"There can be no settlement of a great cause without discussion, and people will not discuss a cause until their attention is drawn to it." - William Jennings Bryan
A judge whom I have held in high regard for many years recently gave me one of the greatest compliments I have ever received. He said to an opposing party, "I've known Counsel for many years and I can say that she is one of the most reasonable attorneys I have ever met. I'm certain if you go out into that hallway and have a discussion with her, you will find her reasonable too." Some litigators wouldn't think that's much of a compliment...after all, litigators spend countless hours in trial after settlement negotiations have failed. We litigators pride ourselves on the great ability to argue a case, persuade a jury, persuade a judge. But there is a very different element prior to the courtroom drama that requires a bit of patience, reasonableness, and a requirement to leave your ego at the door. Settlement is not the "easy" way out...it requires just as much preparation, forethought, and patience. After all, it may be the best way out.
Here's my little disclaimer: not every case can be settled and not every case should be settled. But many many cases should and are.
I hear so often, "I just want this done quickly" "I just want this to be over." That can happen, but there is some legwork required first.
1. Get Informed. Before you should step foot in a mediation, you should first be informed. You need to know your rights, your entitlements, what the opposing party has, what the opposing party wants. Plan, make a list of your goals, and meet with a lawyer.
2. Spend Money Up Front. You can't plug your scenario into Google and expect an answer that fits your life, your goals, your desires. You need to consult with an attorney. Not only do you need to know what your rights are, but you need to know strategies for how to get there. It's far better to spend the money up front consulting with an attorney, preparing for mediation, and putting forth the effort in mediation. Sure it's costly, but if you end up saving tens of thousands of dollars by not having years of drawn out litigation and trials, isn't that a worthy return on investment?
3. Ditch your ego and your pride. You aren't walking into mediation running the show. The other side isn't going to do everything you want or ask. I shake my head when a client says "I'm just going to go in there and tell them exactly what I want. And they're going to do it because I said so. If they don't give me what I want then I'll see them in court." Well... you're not settling that case that you want to be done with so quickly there are ya? C'mon. That's obviously not going to work. Chances are you are in this position of divorce because of that attitude...your spouse didn't quite do everything the way you wanted when you were married, what makes you think he/she is going to do it when you're separated? Relax, slow down, drop the ego, let go of the past and focus on an agreement that allows everyone to move forward.
4. Make concessions. A settlement is not possible without both parties making some concessions. You have to give a little. Your spouse has to give a little. It's not possible without it. Prepare with your attorney in advance. Know what you are willing to concede on. Know how much wiggle room you have before sitting at that mediation table. AND DON'T LOOK BACK. Focus on an agreement that moves your life forward as best as possible. No person walks out of a mediation fully satisfied with the result, because they have had to make concessions; however, they are concessions they can live with or else they would not have made them and signed the agreement. That's much better than a trial where you face walking out of the courtroom with a decision from a judge telling you how you are going to live the rest of your life.
I have never heard a judge criticize a client for settling a case. In fact, it's quite the opposite. Clients are applauded by judges regularly for settling their cases. "I applaud you for working so hard to settle your case. The last thing you want is a stranger in a robe sitting up here telling you how you are going to live your lives." It's true. Who has the best vantage point... you or a stranger in a black robe meeting you for the first time?