Settlement Offers

Before hiring an attorney, you should commit him or her to at least three settlement conferences with your spouse’s attorney prior to the settlement conference with the judge. The first should be shortly after you retain your attorney and before discovery has commenced. Your attorney may think it wise not to negotiate on issues that need investigating by way of discovery, but usually some issues can be resolved without any discovery. At this first settlement conference, the attorneys can set up a structure for future settlement of the case. They can agree to use independent neutral experts appointed by the court (more on this later); to provide – by a specified date – tax returns, business records, and bank statements without expensive formal discovery; and to send certain issues to arbitration. Although all issues cannot be settled, a message is conveyed to the other side that you are serious about an early settlement.

    The second settlement conference should take place after the completion of a minimum amount of discovery and consultation with experts on the value of various properties. At this point, your attorney should put a serious offer on the table on every issue and demand that, if the offer is not acceptable to your spouse, he or she must indicate what is acceptable.

    A third settlement conference should come when discovery is complete. If you have not already done so, you should now make your best offer as to every remaining issue, holding nothing back to await a conference with the judge.

    When you hire an attorney, you should make it clear that the settlement conferences you want scheduled should be face-to-face meetings between attorneys, with you and your spouse nearby, available to comment on proposals. In some cases, it may be advisable to have the clients present in the room when the negotiations are under way. (Obviously both should attend or neither should attend.)

    Settlement offers in letters are not nearly as effective. A settlement letter is usually the last correspondence to which busy attorneys respond, if they respond at all. Settlements are reached in face-to-face negotiations during which several counteroffers are made, and a perceived gain on one issue is balanced by a perceived loss on another. When letters are exchanged, neither such balancing of interests nor the making of confidentiality agreements that facilitate movement on an issue is possible. Read more about family issues at  Fleeting…