Nolo's Essential Guide to Divorce - Emily Doskow [61]
Last-Minute Negotiations: Settlement Conference
You'll probably have a mandatory settlement conference very shortly before your trial is set to begin. (The date is usually set at the pretrial conference discussed below.) The court will assign a mediator or settlement conference judge to try to help you settle. It usually won't be the same judge who is going to hear your trial, but another judge from the same court, or a mediator-probably a local lawyer experienced in family law, approved by the court. At the settlement conference, you and your spouse and both lawyers meet with the mediator or judge to discuss the current status of the case, what offers and counteroffers have been proposed, and where the settlement discussions have stalled out. The mediator or judge will help you try to bridge the gap and see whether the case can he resolved. This is a point at which many cases settle.
Even if your court-sponsored settlement conference comes and goes without a settlement, your lawyers can continue negotiating. There may be phone calls, more letters, and in some cases, another meeting with the judge or a mediator on the very day the trial is scheduled to begin.
Evaluating Settlement Offers
How do you evaluate a settlement offer? After all, you've already invested many thousands of dollars and immeasurable time and energy into getting ready for the trial. You'll have to look at the interplay between these key issues:
• How much better is this offer than previous ones?
• How close is the offer to what you want-and how many of the things that are most important to you are satisfied by it?
• How certain are you of your legal positions-in other words, how likely do you think it is that you will win everything you want? (Trials, as any lawyer will tell you, are unpredictable.) And how much better off would you be if you did win?
• How much will it cost you to go to trial?
• How relieved will you be to stop preparing for trial and get back to the rest of your life? (Imagine waking up the next morning with the settlement arranged and the divorce nearly finalized.)
Consider these questions and discuss them with your lawyer. And don't give short shrift to the last question-your emotional health and happiness are as important as anything else.
The Pretrial Conference
The last hearing before your trial will probably be a pretrial conference, at which the lawyers and parties (you and your spouse) appear and discuss with the judge all of the issues involved in planning the trial. (See below for more about what those issues are.)
Not all judges require a pretrial conference, but they are fairly common. Some judges like to have the pretrial conference well in advance of the trial, and some do it much closer to the actual date. The judge will almost always be the same judge who will hear your trial, so this is your opportunity to define the issues and state your positions.
At the pretrial conference the lawyers and the judge, with input from you and your spouse, choose a date for your trial. The lawyers estimate how long the trial will take, and the judge sets aside the time needed. Of course, the judge has heard the discussion of the issues, and may also have an opinion about how long the trial should take. As you might expect, the judge's opinion will be the one that prevails. The lawyers also submit lists of the witnesses they expect to call at trial.
The judge will tell the lawyers how they should prepare and present evidence-right down to details about whether exhibits should be labeled with numbers or letters-and what kind of written trial brief they should submit in advance of the trial. A trial brief explains what the legal issues are from each party's perspective before the trial. As the trial proceeds, the judge can use the trial brief to place the evidence in context.
The judge will