Settlement is almost always the most efficient and satisfactory way to resolve a case. That being said, the best way to prepare to settle is by preparing to try the case. The same facts and legal analysis play roles in both processes. The main difference is that trial is almost entirely adversarial. Settlement negotiations (while also adversarial) leave room for creative and mutually-beneficial compromise.
I suggest taking the following 10 CONCRETE STEPS to make settlement both likely and advantageous.
1. Keep as much as possible on the table. Don’t settle piecemeal. More moving pieces mean more possibility to create something that benefits everyone or, at least, something mutully acceptable to both parties.
2. Think creatively. Often BOTH parties may want something they didn’t think of initially. Creativity helps everyone and this helps you get the results you need.
3. Endeavor toward a professional working relationship with the other party. If petty fighting and revenge tactics helped my clients get what they want and neeed, this blog would be teaching those tactics. They don’t help; they hamper.
4. Prepare your sworn financial statements, supporting schedules, mandatory disclosures, and proposed separation agreement as quickly and accurately as possible. If you have children, attend your parenting class and prepare a parenting plan as well. You can’t get divorced in Colorado without this critical information.
5. Separate emotional decisions from economic decisions. Be prepared to make sound economic decisions that are not based on sentimentality. For example, decide whether to sell your home based on a cost benefit analysis and not whether the kids or you love the neighborhood or can’t imagine moving. In this economy, this is one of the toughest lessons to learn.
6. Work cooperatively with your attorney. You would not want to come out of anesthesia to tell your sugeon how to remove your appendix. Same thing with attorneys: we know what we are doing. At some point, you are going to have to let go and trust us. You pick the goals; we know the strategies to achieve them.
7. Respect the court, the mediator, the legal process, the attorneys and, hard as it may seem, the other party. Rather than trying to dictate how these processes and people should function in your opinion, pay attention to how they actually do work. Use this knowledge to negotiate the process.
8. Make a rational decision as to whether you want or need your attorney at the mediation. You have options ranging from going it alone to having the attorney on standby on telephone to having the attorney at your side at the mediation. Work with your attorney to assess your skillset and the risks at stake. This is one area where you cannot afford to make the wrong choice.
9. Pay for a great mediator. This is another situation where you cannot afford to cut corners. A poor mediator is a waste of money because they won’t be able to close the deal. Your attorney should be able to help you choose a mediator who is the right fit to get you an advantageous settlement.
10. Be prepared to compromise if necessary to settle. Know your goals but also know your bottom line. With parenting issues, you will have chances to see thing play out and revisit. With economic decisions, this is not a situation of making you both “happy” but rather making a reasonable compromise. At some point, fighting for “knives, spoons and forks” is not worth your time or money. Unless it is a critical “bottom line” issue, you need to be prepared to let it go.