Knowing When to Settle and When Not to Settle
Settling, in the legal sense, refers to deciding that the outcomes desired to culminate a case, such as a divorce, have reached the place where no more can or should be done to litigate the issues under consideration.
At this point, be it at mediation or in an attorney’s office, a settlement agreement will be executed then presented to the judge for scrutiny at a final hearing so that the Judge can turn the parties agreement into an order of the Court. It is highly unlikely either party will be 100% happy with the outcome but a settlement indicates both parties were willing to compromise and each party will be coming away with at least some of their hoped for results. And, in almost every instance, it is better for a couple to decide their own destiny than to have a Judge decide it for them.
In addition to the benefit of deciding one’s own outcomes, there are other advantages. For many people the idea of having to go before a judge and sometimes a jury is very frightening as is the idea of being cross examined by the opposing side’s attorney. There is also a time factor when one must be able to appear in court and miss work. Too, it is usually much more cost effective to settle out of court both from the standpoint of court costs, and if the attorney is paid by the hour there is much less work to do and thus lower attorney fees. Privacy is another advantage to settling as most details of the case are kept out of public record and a confidentially clause can be made a part of the settlement agreement. Unless a Judge orders records sealed, court documents become public record.
When an attorney is, as should be, doing the right thing, settlement will become, not a “hurry up and get it over with” option, but a way to help a client solve whatever issues are at stake in a “best choice” scenario, the choice being to settle or not to settle. The attorney will help their client look at all issues under consideration and make suggestions as to where and why there could be compromise. For example, each party could give up an item to the other such as a high end stereo system in exchange for the antique dining room furniture. Also, issues such as amount of alimony, what holidays a child will spend with which parent, distribution of marital assets and debts, what happens to the family home, and who gets the family pets are among matters which need settling before a divorce settlement agreement can be reached. Of course, overall, the issues to be resolved will depend on the type of case in litigation.
It is the job of the attorney to be sensitive to the client’s real life needs and encourage, not push a settlement. Both parties need to be ready to settle before a final agreement is made. Sometimes one party or the other is so emotionally distraught or has such an extremely non assertive personality the attorney must be careful to see that their client’s needs are met, not just slid under the table. In the end, it is the client who has the final decision regarding to settle or not to settle and a supportive attorney will honor this, even if he or she disagrees with their client’s decision.
It is most important, then, when choosing an attorney, to discuss with him or her how they view arriving at a settlement agreement. If possible it is wise to find an attorney who is also certified to be a mediator as they can then be assured of not only legal assistance but the “know how” of how to best reach a fair and well presented settlement agreement or if that is not possible, allowing the case to move on to the courtroom. Additionally, Supreme Court Certified Civil Mediators, such as Grant Gisondo, Esq. are provided with additional training in the art of negotiation and settlement.
If you are looking for a Family Law attorney who is both experienced in family law and a mediator, and you live in Palm Beach, Martin, St. Lucie, Miami Dade, Broward, Orange, or Hillsborough counties in Florida you can contact Attorney Grant Gisondo. His office is in Palm Beach Gardens and he will be pleased to meet with you for a free, initial, in-office consultation. Call (561) 530-4568 for an appointment.