Don't Confuse Settlement with Litigation

I see many clients who want to settle a dispute with their ex. Unfortunately, the spirit of settlement often gets forgotten or confused with the feeling of wanting to “make them concede.” People often switch suddenly and seemingly interchangeably back and forth between settlement and litigation mode. Settlement mode means that you jockey for a good compromise – you stay firm on your deal-breaker issues but both parties give and take on lesser issues to accomplish a mutual settlement out of court. Even when you make some concessions in this context, the overall result is often better because the parties themselves control it instead of a third party like a judge. Litigation mode is when you intend to go to court. In litigation mode, you engage in discussions with the opposing party or attorney to bolster your arguments, puff up your case to throw off the other side or cause them to reconsider any prior settlement offers. In litigation mode you go full throttle to argue for the best possible outcome to the judge. These are very different modes when often get confused by clients. Here are some tips to maximize your possibility of settling with your ex early so you can save yourself the emotional and financial toll of litigation:

  1. Don’t serve your ex on Valentine’s Day, their birthday, your anniversary, or any other special day. This just rubs salt in the wound and – no matter how good your settlement offer is for them – will make them less likely to even consider your proposal. It may feel good for you at the time to dig that knife just a little bit, but ultimately you will not achieve your long term goal of settlement.
  2. Put yourself in their shoes. Think about your reaction and the time you would need to process any court documents or settlement proposal if you received such out of the blue. Give your ex the same courtesies you would want if you were in their shoes.
  3. Don’t badger them. If you have arranged to give your ex divorce or modification documents or a settlement proposal, do not hound them to sign the proposal right on the spot. They need time to review, think about the proposal, speak to an attorney, or call your attorney to discuss the terms. Do not demand that they give you an answer right now because that tactic will certainly get you an answer you do not want. You can prod them or give them a deadline but do so gently.
  4. Lastly, don’t go against your attorney’s advice. If you are sending a proposal don’t make other agreements with your ex verbally contrary to the proposal but tell your attorney you want to stick to the proposal. This is confusing to everyone and will ultimately make your ex not trust you in negotiations and your attorney’s bill will increase because of the time spent truly trying to figure out what you want. Be clear with your attorney about what your goals are, what you will yield on, and what you will not. Trust the attorney’s direction and listen to their advice.

We would be happy to help you negotiate your own settlement on a do-it-yourself-with-help basis or represent you fully in settlement negotiations or litigation. Please give us a call if you’re struggling with either of these modes.

Categories: