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Every family law situation involves some type of negotiation and attempt to reach an amicable resolution of all the parties’ issues. When negotiations succeed, a settlement becomes a more formal agreement or consent order. When negotiations stall or fail, both parties can still find value and useful information in the process.
While negotiating, parties may gain a clearer understanding of the underlying issues and interests at stake. No matter how detached and analytical we may try to be, negotiating involves emotions. Hearing openly expressing concerns and grievances helps your attorney better understand you and the other party, including priorities and goals. All negotiations can highlight the most critical points of contention and what matters most to each party. In the wake of that opportunity, assuming negotiations break down amicably, it can set the groundwork for future cooperation and a willingness to resolve issues constructively.
Alternative scenarios arise during negotiation, especially during mediation with a skilled facilitator. The chance to consider different solutions we might not have explored otherwise is very valuable. When the standard approaches do not work, parties may become more open to unconventional or innovative options. Sometimes, the discussion process opens our eyes and changes our point of view about BATNA (our Best Alternative to a Negotiated Settlement) and WATNA (the Worst Alternative to a Negotiated Settlement). Understanding these parameters, and constantly assessing who has how much leverage in settlement, requires acknowledging the consequences of not reaching a settlement.
We learn a lot during negotiations, sometimes by listening much more than we talk, or by pursuing detailed settlement offers instead of making offers. The dynamics of mediation or settlement conferences allow both sides to present their arguments, evidence and positions. Then it becomes apparent where the strengths and weaknesses lie in each party's case. We learn where the other side believes they are likely to prevail in litigation, what they are willing to compromise or give up, what they think (sometimes erroneously) is important to our client. We may obtain new information, or proof of claims, that we did not previously have, or discover that there has been posturing about a claim that the other side really cannot sustain. This understanding helps us to assess the risks and potential outcomes if the matter proceeds to court or arbitration.
The New Jersey family law system requires full disclosure of proof of claims before a trial. In other words, there should not be any big surprises in a courtroom. However, the way an attorney presents proof of your claims can be tested in negotiations. Preparing for mediation or a settlement conference is just as important as preparing your arguments and evidence for presentation and good defense at trial. Think of negotiation like a vital preview. If the other party, attorney or mediator does not seem to understand the point being made, then the presentation can be improved, expanded or revised. Proof may be legitimately challenged too, giving you and your attorney the chance to gather more evidence, like documents or testimony, to support your position before trial.
Over time, families’ needs change. A judge makes decisions based only upon the evidence presented during designated trial days. Negotiations, on the other hand, can be dynamic, with priorities and plans changing based on new information or changing circumstances. Even when on the verge of a full settlement, practical spouses and parents can adapt plans to fit the family’s needs in a way that the Judge cannot.
The most obvious reason why we encourage clients to negotiate, even if settlement seems unlikely, is that even failed negotiations can be used strategically in legal proceedings. Exploring settlement can save time and money. If a resolution is impossible at the time, we recommend that we recognize it and explore other options rather than continuing fruitless negotiations indefinitely. If a dispute escalates to litigation, the fact that parties attempted to negotiate in good faith could be used to demonstrate their commitment to finding a resolution outside of court.
The family law attorneys at Cohn Lifland mediate, arbitrate and negotiate as the neutral middle point (mediator and arbitrator) constantly. When it is your turn to discuss settlement, prepare to learn and benefit from the process with us.