Collaborative Negotiations and Settlement Versus Trials
You need respect, control and to be heard
Your Collaborative case will involve settlement negotiations. You will be respected by everyone in those negotiations to the best of our ability. In some negotiations your attorney may be discussing the law as it applies to you in front of the other party provided it is not against to your interests to do so. Your attorney may also discuss your case with the other professionals when you are not present in order to help narrow the issues and guide the case to a resolution. People sometimes do not like negotiations as it appears to be sharing tactical information between the attorneys. Attorneys are seeking reciprocal insight into the reasons for their positions or obstacles to the settlement offers being discussed. Sometimes an insignificant issue to one party is significant to the other and it is keeping the parties from an agreement. Seeking disclosure of this kind of insight in a collaborative fashion, or giving the same, can bring the case to settlement. Please let us know at any point if you do not consent to this type of negotiations. Within the bounds of ethical and reasonable behavior, you have control over how and when we present your position in negotiations, if you want that control. In collaborative cases everyone is agreeing to voluntarily share all relevant information in a useful manner. Some information may be difficult, and coaches are used to make the emotional points easier to tolerate. Neutral experts are used so negotiations are grounded in facts so that we decide what is best for children based upon what child development training indicates is best for children. We do not simply negotiate based upon emotions alone, the way one might over the kitchen table.
Your case is yours and it is not an attorney’s case to settle or decide for you. You are always in charge of strategy if you want to be. Years of experience has revealed that sometimes the best solution is discovered by asking the CLIENT directly what they want most out of the whole array of options and trading less desired things to get that desired thing, with saving the cost of going to trial being one of those things we trade for. You have the last word on accepting an offer or making one. Offers once they are accepted become binding contracts and impossible to avoid later. The offer may also be withdrawn and never available to accept again. A common tactic in negotiations is to rush the other side or to make an offer that expires on a deadline. These are pressures that you will feel, and pressure cannot be avoided. Your counsel cannot make the decision for you, but your attorney can give you the benefit of experience with other cases and published court opinions, and counsel’s interpretation of the law. You and your lawyer must formulate tactics and strategy. Your life experience as well as your attorney’s life experience is what we have to work with to formulate those plans, knowing the other side must strategize likewise. It is our intention that the other party will have heard your issues and will know the basis of your position long before any trial. In this way we usually can avoid most trials. To the best of our ability you will also learn as much as possible about why we must be in court, if you do not already know all you want to know. Your voice will be heard.
Trials are even more intense than the settlement processes. The successful collaborative process results in a complete signed Stipulated Judgment and Decree. That document is submitted to the court, reviewed by a judicial officer and signed by him or her. It then becomes the Decree of the Family Court with the same force and effect as a case that went through a trial. It will be respected and followed in every state in the nation and in other countries worldwide. People who do the fill in the blank forms often take those to court for a default hearing and discover the court will not grant their decree as requested. The Judicial officer, who may be a Judge or Family Court Referee, may see issues that are unresolved or resolved incorrectly and reject the proposed Decree. This does not happen in Collaborative cases because the attorneys have anticipated what the court will be concerned over and provided for those issues. If for some reason it were to happen in a collaborative matter the revision would most likely be easily completed by the attorneys.
If no collaborative agreement is reached the parties are free to leave the collaborative process, hire other attorneys and take the case to trial. The evidence gathered in the collaborative case is there for use in the traditional case. The trial attorneys must develop it for their use at trial. Every hour of trial time involves many hours of attorney and support staff preparation. Even the most obvious facts must be put into the format of proof. Proof is beyond just knowing something generally; It is more comparable to the situation where you would say only a fool would say it is not true after seeing the proof. If any reasonable person could deny what you are saying somehow, or if someone is denying what you are saying, you may not have proven what you are saying. This is especially true if the standard of proof required is the highest, which in civil cases is ‘clear and convincing.” It is nearly as difficult if the lower standard of proof applies which is the “preponderance of the evidence”, so you can see that trials can be very expensive. In Family Court there is only one Judge or Referee deciding the case. There is no jury. If that judicial officer gets a bad opinion of you or your counsel in the operation of this case, it becomes even more costly and difficult. In a trial what is considered bad evidence may be excluded, even if that offered evidence is what you have to say about an issue, or what you think everyone knows about a matter. We encourage settlement of any case which can settle in a range close to the predictable result, as all the facts become known.