By Attorney Gregg Herman
June 1, 2014
Sometimes in a case, all the normal routes to settlement have failed. Yes, you could litigate the case, but a settlement is greatly preferable. Frequently, the client lacks the resources to pay for a trial. Some judges simply won’t hear a divorce case while others will hear a trial, but make the experience highly unpleasant. Some clients are terrified of court . Maybe they watched too many lawyer TV shows, or saw a few real trials. In any event, here are some ideas —some tried and tested and some not — which might break the impasse when all else has failed.
The oldest settlement trick in the book was devised by the greatest mediator in the history of the world: A mother. How do you divide a cookie so each child is satisifed? Easy: One cuts, the other chooses.
Clearly, this is not a good idea when it comes to custody, but it can work in cases where there is property – like personalty – which both parties want. Unless there is something which your client must have (the grandfather clock which has been in his family for seven generations), the “cookie cutter” technique can resolve an issue where neither party is willing to make any movement.
Simply speaking, one party draws up two lists. The other chooses. Giving the other side the option keeps the list maker honest. This can work not only with personal property, but sometimes with cars, brokerage accounts or other assets where either side could own them.
I even used this process once in a case where the parties owned six businesses, which they were each capable of running. My client divided the businesses into two lists of three business each and let the other side choose either list. It settled a difficult, contentious case in short order. Of course, it is not always possible to equally divide businesses — or even personal property — into two lists, but sometimes just the exercise of preparing the lists can be conducive to settlement as it leads the parties to consider the comparative value of the property and to make choices.
A “buy-sell” offer can resolve an issue where an asset which can be awarded to either party with no adverse circumstances. An example might be a car which one side is substantially under- or overvaluing. Is such a case, the other party might want to propose a value for which he would either accept the vehicle – have it awarded to the other side at the same price.
This technique requires four prerequisites:
The theory behind this concept is that if both lawyers and their clients knew what the judge would do without a full blown trial, they could simply tell their clients who could then avoid the costs of a trial and just agree to the inevitable. The clients consent to having the lawyers present the issue informally to the judge. The judge must be a willing participant — some judges are and some are not — which requires assuring the judge that if the effort fails, neither side will ask the judge to recuse himself or herself.
The lawyers then informally argue the case before the judge and ask for his or her opinion. If the judge is willing to cooperate, he or she will tell the lawyers what the ruling would likely be under those facts. The lawyers then tell their clients (if the conference is held in chambers) and the clients stipulate to the eventual order. In cases where the facts are not in dispute and the ruling is discretionary, the savings can be significant.
Some judges are uncomfortable with this approach as they are being asked to pre-judge the case and therefore, may have to disqualify him or herself if the process fails. The potential for disqualification, however, is easily overcome. By the parties asking the court for input, they are waiving the right to ask for disqualification if dissatisfied with the proposed order. Some courts will require this waiver on the record.
The danger in this technique rests in the waiver of any appellate remedies. Judges, of course, are subject to the same personal biases as everyone else, so if the particular judge needs to be constrained by the fear of a potential appeal, this is not a good technique for that case.
Where positional negotiation is moving at a glacial rate, a joint recommendation by the attorneys may be a valuable settlement technique. As with the “non-trial trial,” certain prerequisites are necessary for this technique to be successful, such as:
The concept works as follows: Each attorney privately ascertains from his or her client the range of acceptable settlements. The two lawyers meet, without clients, and discuss the remaining gap in positions. The lawyers agree on a final settlement number which is between the last two positions of the parties, although not necessarily half way between. Each lawyer agrees to recommend the compromise to his or client, understanding that if the client refuses to accept the joint recommendation, negotiations are over.
Clearly, the key to successfully making a joint recommendation is for each lawyer to know what settlement is acceptable to the client and not let the client change his or her mind later. Knowing that the joint recommendation is just that — a recommendation — neither lawyer prejudices himself or herself if the client changes his or her mind.
As with the television game show, it is a good idea to have a few friends on your contact list who you can call upon in a pinch. Ideally, the friend will be one who is universally respected so the other lawyer will respect his or her judgment as well. The friend must be of the generous variety with his or her time. If such a friend exists, conference calling him or her with the opposing counsel might get past a log jam, either by having the friend suggest a new approach, or expressing an independent opinion which causes one side — or both sides — to compromise their position. Such friends are rare, but they are out there, frequently willing to help without cost (although at least a thank you note, if not a small gift, would be welcome).
Here is an idea which will cause you to wonder if I’m living in the real world: See if you can convince your client at the outset of a case to do something nice for the other side. This works best if it would be totally unexpected by the other side. It would be easier to convince your client to do it if it is something which would cost your client little or nothing and is something which will happen eventually anyway.
One example: The husband moves out of the house, taking with him only his personal property. If you have a client who is not bitter and wants to resolve the case without rancor, suggest that rather than waiting for the case to be over, she duplicates all family photos and videos and gives them, unrequested, to her husband. It will cost her little to do so, she will have to do so eventually anyway, and it may create an atmosphere for settlement.
There are innumerable examples where such efforts may bear fruit. The concept is to dissipate (or at least diminish) the fear that your client is out for blood. Of course, if your client is out for blood, don’t even think of it! But with the right client, in the right case, such a technique can have far reaching benefits.
The above examples are by no means exclusive. I’ve heard of other creative settlement ideas such as two lawyers breaking an impasse over $500 by each agreeing to compromise their fees by $250. One lawyer even told me that he made the final concession in a case once in exchange for a recipe for his favorite dinner (presumably with his client’s permission!).
There are many, many other examples and divorce lawyers should not be afraid to experiment and try to be creative. As long as the client is informed of the technique and it does not violate any ethical precept – go for it!
This article originally appeared in the Summer 2014 Volume 28 Edition of the American Journal of Family Law.