Settlement and Negotiation Strategies

This may be the first time you are involved in a legal dispute, or the first time you have represented yourself in court. Many people feel intimidated by the legal process and are not sure how to proceed. This feeling can be worse when the other party has a lawyer and you do not. The court clerk can offer you basic information about procedures and paperwork. This website can help you prepare forms to file in court. But at some point in the process, the judge may suggest settlement. Or you and the other party might decide you want to settle your legal dispute outside of the courtroom. This article will give you some information about the settlement process and simple tips for communicating and negotiating with the other party (or their lawyer).

Communicating with the Other Party or Their Lawyer

If the other party in your legal dispute has a lawyer, the lawyer acts as that party’s representative. So, any papers that you are required to serve on the other party must be sent to that lawyer instead. You can find the lawyer’s contact information on the first page of any court paper filed by the other party. Generally, lawyers can’t talk directly to the other party if that party is represented by a lawyer. If you don’t have a lawyer, you may contact the other party directly, unless there’s a court order preventing you, such as a personal protection order. You may also contact the other party’s lawyer.

The job of the other party’s lawyer is to protect their client’s interests, not yours. That lawyer is not a neutral person and cannot give you legal advice. The other party’s lawyer may want to communicate with you only in writing. Both you and the lawyer should be respectful of one another, and respond to e-mails, letters, and phone calls within a reasonable time.

If the other party or their lawyer agrees to do something, ask them to put it in writing. That may be useful to you later if they don’t keep their word.

Settlement

Very few court cases end with a decision from the judge. Most court cases will end with a settlement that both parties agree to. If the parties reach a deal, a written settlement agreement states its terms. A settlement is usually a compromise where both parties give and take. This agreement may be written by the parties themselves, or drafted with the help of a neutral person, such as a mediator, referee, or other court staff.

Settlement has many advantages over going to trial:

• It can resolve your dispute faster, especially in cases where you agree about most things

• It may cost you less, for example, in court fees or pay lost during time off work for court dates

• It may be more confidential than a trial – the final judgment is a public record, but your settlement talks stay private

• You will have more control over the outcome of your dispute and avoid the risk of a judge deciding against you

• Avoiding a combative court process may be better for your relationship with the other party, especially if you have children together

• If you both have agreed to the solution, you both are more likely to stick to it

However, settlement is not the best choice for every legal dispute. Your case might not be right for settlement if any of the following are true:

• The facts and the law that applies to the case support your position much more than the other party’s

• There has been a history of abuse or intimidation between the parties

• One of the parties is used to being in control and making all of the decisions

• One or both of the parties are not able to represent themselves in mediation. For example, if one of you has a physical or language barrier. In this situation, you both may need to have lawyers during mediation

• The health or safety of one or both of you might be put at risk by mediation

• You don’t yet have all the information you will need to evaluate offered compromises. If this is true, it might be too early to try settlement

If any of these apply to you, you may want to consider hiring a lawyer so that you get the best possible result in your case.

Timing of Settlement

You can try to settle at any point in the legal process before you have a final court order. Settlement could happen in the courthouse, such as at a pre-trial hearing or other meeting scheduled by the judge, or outside the courtroom before a hearing. Settlement can also happen away from court. For example, you can set up a meeting with the other party somewhere else or talk by phone.

You may find you can agree on some but not all of the issues in the dispute. If so, you will have reached a “partial settlement.” This is still useful, because it means the judge will have fewer issues to decide at trial.

Settlement is a voluntary choice: you are not required to agree to anything during settlement talks or mediation, and you can return to the court process at any time.

Effect of Settlement

If you do reach an agreement, be sure to put it in writing. Both parties must date and sign it. If either of you breaks the agreement, you may return to court. If the judge didn’t approve your agreement, the signed document will show the parties’ intentions—but it is not necessarily enforceable. The judge will decide whether to hold you to the agreement. If you sign a written agreement during court-ordered mediation, the agreement is usually enforceable.

If you want to be sure a court will enforce your agreement, it must be formally approved. You should write it up as a consent judgment or stipulated order and present it to the judge for signature. This will end your case, and you will have a final order. Therefore, before you come to a final and complete agreement, make sure you have resolved all the disputed issues and that you fully agree to the terms of the settlement. Getting a judge to change an order both parties agreed to can be very hard.

Negotiating Skills

Settlement talks or mediation can give both parties a chance to talk about their needs and concerns. Negotiating can raise difficult and emotional issues. Try to stay level-headed. Keeping the conversation polite and respectful will improve your chances of reaching agreement.

It is also important that you take time to prepare yourself before those negotiation talks begin. Good preparation will give you more confidence going into mediation or settlement discussions.

Preparing for Settlement

• Figure out who is involved in your court case: besides you and the other party, who else will be affected by the outcome of your court case? In a family matter, for example, this may include your children and/or new partner

• Think about the needs and interests of all the parties involved. This is not the same as a party’s position. A position might be, “I want sole custody.” A need or interest might be, “I want to maintain a close relationship with my kids.”

• Brainstorm: what can be done (and by whom) to meet those needs?

• Consider: what will happen if you don’t reach an agreement?

At the Bargaining Table

Negotiations don’t have to happen face-to-face, but many times the most successful way to negotiate is in person. There may be reasons you don’t want to sit down with the other party in person. In that case you could use a mediator to act as a go-between. You and the other party may come to an agreement through phone calls, e-mails, text, or letters. However you get there, make sure to put your final agreement in writing. Both of you must sign it.

If you can’t come to an agreement, you can return to the court process.

There are several things you can do to get the most out of a settlement conference or mediation:

• Make sure you are prepared (see above)

• Be an active listener: make eye contact, take notes, use your body language to show the other party they have your full attention

• Ask open-ended questions to learn about the other party’s needs and interests

• Express yourself openly and respectfully

• If you’re worried the process is getting out of control, take a break to regroup

• Brainstorm and write down all possible solutions without making judgments

• Discuss the options and assess their pros and cons

As you come to agreement on any of your disputed issues, write down the resolution and set it aside. This will allow you to focus on the remaining issues.

Facing a Lawyer in Settlement Talks

If the other party has a lawyer, the lawyer might speak for that party during settlement discussions. They might leave the bargaining table together to discuss the options in private.

If you don’t have a lawyer, you can bring someone with you to the settlement meeting. This could be a friend or family member. Choose the person wisely: don’t bring someone who will add to the stress of the situation. Your supporter may sit at the table with you, but you should tell him or her not to join in the settlement discussions. If you want to ask for advice or talk about the options, go speak privately with your supporter.

Before You Sign

Negotiations are discussions. They may be difficult, but you should not feel pressured to agree to anything you are not comfortable with. Remember, you can return to the court process at any time. If the judge signs your agreement it will be entered as a final order. Be careful not to sign any deal that is not in your best interest. Before you sign, ask yourself questions like:

• Does this agreement protect the interests that are most important to me?

• Am I settling only because I’m scared of going to trial?

• Do I believe settling this dispute is my only choice? Am I feeling pressure to settle?

• What are the chances I could get a better outcome at trial?

A good settlement is one that creates solutions that meet and advance the needs of both parties to some degree. Your solution may not be perfect, but it should have some benefit to all parties. Parties are more likely over time to comply with such a settlement than a judge’s order.

To learn more about different settlement processes, read Mediation and Other Forms of Settlement.