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Decades Of Litigation Experience

Settlement Negotiations: A Bending Branch May Eventually Break

by | Dec 14, 2021 | Firm News |

By: Michele Olsen, M.A., M.S.W., Esq.

During a divorce action, there is nothing more incredibly hopeful than when both parties are willing to sit down and discuss a resolution to the action. This can occur at the beginning, middle or towards the end of the action, but whenever it does, one thing is certain…….one or both sides believe that an end is in sight. Sometimes though, an olive branch has thorns.

There are numerous reasons that a party may enter into disingenuous settlement negotiations, some of which may not be readily apparent. Common motives in this regard may include, but not be limited to; prolonging the action to cause the other party increased legal expense and/or aggravation and inconvenience or to continue the litigation as a means to remain in close proximity to the other party. Whatever the basis, your attorney should be able to discern if the negotiations are genuine or merely a ruse to suit a frivolous agenda.

Other times, negotiations do not proceed forward due to a party’s failure to honor terms previously agreed to in prior discussions, and sometimes even after drafts of stipulations have been exchanged between the attorneys. Often times, this occurs when a party starts second guessing him/herself (or his or her attorney); or when they speak to friends and compare divorce outcomes; or when the end of the action and starting a whole new life appears very real and imminent. While it is always a party’s right to change their mind about any stipulated term or course in their divorce action, it is critical to realize that doing so may not necessarily be in that party’s best interest. As a general rule, and prior to agreeing to terms or even putting proposed terms into a written agreement, there have been numerous discussions between the attorneys and between each attorney and his/her respective client. Thereafter, the presumption is that the parties have agreed upon the significant terms and are “tweaking” the agreement for finalization and execution. Upon reaching this juncture, it is particularly dangerous to demand changes to significant terms that have previously been agreed to.

In order to avoid this potentially devastating situation, keep in mind the following:

  1. Your attorney is on your side and is in the best position to advise you whether your new demands are reasonable.
  2. Will you prevail in connection with your new demand if the case goes to trial?
  3. Will you spend more money pursuing the new claim in court than the claim is actually worth?
  4. Are your new demands based on any new disclosures or information that was previously unknown? If so, this may actually be a valid basis to re-negotiate.
  5. Is the new demand worth the time, money, and stress of a trial?

Sometimes, the other party will accept last minute demands that are different from terms previously agreed to, but other times, all the negotiations fall apart and the case proceeds to litigation: a branch only bends so much before it breaks.