to resolve them.

Always negotiate from a position of strength. Start off with the strongest arguments that you have, as they may assist you with negotiating weaker issues. Use the law to your advantage. As it relates to equitable distribution and alimony, have the applicable statutes handy and refer to different factors to support your position or weaken your adversary's position.

Warn your client of a possible caucus. It may be necessary to caucus with the other lawyer. Inform your client of this possibility in advance so he is not surprised if you and the other lawyer leave the room to speak to one another. Keep the other lawyer on your side as much as possible. Be sensitive to the fact that like you, she has a client to represent and while she may be your adversary, you are there for the same reason ' to resolve the differences between your clients. You both understand that by agreeing to a settlement conference, you have recognized that the case should not be litigated for reasons that may include cost or exposure. This can help build a consensus. Nevertheless, you should not tolerate your adversary's taking unreasonable positions or acting in a confrontational or demeaning way to your client. Not only will this be an impediment to settlement, but you may be put in the difficult position of having to respond in kind in order to defend your client lest your client feel you are being strong-armed.

Be creative. Think outside the box. Once the priorities of each of the parties are established, you may be able to give the other party something that is not a priority for your client and get something for your client in return. If you know the most important goal for the adversary, try to meet that goal. This helps create a win/win result. There may be a way to resolve the case in an equitable manner that affords each of the parties the belief that the negotiation was successful and that they received what meant most to them.

Do not reject a proposal just because it is beyond the scope of the ordinary or customary proposal or is different from what you have done in the past. The failure to recognize an unusual or creative approach to settling a case might be a lost opportunity. To that end, it is imperative to understand if there is an outside influence on the client and if so, who the 'power broker' or decision-maker is. Many times, a party's family member or new significant other may be calling the shots behind the scenes. The client may be feeling as though he needs to appease that person. If this is the case, the settlement conference may need to be structured so that this person is involved in the process. While the person may not be present, he may be consulted via telephone.

In almost every case, one party is emotionally or financially weaker than the other. If you represent the weaker party, you must not let the other party control the settlement. The conference must be on an equal playing field.

Attention to Details

In terms of resolving cases, it is very appropriate to settle a case in broad strokes, but a second meeting may be needed to iron out the details. A settlement that is not complete is a not a settlement. Furthermore, by leaving out issues or specifics, an attorney may open himself up to a claim by the client later. It is helpful to have a 'hit list' of issues. The easy ones are obviously custody, parenting time, child support and alimony. However, assets and liabilities must be specifically addressed. The client's Case Information Statement or financial disclosure statement should contain a description of all of these; however, it may be that assets came to light subsequent to the filing of the disclosure. Each and every asset and liability must be dealt with in terms of an overall settlement. Make sure to state specifically at the meeting that the settlement is without prejudice and there is no agreement until there is a complete agreement. For example, in New Jersey, under certain circumstances an agreement can be enforceable even if it is not complete.

Using an Expert

It may be crucial to have a party's expert or a joint expert at the meeting or, at the very least, available by telephone. Although the client may balk at paying to have an expert at the meeting, the money may be well spent if the expert is able to explain points, which bolster your client's position, to the other side. Moreover, scheduling a second meeting when an issue could have been resolved at a first meeting is an even more costly exercise. Sometimes too many cooks can spoil the broth. However, if the experts are settlement-minded, their presence can be very helpful to assist in the resolution of the matter, particularly where a creative solution needs to be fleshed out. If there is a joint expert in the case, it is important that the expert maintain the appearance of neutrality. If he meets with one party or the attorney, he should do the same with the other side so that both parties feel as though this person is working toward their mutual interests.

Beyond party experts, sometimes the presence of a very non-customary party will assist in the resolution of the case. In one case, the parties' rabbi attended the settlement conference. It was through his assistance that the parties and counsel were able to resolve the case.

Be Wary of the 'Renegotiator'

The 'renegotiator' is the kind of attorney who will say, 'All we need is A, B and C to resolve the case.' After consulting with your client, you are prepared to accede to these demands. When you then return to the opposing counsel to inform him of the good news that the case is settled, he says, 'What about D, E and F?' This type of adversary makes it very difficult to resolve a case because to him, there is never an end to the negotiations. If the adversary is known for this type of conduct or you have experienced it before, make it very clear from the outset that you will not be negotiating in this manner. If you know the other attorney or have had prior experience with him in this regard, it may be helpful to have another professional at the conference. The other attorney and his client will then not only hear from you, but from a third party, that you believe the attorney is not negotiating in good faith.

If your case is in court and you have a settlement-friendly judge, advise the judge in advance that the settlement conference is taking place and ask the judge if he or she would be willing to engage in a telephone conference if there are issues on which you wish to have the court's input during the meeting. Additionally, the judge may be willing to have the settlement conference take place at the courthouse and engage in periodic meetings with the lawyers so that the lawyers can address issues with the court and relate those positions to their clients. In many cases this is helpful, however, it is important to make sure that the judge is educated on the facts and law and also the status of the negotiations so that he or she does not offer advice that can undue many hours of settlement negotiations. Explain to your client that while the court has offered its advice based upon what took place in settlement conferences, the court is not bound to rule the same way after hearing all the facts at the time of a trial.

Understand the personalities of the people involved. Is it a case where comprehensive settlement proposals must be discussed or is it more appropriate to tackle one issue at a time? Every case comes with its own personalities; a technique that may work for one case may not work for another case.

Negotiate in 'User-Friendly' Premises

Although law offices are usually not conducive to this, have a room that is more akin to a living room than a war room. If you have the ability to have a conference room with sofas, comfortable chairs and a round table, people may be less likely to be adversarial in such an environment rather than sitting across from each other in a board room. In addition, always have coffee, tea, water and snacks available. Try to create a atmosphere of teamwork and cooperation rather than one of conflict.

Know When to Stop

Know when the settlement conference has reached a point of diminishing returns. Agree to break and set up a second conference. Again, the particular circumstances and personalities involved will dictate whether a meeting can last for two hours, four hours or ten hours. Do not continue beyond the point of exhaustion. Be sure you are thinking clearly. Do not be in a position where you have taken two steps forward but take five steps back. Agree to adjourn and have your calendar ready so that you can schedule another settlement conference prior to leaving this one.

Post-Conference

Immediately after the conference, write up a memorandum of the last positions of each of the parties. Once your client has agreed with your version of what took place, communicate that version in a confirming letter to the other party. This should be sent 'without prejudice.' If a second meeting is scheduled, such a letter will prevent a disagreement upon reconvening as to what everyone's respective positions are. Keeping a time line of the settlement in this way will help you verify what took place.

If your client has authorized you to make a written offer of settlement, make sure the client approves the letter before it goes out. Even a client who says, 'I trust you, just send it' must give his or her approval of all correspondence, particularly settlement letters. Sit down in person or on the telephone with your client a day or two after they have had time to think about what has occurred and get from them their sense of the conference. Once again, it is imperative never to lose sight of your client's goals. You may have a view of what occurred at the meeting that differs from that of your client, but it is your client's case, and without verifying your client's position and feelings, you are not doing a complete job.

Once all discovery has been completed, most attorneys know that there are certain parameters within which a court may rule after hearing all of the facts. Obviously, this is inapplicable to custody or removal actions. Remember, almost all cases settle without a trial. If your case is not settling, step back and view the lack of settlement as a failure. Regroup and readdress how to settle the case. Continue to advise your client that no matter how frustrating settlement negotiations may seem, a trial comes with no guaranties and the result can be very different from what your client desires. If the attorneys and parties understand that a court is likely to rule within a narrow range, it becomes clear that it does not make sense to invest the time and effort in the preparation and trial of a case and the potential of an appeal when a family's resources can be used best elsewhere.

Lynne Strober, a member of this newsletter's Board of Editors and a Fellow of the American Academy of Matrimonial Lawyers, co-chairs the Family Law Department of the West Orange, NJ, firm of Mandelbaum Salsburg. She handles all aspects of divorce litigation. David S. Carton, a partner in the firm, represents clients in all aspects of family law practice.