Settling Matrimonial Cases

Almost every matrimonial case gets settled ' more than 99%. In addition to figuring out how to resolve each case, attention must be paid to settling the case in a way that is most favorable to your client. However, remember that one of the trademarks of a good settlement is that both parties are relatively equal in their reaction to it.

The Lawyer's Perspective

From Lynne Strober: Every case is different and it is important to know who the players are. There are five key questions to ask before the meeting (the top five hit list):

1. What can you expect from your adversary?
2. What can you do to help make progress at a meeting?
3. How will your client behave?
4. What will make your client comfortable?
5. What does your client want from the meeting?
6. Pre-Settlement Preparation

Do not go into a settlement conference intending to walk away with all the marbles, because you will make the session unproductive. There must be a realistic resolution with each party receiving some favorable points.

Make sure that the client understands your plan for the case. It is very important to communicate with him or her. Schedule a meeting in advance of a settlement conference to talk about the case. Make sure that you and the client are on the same page. You can only go forward on behalf of your client if both of you agree on how the case should proceed.

Your client needs to have reasonable and appropriate expectations with regard to the outcome of the case. He or she may have a different goal from those of another client under the same facts. You must understand that the client's idea of a beneficial settlement may be different from what you think is beneficial. Explain your reasoning.

Be an advocate as well as a counselor. Managing a client's expectations should start with the initial consultation. The law applies to everyone; do not make promises that you cannot keep. Being a zealous advocate does not preclude you from telling a client that the facts of the case and the applicable law do not support the position he or she wants to take. An unhappy client will be less likely to pay the bill and refer other clients to you. Make sure the client has realistic goals. For example, settlement is unlikely if a client wants 100% of the assets.

Know all the information in the file. Know the parties' income, what the assets are and the value of those assets, the timesharing problems and any issues with regard to the assets. Come up with calculations in advance; if it is a child support guidelines case, prepare the guidelines worksheet. Brainstorm with the client and other experts in advance. Have the client participate so that the client has ownership of the results. Make sure that all discovery is completed or enough discovery is completed in advance of settlement discussions. Prepare a cogent presentation of the case. Make sure that you know the facts inside and out. A client will not feel very confident if, during the discussions, you ask her when she and her husband were married, how old their children are, or what she earned last year. Knowing the facts will assist in exuding confidence to your client, as well as your adversary and the other spouse. Further, if it is clear to the other party that you know the facts of the case, s/he may be more than willing to make concessions in your client's favor. Be prepared ' not only for the meeting, but during any call with the client, adversary or court.

It may be helpful to exchange proposals with the adversary in advance, but that is frequently not necessary. Think about the case in advance of the meeting. Think about contingencies and options.

During the Meeting

When the meeting takes place, it is very important to listen to everyone. It is best to be quiet during the beginning of the meeting and let the parties explain their positions so you can take these positions into consideration and then incorporate the information into the outcome. It is often difficult to be quiet during a meeting and listen. Failure to listen will prevent you from seeing what the other side really wants, and you may miss points to which they have already conceded. Read between the lines.

Figure out what issues the other side needs to settle. See if their “asks” are something you can deliver. It will reduce tensions and acrimony if they get what they want. Consider:

• Is the other party focused on something that is a minor issue in your opinion and your client's opinion?
• Is there any way to satisfy the adversary's hot-button issue and obtain something more valuable in return?
• Is the other party still focused on revenge, retribution, disappointment or another emotional burden?
• Is it better to have a mediator present to give the other party a realistic perspective on potential outcome because their lawyer has not been successful or is unwilling to do so?

Bring whatever experts will be helpful to the resolution of the case and let the other side know. A better result is achieved when all of the individuals involved in the case are “all in the same boat together.” A team approach is created; everyone has ownership of the results and is responsible for them. Later on, part of the team cannot then take the position that they were not in agreement with what was being discussed. This approach is helpful because it provides support for the client. One member of the team cannot know everything. In most cases, more brains are better than one.

Know Your Adversary

Knowledge is power. Any little fact can help you get an advantage for your client. What can you expect from your adversary? What can you expect from his accountant? What can you do to help make progress at a meeting? Does your adversary like to chit-chat prior to conducting business? Will this be more productive? Are mornings or afternoons more productive? Does opposing counsel feel insecure if the meeting takes place outside of his/her office? Is the attorney or client in control? Does the attorney play his/her cards close to the vest? Is s/he competent in the field, or is s/he practicing outside of his/her comfort zone? Is s/he a bully who needs to be put in his/her place early? Does s/he need to impress the client, but is more reasonable outside the client's presence? Is what the accountant put together “junk science” and s/he know that s/he does not have a strong case? Is opposing counsel being paid or is s/he owed substantial fees? What is the adversary's reputation for settling cases?

On the rare occasion, it can be helpful to be creative and bring the unexpected guest. For example, during a recent case, a rabbi come to the meeting to help the parties work toward a resolution. On another occasion, a therapist attended the meeting.

Draft an agreement and send it to the adversary in advance. Sometimes this is helpful to set boundaries for the discussions of the case.

Alternative Solutions

On occasion, less can be more. Instead of meetings, a series of letters, calls or e-mails can be sufficient to address issues. At other times, meetings are helpful. If an initial approach is unsuccessful in resolving the case, try a new approach.

Mediation may be helpful. It will add another opinion to the mix. If there is a lot of drama, mediators can be very helpful in resolving the case. Give consideration to the skill set of the mediator. Is the mediator forceful, creative, understanding and nurturing, wise, able to facilitate a resolution?

Timing, Atmosphere and Approach

When you are scheduling a meeting, it is important to set aside sufficient time without a deadline. It may be a good idea to have food at the meeting. It is important to create a comfortable environment. Set aside extra conference rooms for caucusing. Often, it is a good idea to divide up and then regroup. Allow the parties and your adversary to take walks to discuss issues and return to the table.

Clients should feel free to speak up and address their concerns, get angry, and raise issues. Some clients need to feel that they have found their voice and that their concerns have been heard. If the client's position is articulated differently from yours, leave the room to have a private discussion.

It is a continuing struggle to stay on point with the position in the case. It is important to have some flexibility with regard to the approach for resolution but it is important that you and your client are clear as to what the goals are and what the plan is for resolution. There are always different ways to resolve an issue that are appropriate for your client. Be open to viewing problems from a different angle.

Should a meeting start out dealing with the most contentious issues first or should you initially deal with smaller issues to establish building blocks and demonstrate that matters can be settled?

And Finally '

There is no script to be followed in every case and no right or wrong answers. It may be that every case should be handled differently, based on the facts, the litigant or the attorneys. However, by following the top five hit list referenced in the beginning of this article, you will then be able to determine what needs to be done in each case to obtain the best possible result for your client.

The Accountant's Perspective

From Gerard Giannetti, CPA: The accountant/expert's role in matrimonial settlement can be very important. While the family lawyer is the quarterback, the accountant can sometimes be the best defensive or offensive coordinator on the team. The accountant participates in most ' if not all ' economic decisions in settling a matrimonial agreement. These include matters involving the tax implications of settling alimony/equitable distribution to those involving the complexities revolving around the spouses' business.

The greatest value that the accountant/expert lends to a case is to manage the client's financial expectations. Before any settlement conference, it is important to schedule an intensive meeting with the attorney to discuss all possible financial scenarios that may arise from a prospective settlement. This will assist the attorney in analyzing the overall landscape of the potential settlement. Sometimes it is necessary to think outside the box ' a settlement can transform during the process. Once you have an overall picture that is presented by the client, then the accountant/expert and the attorney can manage all aspects of the agreement to fit the basic blue print approved by the client.

Some matters are very straightforward, e.g., the simple distribution of assets and analysis of income, which involve a lifestyle analysis. Some cases, however, become more complicated when various businesses are involved, and valuations are needed.

The process is similar to putting together a puzzle. The more pieces there are, the harder it is. This is why it is very important that the attorney and the experts work closely together to come up with a solution. In the end, the client benefits from having a team that works cohesively together. Creating a settlement is more of an art than a science. Listing assets/income on paper helps give perspective to all involved; it creates a moveable piece of art on which each member of the team has the ability to comment and build. Frequently, clients achieve a better understanding of what a settlement will look like now and into the future when they see it in a visual format. This method goes a long way towards educating the client on the economic aspects of any settlement.

The Judge's Perspective

From Michael K. Diamond: More and more attorneys and litigants are turning to retired family court judges to mediate their matrimonial matters, both pre- and post-judgment. They do this for a very simple reason. The retired judge can give the parties, as well as their attorneys, the benefit of his/her experience on the bench. The judge looks at the case independently of one side or the other. The judge's suggestions or recommendations are based upon what can be realistically expected in the courtroom if the matter goes to trial.

During a mediation, the parties have the ability (and should be so informed) to speak freely, uninhibited by the rules of evidence, which would apply during a trial. The mediator cannot order anything, but can clearly make suggestions. At trial, the judge makes the final decision that will affect the parties' future. Mediation affords the parties the opportunity to make the final decision themselves, rather than put those decisions in the hands of a trial judge.

It is most important that at mediation, the parties have the opportunity to explain their positions, etc., and not leave it to their attorneys. The final decision should be that of the parties and not the court.

Lynne Strober , a member of this newsletter's Board of Editors, chairs the family law department at Mandelbaum Salsburg, P.C. Gerard Giannetti is the Founder and principal of Giannetti & Associates, LLC, a full-service forensic, litigation consulting and tax practice. Michael K. Diamond, retired as the Presiding Judge of the Family Division, Passaic County, New Jersey Superior Court, is now a Mediator/Arbitrator in Family matters at Mandelbaum Salsburg.

Almost every matrimonial case gets settled ' more than 99%. In addition to figuring out how to resolve each case, attention must be paid to settling the case in a way that is most favorable to your client. However, remember that one of the trademarks of a good settlement is that both parties are relatively equal in their reaction to it.

The Lawyer's Perspective

From Lynne Strober: Every case is different and it is important to know who the players are. There are five key questions to ask before the meeting (the top five hit list):

1. What can you expect from your adversary?
2. What can you do to help make progress at a meeting?
3. How will your client behave?
4. What will make your client comfortable?
5. What does your client want from the meeting?
6. Pre-Settlement Preparation

Do not go into a settlement conference intending to walk away with all the marbles, because you will make the session unproductive. There must be a realistic resolution with each party receiving some favorable points.

Make sure that the client understands your plan for the case. It is very important to communicate with him or her. Schedule a meeting in advance of a settlement conference to talk about the case. Make sure that you and the client are on the same page. You can only go forward on behalf of your client if both of you agree on how the case should proceed.

Your client needs to have reasonable and appropriate expectations with regard to the outcome of the case. He or she may have a different goal from those of another client under the same facts. You must understand that the client's idea of a beneficial settlement may be different from what you think is beneficial. Explain your reasoning.

Be an advocate as well as a counselor. Managing a client's expectations should start with the initial consultation. The law applies to everyone; do not make promises that you cannot keep. Being a zealous advocate does not preclude you from telling a client that the facts of the case and the applicable law do not support the position he or she wants to take. An unhappy client will be less likely to pay the bill and refer other clients to you. Make sure the client has realistic goals. For example, settlement is unlikely if a client wants 100% of the assets.

Know all the information in the file. Know the parties' income, what the assets are and the value of those assets, the timesharing problems and any issues with regard to the assets. Come up with calculations in advance; if it is a child support guidelines case, prepare the guidelines worksheet. Brainstorm with the client and other experts in advance. Have the client participate so that the client has ownership of the results. Make sure that all discovery is completed or enough discovery is completed in advance of settlement discussions. Prepare a cogent presentation of the case. Make sure that you know the facts inside and out. A client will not feel very confident if, during the discussions, you ask her when she and her husband were married, how old their children are, or what she earned last year. Knowing the facts will assist in exuding confidence to your client, as well as your adversary and the other spouse. Further, if it is clear to the other party that you know the facts of the case, s/he may be more than willing to make concessions in your client's favor. Be prepared ' not only for the meeting, but during any call with the client, adversary or court.

It may be helpful to exchange proposals with the adversary in advance, but that is frequently not necessary. Think about the case in advance of the meeting. Think about contingencies and options.

During the Meeting

When the meeting takes place, it is very important to listen to everyone. It is best to be quiet during the beginning of the meeting and let the parties explain their positions so you can take these positions into consideration and then incorporate the information into the outcome. It is often difficult to be quiet during a meeting and listen. Failure to listen will prevent you from seeing what the other side really wants, and you may miss points to which they have already conceded. Read between the lines.

Figure out what issues the other side needs to settle. See if their “asks” are something you can deliver. It will reduce tensions and acrimony if they get what they want. Consider:

• Is the other party focused on something that is a minor issue in your opinion and your client's opinion?
• Is there any way to satisfy the adversary's hot-button issue and obtain something more valuable in return?
• Is the other party still focused on revenge, retribution, disappointment or another emotional burden?
• Is it better to have a mediator present to give the other party a realistic perspective on potential outcome because their lawyer has not been successful or is unwilling to do so?

Bring whatever experts will be helpful to the resolution of the case and let the other side know. A better result is achieved when all of the individuals involved in the case are “all in the same boat together.” A team approach is created; everyone has ownership of the results and is responsible for them. Later on, part of the team cannot then take the position that they were not in agreement with what was being discussed. This approach is helpful because it provides support for the client. One member of the team cannot know everything. In most cases, more brains are better than one.

Know Your Adversary

Knowledge is power. Any little fact can help you get an advantage for your client. What can you expect from your adversary? What can you expect from his accountant? What can you do to help make progress at a meeting? Does your adversary like to chit-chat prior to conducting business? Will this be more productive? Are mornings or afternoons more productive? Does opposing counsel feel insecure if the meeting takes place outside of his/her office? Is the attorney or client in control? Does the attorney play his/her cards close to the vest? Is s/he competent in the field, or is s/he practicing outside of his/her comfort zone? Is s/he a bully who needs to be put in his/her place early? Does s/he need to impress the client, but is more reasonable outside the client's presence? Is what the accountant put together “junk science” and s/he know that s/he does not have a strong case? Is opposing counsel being paid or is s/he owed substantial fees? What is the adversary's reputation for settling cases?

On the rare occasion, it can be helpful to be creative and bring the unexpected guest. For example, during a recent case, a rabbi come to the meeting to help the parties work toward a resolution. On another occasion, a therapist attended the meeting.

Draft an agreement and send it to the adversary in advance. Sometimes this is helpful to set boundaries for the discussions of the case.

Alternative Solutions

On occasion, less can be more. Instead of meetings, a series of letters, calls or e-mails can be sufficient to address issues. At other times, meetings are helpful. If an initial approach is unsuccessful in resolving the case, try a new approach.

Mediation may be helpful. It will add another opinion to the mix. If there is a lot of drama, mediators can be very helpful in resolving the case. Give consideration to the skill set of the mediator. Is the mediator forceful, creative, understanding and nurturing, wise, able to facilitate a resolution?

Timing, Atmosphere and Approach

When you are scheduling a meeting, it is important to set aside sufficient time without a deadline. It may be a good idea to have food at the meeting. It is important to create a comfortable environment. Set aside extra conference rooms for caucusing. Often, it is a good idea to divide up and then regroup. Allow the parties and your adversary to take walks to discuss issues and return to the table.

Clients should feel free to speak up and address their concerns, get angry, and raise issues. Some clients need to feel that they have found their voice and that their concerns have been heard. If the client's position is articulated differently from yours, leave the room to have a private discussion.

It is a continuing struggle to stay on point with the position in the case. It is important to have some flexibility with regard to the approach for resolution but it is important that you and your client are clear as to what the goals are and what the plan is for resolution. There are always different ways to resolve an issue that are appropriate for your client. Be open to viewing problems from a different angle.

Should a meeting start out dealing with the most contentious issues first or should you initially deal with smaller issues to establish building blocks and demonstrate that matters can be settled?

And Finally '

There is no script to be followed in every case and no right or wrong answers. It may be that every case should be handled differently, based on the facts, the litigant or the attorneys. However, by following the top five hit list referenced in the beginning of this article, you will then be able to determine what needs to be done in each case to obtain the best possible result for your client.

The Accountant's Perspective

From Gerard Giannetti, CPA: The accountant/expert's role in matrimonial settlement can be very important. While the family lawyer is the quarterback, the accountant can sometimes be the best defensive or offensive coordinator on the team. The accountant participates in most ' if not all ' economic decisions in settling a matrimonial agreement. These include matters involving the tax implications of settling alimony/equitable distribution to those involving the complexities revolving around the spouses' business.

The greatest value that the accountant/expert lends to a case is to manage the client's financial expectations. Before any settlement conference, it is important to schedule an intensive meeting with the attorney to discuss all possible financial scenarios that may arise from a prospective settlement. This will assist the attorney in analyzing the overall landscape of the potential settlement. Sometimes it is necessary to think outside the box ' a settlement can transform during the process. Once you have an overall picture that is presented by the client, then the accountant/expert and the attorney can manage all aspects of the agreement to fit the basic blue print approved by the client.

Some matters are very straightforward, e.g., the simple distribution of assets and analysis of income, which involve a lifestyle analysis. Some cases, however, become more complicated when various businesses are involved, and valuations are needed.

The process is similar to putting together a puzzle. The more pieces there are, the harder it is. This is why it is very important that the attorney and the experts work closely together to come up with a solution. In the end, the client benefits from having a team that works cohesively together. Creating a settlement is more of an art than a science. Listing assets/income on paper helps give perspective to all involved; it creates a moveable piece of art on which each member of the team has the ability to comment and build. Frequently, clients achieve a better understanding of what a settlement will look like now and into the future when they see it in a visual format. This method goes a long way towards educating the client on the economic aspects of any settlement.

The Judge's Perspective

From Michael K. Diamond: More and more attorneys and litigants are turning to retired family court judges to mediate their matrimonial matters, both pre- and post-judgment. They do this for a very simple reason. The retired judge can give the parties, as well as their attorneys, the benefit of his/her experience on the bench. The judge looks at the case independently of one side or the other. The judge's suggestions or recommendations are based upon what can be realistically expected in the courtroom if the matter goes to trial.

During a mediation, the parties have the ability (and should be so informed) to speak freely, uninhibited by the rules of evidence, which would apply during a trial. The mediator cannot order anything, but can clearly make suggestions. At trial, the judge makes the final decision that will affect the parties' future. Mediation affords the parties the opportunity to make the final decision themselves, rather than put those decisions in the hands of a trial judge.

It is most important that at mediation, the parties have the opportunity to explain their positions, etc., and not leave it to their attorneys. The final decision should be that of the parties and not the court.

Lynne Strober , a member of this newsletter's Board of Editors, chairs the family law department at Mandelbaum Salsburg, P.C. Gerard Giannetti is the Founder and principal of Giannetti & Associates, LLC, a full-service forensic, litigation consulting and tax practice. Michael K. Diamond, retired as the Presiding Judge of the Family Division, Passaic County, New Jersey Superior Court, is now a Mediator/Arbitrator in Family matters at Mandelbaum Salsburg.