I recently read an article that indicated over 90% of divorces in California settle prior to going to trial. Most Courts in California have a requirement that prior to proceeding with a trial that the parties participate in a Mandatory Settlement Conference to attempt to settle the matter prior to taking up the Court’s time and resources with a trial. Over the years I have participated in a number of settlement conferences, both as the settlement officer, and an advocate for one of the spouse’s and most of these conferences resulted in a complete settlement of the case. In this week’s blog we explore how we can efficiently get families to the settlement table in a position to finally get their matter resolved so they can move on with life. A big difference between mediating a divorce and litigating a divorce is the time it takes to get to the settlement table and the condition of each spouse by the time they arrive at the table.
Mediation and the Settlement Table. If you were to venture into my office space you would find that I have one room where I have my desk and another larger room that holds my conference table. Before I shifted my practice to mediation, I would meet in the room that has my desk and I would sit on one side of the desk, and my divorcing client would sit on the other side. Now that I have moved my practice to exclusively mediation, I spend all my time in the other room that holds the conference table. This desk versus table difference with my work is somewhat symbolic of the difference between the litigated and the mediated divorce. In litigation, each spouse spends a great deal of time at the other side of their lawyer’s desk before ever getting to the place of sitting down at the same table as their spouse. In mediation, spouses are sitting down at the same table from the start. In mediation, I am going to distinguish the function of the table we are all sitting at. In the beginning it is just a conference table and not the settlement table. We must do some work first to ready the couple to move to the settlement phase.
From Conference Table to Settlement Table. While some spouses might be eager to get to the business of settling their case, there are two big steps involved with getting to a place to be properly prepared for settlement. The first task is making sure both spouses have a clear understanding of their rights and responsibilities. They each need to know what they are reasonably entitled to, what their responsibilities are to one another, and what business needs to be taken care of. The second task is making sure they are on equal footing with a thorough and complete listing of assets, debts, income and expenses and a full exchange of all supporting documents. This is not only required by the Court, but is essential so that the couple understands the extent of their property and understands their income situation and finances. In mediation, we sit down at the conference table and get educated and facilitate the exchange of all necessary information so that we are prepared for transforming this simple conference table into a table primed for discussing settlement of the case. With mediation, within a session or two we are prepared to dive into the work of settling the case.
Litigation and Getting to the Settlement Table. The journey to getting the couple sitting at the settlement table in a litigated divorce can be a long, turbulent and expensive one. In a typical litigated case each spouse begins their voyage behind closed doors at the opposite end of their selected attorney’s desk. Here is where the work begins with each spouse getting independently educated by their own attorney and plotting their separate courses to accomplish whatever they are each seeking to accomplish in the divorce. The path typically moves from the attorney’s offices into the courthouse where each side enlists the Court to make interim orders as the preparation for settlement readiness continues. Often, the path goes back to the separate offices where formal strategies are used to extract information from the other side to get to a place where all necessary information about assets, debts, income and finances are at hand. In the litigation setting, to be able to ask the Court for a Mandatory Settlement Conference date, you are required to certify that your matter is otherwise trial ready. It is the norm, at least in the San Diego Courts, that couples do not arrive at the settlement table until approximately two years into the process. Litigated cases can certainly settle in a shorter period of time, but it is not uncommon for cases getting scheduled for a Mandatory Settlement Conference to be at least two years old.
The Condition of the Parties Once they get to the Table. A lot can happen in the two year’s getting to the settlement table. By this time the couple has already probably spent a fair amount of time in the Courthouse. There have likely been unflattering declarations filed with each spouse casting the best light in their own direction and an unflattering one toward the other. The couple will have just consumed two years or so of their lives in this uncomfortable place of limbo where they are not yet able to move on with their changed lives. Each spouse will likely have spent a large amount of money to get to this place. There is often continuing anger and resentment that can make the settlement discussion a little more challenging as the process often makes each spouse more rigid in their positions. While the time it has taken to get to the table has allowed for a gathering of all the information to put each spouse in a position where they can make informed decisions, there is a great emotional and financial cost in the long trek getting there.
Where Does that Leave Us? There you have it. Most cases settle. I think we can agree that we don’t want to rush to the settlement table. We need to understand our rights and know the extent of what we have to divide and what we earn so we can appropriately address the issues of property division and support. We also need to figure out how to best share our children so we can get that sorted out as well. It is great that most cases settle. Despite settling, a case that has taken two years to get to that place is a lot different then a case that accomplishes it in a much shorter period of time. Our focus should be on taking the steps we need to take to most efficiently get to that place where we are well prepared to talk settlement. The odds are great that we will eventually get there. Why not make shortening the path to get there our focus from the very beginning?