Saturday, May 5, 2007

When and How to Settle

Most family law cases (probably 90-95%) will settle before a judge rules on them. Given that fact, it makes sense to focus on finding the best way to get the best agreement possible. It also makes sense to start thinking about settlement at the beginning.

As Stephen Covey and others have suggested, I like to start with the end in mind. Although it is often difficult for people going through the emotional trauma of a divorce or other family law issue, identifying and then focusing on a person’s most important goals, needs and interests provides the best guidance for getting through the process in a way that minimizes damage and leads to the best possible outcomes permitted by law.

The path to resolution used in Collaborative cases is very effective and can often be used even in litigated cases ( just not as well).

  • First, determine the parties’ goals, need and interests (for both parties).
  • Second, discover and organize the facts in the case.
  • Third, brainstorm possible solutions and generate as many options as possible.
  • Fourth, evaluate the options.
  • Fifth, negotiate and reach an agreement.

It really helps to understand the other party’s motivations and needs. Spending time figuring out those things can pay off when negotiations are going on to settle a case.

Court hearings are rarely the best way to resolve issues. They are stressful for the parties, expensive, slow, and often result in arbitrary rulings that don’t solve the most important issues. Some attorneys adopt a strategy of wearing down the other party through expensive and stressful court hearings, discovery processes and threats. That approach is sometimes successful, in the sense that a party may wear out and give up, or they may run out of money. However, that doesn’t bring peace and it is often very destructive to relationships between parents who still have to raise a child.

Court hearings are sometimes used as an "easy way out". It takes less effort and creativity to raise a complaint or issue and then just turn it over to the judge for a ruling.

Sometimes court hearings are unavoidable, especially if the other party is unreasonable or uncooperative.

In most cases, persistence and creativity will lead to excellent settlements, if the parties start with the end in mind.