The title of this blog – for our younger readers – comes from the Kenny Roger’s song, “The Gambler” which feels appropriate when discussing a family law case. Parties gamble on the strength of their position, the strength of their legal theories and evidence, and the likelihood they can convince a judge to accept their story. There is always the other side to that gamble; namely the other party. They are also gambling. Family law is not always a zero-sum game, but there are many issues that are either a “yes” or a “no.” So when you litigate a case, you may spend a great deal of time and money only to come out on the other end empty handed.
Good gamblers know to always hedge their bet. Hedging is the act of protecting yourself from loss by reducing the risk. Hedging a bet comes at a cost though. You may reduce your risk of loss, but you also reduce your recovery. In family law, you reduce risk by negotiating a settlement. There are many ways parties can reach a settlement of their case, but the following three scenarios represent the most common avenues.
4 Way Settlement Meeting:
This is by far the least formal way of settling a case. There are no briefs or pleadings exchanged (though it is not uncommon for one or both sides to have sent a settlement proposal prior to the meeting.) Finally, there is no unbiased third party involved in assisting the litigation. It is just the two parties and their respective attorneys; hence “4 Way.”
Because of the lack of formality, 4 ways are also the least expensive avenue for settling a case. Without significant preparation or pleadings, basically the parties are paying their attorneys to sit down to try and hammer out a deal.
Due to the informality of the 4 way, the meetings are most appropriate in cases where the assets in questions are not substantial or the parties are in agreement on many of the issues already. A 4 Way is also a good choice for more complex cases where a lot of ground work and reports have already been completed. Finally, the 4 Way meeting can help resolve some minor issues or define the major issues with particularity before going to a more formal settlement conference.
Mandatory Settlement Conference:
Unless waived, all family law cases must participate in a Mandatory Settlement Conference prior to being set for trial. Mandatory Settlement Conferences are provided by the court at no cost to the litigants. The Court provides a Judge Pro Tem (Temporary Judge – an experienced family law attorney who donates their time) to assist the parties in reaching a settlement of their case.
Each party is required to prepare and submit a settlement conference brief to the Judge Pro Tem prior to the meeting. The Briefs provide factual and background information along with each party’s position on the issues that need to be resolved.
The settlement conference takes place at the court house and last approximately 3 hours. Settlement conferences are most appropriate for parties with limited funds available to litigate their case, parties with non-complex issues or a few big issues that are ripe for settlement, or cases where there has been no movement by either side with respect to their position. Having an experienced third party who is not involved in the case is very helpful to get a feel for what a Judge (who is just an attorney in a fancy robe) might do in your case.
Private mediation is very much like a settlement conference. Briefs are exchanged and the parties meet with an experienced family law professional to attempt to resolve their case. That is where the similarities end.
The differences are many. First, with respect to time, mediation is paid for hourly, so the parties have as much time as they can afford; though generally one day (8-9 hours) is standard. Instead of a family law attorney, mediators are usually retired family law judges who do nothing other than mediation. Their experience on the bench means their assumptions about what a Judge will do in any particular case are very accurate. Also, since they mediate cases full time, they understand what it takes to get a case settled.
Mediation is for cases with a lot of issues, case that are highly contested, cases with significant assets or complex issues. I also recommend mediation for any case that looks like it will go to trial. Going to trial is the most expensive action you can take in a family law case, so if you can avoid trial by going to mediation it is money well spent.
Deciding whether your case is right for settlement requires the assistance of an experienced family law attorney. Also, deciding what type of settlement meeting is right for you will depend on what the issues are in your case. That is why you should consult with an experienced family law attorney so you can understand your best course of action.
Feel free to contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding settling your case. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.