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Decades Of Litigation Experience

Divorce and Settlement Conferences: Do’s and Dont’

| Mar 19, 2021 | Family Law |

By: Michele Olsen, Esq., MA, MSW

Many who contemplate divorce, or have already commenced a divorce action, desperately hope that the action will be resolved with as little financial and/or emotional pain as possible. Others, whose agenda is more malicious, seek to prolong hostile litigation in order to punish the other party for some perceived offense, or merely because the other party does not want to get divorced. In either instance, a divorce is only resolved in two ways (other than a discontinuance): a trial or the execution of a Stipulation of Settlement.

A Stipulation of Settlement is a comprehensive writing setting forth all the terms agreed to by the parties in connection with issues, including but not limited to: the distribution of assets, the allocation of liabilities, child custody and parenting time, and the payment of child support, spousal maintenance and counsel fees. The agreed upon terms are usually the result of extensive negotiations, which can be effectuated through written and/or verbal communications between the attorneys and/or the result of one or more settlement conferences (commonly known as four-way conferences).

Settlement conferences can be conducted at any time before the litigation or after court intervention has been sought. It can be conducted at any stage during the litigation. In some cases, even after a trial has begun, and the parties then decide they want to settle without further litigation, a judge will generally provide the parties with a brief period of time to do so lest they be directed to continue with the trial. For obvious reasons, it is always better to resolve a divorce by Stipulation, where the parties can chart their own course, and avoid the financial and emotional expense of litigation. Thus, barring any need to seek immediate relief from the court, a settlement conference should be scheduled sooner rather than later.

An initial settlement conference is generally participated in with high hopes of a total resolution. This generally does not occur at the first meeting. At an initial meeting, there may be final resolutions on some issues, temporary/interim agreements on others, or no resolutions at all. The meeting may last five minutes or five hours. No matter how long or short the meeting is, important information will be discernible in connection with a party’s agenda and how you and your attorney will need to proceed. Thus, all hope is not lost, nor was the meeting time wasted. There is always something to be learned, if not settled during these conferences. The first component of a potentially successful conference is the desire of BOTH parties to participate. Even in some cases where one party does not want to or feels he/she cannot be in the same room with the other, a settlement conference can still ensue. In these cases, the attorneys alone can be face to face, and the parties can be available by telephone or, in some instances, in separate rooms in the building. This situation, of course, results in a longer and more expensive conference, as the attorneys will need to go back and forth between each other and his/her client. Further, whilst engaging in such back and forth, important momentum may be lost. Thus, the most effective way to participate in a conference is when all parties are present.

If a party feels uncomfortable or threatened during such a meeting, he/she need only to inform his/her attorney and the meeting will be ended. Sometimes, a party will participate in a settlement conference merely to have his or her “story heard.” This is not the right time or place to do so. Other times, a party will participate merely to intimidate the other party. This agenda is generally evident immediately, and will lead to the meeting’s end. Even under the best of circumstances, where both sides at least wish to attempt a settlement conference, there are several “dos and don’ts” which can make or break a final resolution. In other words, good intentions are critical, but not enough.

The following are some suggestions which will facilitate a productive meeting, and increase one’s chance of success in connection with a settlement conference:

DO provide your attorney with a complete list of your assets, liabilities and any
other relevant financial information;

DO provide your attorney with your “wish list” and those issues that you prioritize
over others;

DO make sure that you have a clear understanding from your attorney regarding your rights and obligations;

DO make sure you have completed and provided your attorney with any requested
documents to exchange with the other side (ie – a Statement of Net Worth);

DO schedule some time to meet with your attorney right before the conference to
go over any loose ends and to discuss any strategies;

DO allot a sufficient amount of time for the conference. If you have children,
make sure your have appropriate childcare set up in case the meeting is prolonged;

DO have an awareness of your tone and body language during the meeting. You
would be surprised at the effect these things can have on negotiations (ie – crossed arms convey that one is closed off, etc);

DO allow your attorney to do most if not all of the talking at the conference. If
your input is needed, your attorney will ask you for it. If you have a question for
your attorney during the conference, you can request to speak to him/her in
another room;

DO ask to take a break if necessary.

DO NOT act in an antagonistic manner in any way towards your spouse, your
attorney or opposing counsel during the meeting. The purpose of the conference
is to calmly and rationally discuss a resolution. Provocation of any kind is
contrary to the purpose of the meeting.

DO NOT make misrepresentations;

DO NOT interrupt when another is speaking. You may miss important
information;

DO NOT become disheartened.

The bottom line is that a successful settlement conference(s) is contingent upon both parties’ desire to avoid litigation, and to be flexible, reasonable and realistic in the negotiations.