Effective Negotiations- A View from the Bench By Judge Lisa L. Sutton

Family law matters are best resolved by the parties themselves.  If a matter is not resolved before trial, the parties give up control over the outcome. In contested family law cases, Thurston County Family & Juvenile Court offers the parties a settlement conference lasting one hour.  Settlement conferences are conducted by a judicial officer at no cost to the parties.  The settlement conference is the party’s only opportunity to talk with a judicial officer before trial.  Also, for child custody and visitation disputes, these cases must be submitted to an approved family law mediator within 120 days after respondent files a pleading.  If there are issues in addition to custody and visitation, either party also may request a settlement conference at the start of mediation.  See LSPR 94.05.  This article addresses the settlement conference process under LSPR 94.03D.

How to Prepare for the Settlement Conference

1. Both parties should exchange information in advance, discuss issues they disagree about in advance, and come to the settlement conference ready to problem solve.
2. To prepare for the settlement conference, each party should identify the information each has and what information may be needed.  This list may include a list of debts and liabilities, property values, whether an appraisal is needed, Bluebook information in valuing automobiles, two years worth of pay stubs and tax information, and retirement/pension values (and payouts) and other similar information.
3. If there are children involved, the parties should prepare and propose a parenting plan that is in their children’s best interest.
4.  The Thurston County Local Rules, LSPR 94.03D, require each party (or attorney if represented) to exchange a written settlement conference statement 14 days before the settlement conference date. A working copy of the settlement conference statement and materials are provided to the judicial officer who will hear the settlement conference.
5. If a Guardian Ad Litem has been appointed to assist the court, the GAL will need sufficient time and the most current and updated information to complete his/her recommendations.  It is incumbent on the parties to cooperate with the GAL so that the GAL’s report can be submitted timely to the court.  The court will review the GAL’s recommendations prior to the settlement conference.  The GAL also will attend the settlement conference and will be asked to provide his/her input to the judicial officer.  The settlement conference date should be noted to occur after the GAL’s report has been completed.
6. A party’s settlement conference materials should be as complete as possible and attach any relevant documents.  In the settlement conference document, a party should identify the key facts, the disputed issues, and the matters that are not in dispute or likely to be resolved, and any barriers to resolution.
7. There are several advantages to a party when a timely settlement conference statement is provided to the opposing party and the judicial officer. A settlement conference statement is the first real opportunity a party has to educate the opposing party (and his/her attorney) of the strengths of that party’s position.   It will become apparent what additional information may be needed to finalize any resolution.  A party submitting a timely settlement conference statement demonstrates a desire to negotiate.   Many experts in negotiation believe it is advantageous to make the first offer, rather than waiting to respond to the opposing party’s initial offer.  Settlement conferences provide a party the opportunity to learn about the weaknesses in his/her position and the opposing party’s strengths and weaknesses.
8. The judicial officer will be better prepared to conduct the settlement conference if your settlement materials are timely.

The Settlement Conference Process

1.  Settlement conferences are not about “winning or losing” or being right or wrong.  Settlement conferences should not be used to argue about one party’s position because that party’s position is set forth in the settlement materials.  The parties instead should come prepared to make and respond to offers.
2. Each party will be given an opportunity to explain his/her position and make and respond to settlement offers.  The judicial officer will provide input to the parties during the settlement conference process to encourage resolution.  The judicial officer’s ability to provide input to the parties will be based on the quality and timeliness of the settlement conference materials, and the parties’ good faith negotiations in order to achieve resolution.
3. Certain ground rules apply during the settlement conference process.  There is no name calling/rude behavior/talking over others. Everyone should be treated with respect. After presenting his/her position, each party (and his/her attorney) is expected to listen to what others have to say. If the judicial officer concludes that a party is not abiding by these ground rules, the judicial officer can end the settlement conference, and/or sanction that party.
4. The judicial officer should not be working harder than the parties to resolve their dispute.
5. In participating in a settlement conference, a party should always consider the following: What is the best possible outcome at a settlement conference given the risk, time, and additional cost of a trial?
6. If a full or partial agreement is reached, the parties will be sworn in and the agreement (under Court Rule 2A) will be placed on the record and recorded.   Final paperwork will be entered at that time, or scheduled for presentation within 30 days or as soon as possible.

What Happens Post Settlement Conference

If resolution is not reached at the settlement conference, the following takes places:

1.  The court will set a trial date (Court Administration provides the parties a trial week);
2. The parties are required to submit a written settlement offer to the other party within 30 days after the settlement conference, but not less than 21 days before trial;
3. The temporary orders already issued will remain in place until the court’s ruling at trial on that issue; and
4. The parties will incur more time and expense to prepare for trial.  Additionally, the parties will be required to appear in court for a status conference, pre-trial conference, any motions noted, and for trial.  If a party does not appear, the court may impose sanctions up to $500.

Why Cases Do Not Resolve

Some cases do not resolve as a result of a settlement conference.  The reasons can vary but can be summarized as follows:  one party was not sufficiently prepared to resolve the matter or make meaningful progress; one party did not show up for the settlement conference or failed to fully participate in negotiations; additional information was needed to make meaningful progress in negotiations (often this information relates to pension/retirement accounts, current employment/pay information, or property values where an appraisal is needed); the parties used their time during the settlement conference to argue their positions rather than exchange offers and negotiate; or one or both parties failed to make their final and best offer before trial.  Lastly, despite best efforts by the parties, some cases just cannot settle because there is a good faith disagreement.