Should I Try to Settle?

We often receive calls from well-meaning, very upset, or frightened prospective clients who tell us their story and ask, “Is settlement a good or bad idea for my case”? We always respond that settling any Family Law matter is a good idea unless serious conditions exist which are not conducive to a settlement.

The Initial Use of Private Settlement Negotiations

Izzo & Associates utilizes a tried-and-true process to resolve each of our client’s cases as quickly and inexpensively as possible. So, when a prospective client, facing an adverse situation, informs us that they believe that they may have reached an agreement with another party, we review the facts of the case to determine if such an agreement will be legally binding and whether it is not contrary to our client’s interests. If so, we quickly draft an irrevocable settlement agreement for execution. This process can often be accomplished within a week or less, barring complications, and is followed by a corresponding court order. If a prospective client agrees with some, but not all, the issues presented in their case, our attorneys analyze their specific fact pattern and initiate private settlement negotiations. Such negotiations may occur directly with the opposing party or through their legal counsel to determine if a private settlement agreement can be reached to avoid the additional expense and emotional costs of litigating a court action.

Note: In such instances, your Izzo & Associates Attorney may suggest that we file your case FIRST to secure you a more favorable position, in the event your case is not settled and litigation is ultimately necessary.

If our initial legal analysis determines that a client’s fact pattern indicates the likelihood of a less-than-welcome result in court, we may suggest that our client avoid the expense and risk of litigation and instead utilize mediation to break the log jam. Mediation is when a neutral third party works with us and the other side to settle a dispute.  Izzo and Associates will always make it a point to advise our clients if we believe that they might be considering a potentially unenforceable agreement or surrendering valuable rights or property that the client might reasonably be expected to win in court. It should additionally be noted that, in some cases, a court, on its recognizance, can order opposing sides to attend mediation before scheduling a final hearing. Generally, judges in Texas are unimpressed when a party to a lawsuit refuses to attend court-ordered mediation.

General Mediation

Izzo & Associates always attempts to utilize mediators who are experienced and adept at dovetailing client interests to reach fair and reasonable settlements. Most mediators will require that we either meet at their office or utilize video conferencing. We insist, for our clients, that “shuttle mediation” be utilized, whereby each party and his or her counsel (if applicable) are in separate rooms, virtual or otherwise. By doing this, clients can speak privately with their attorneys.

Most family law mediations in Texas are scheduled for either one half-day or a full day, depending on the number of issues at hand, as well as the perceived difficulty of successfully settling a particular case. If an agreement is reached, the mediator will draft a written mediated settlement agreement (an “MSA”) while both parties wait. The parties and their attorneys will then review the agreement and execute it after any final changes or corrections are made. After a mediation, each party is generally responsible for paying half the mediator’s fee. One attorney is tasked with drafting any final orders or other documentation, such as deeds to be exchanged, etc., as outlined in the MSA. for the court to sign. Since MSAs are non-revocable in Texas, our judges will sign and approve orders and other necessary documentation subsequently drafted that conforms to the terms of an executed MSA.

Mediation Preparation

Our attorneys at Izzo & Associates prepare each client’s specific case facts before their mediation. Why? Well, how can a case be fully settled unless we have studied all of our client’s key issues and possess all of the documentation that would be necessary as if we were in court? We will, therefore, ask you for two main sets of written considerations before meditating. First, we will ask for your “Disneyland Ending” wish list (detailing what would occur if you were to be given all the things you would like as a result of your litigation), knowing full well, as reasonable adults, that we cannot get everything that we wish for. Next, we will ask for your “Bottom Line.” Here, we will need your assessment of your most important requests, in descending order, that you will require if mediation is to succeed.

Note: Keep in mind items of special or sentimental value to you, in particular, so they are not overlooked in any final settlement, like special children’s photos or your high school yearbook.

Of course, well before mediation is ever scheduled, you and Izzo & Associates’ legal counsel will become intimately appraised of all good, and especially negative, facts which could affect how a judge, under Texas law, would rule regarding YOUR CASE.

Note: Not telling your attorney negative facts can literally kill your case! You must be candid with your attorney to allow them to do their job.

For parties going through a divorce, your Izzo & Associates attorney will prepare a spreadsheet and collect documentation concerning the community and sole and separate debts.

Note: If one side or the other shows up for mediation without such proper documentation, it will generally be a waste of time and money.

Successful Mediation

For a successful mediation to take place, both sides need to compromise.  This means giving up some issues or property to which you believe that you are entitled. It also means that you will most likely need to be willing to part with some of your emotional ties and/or baggage. We always care for how our clients feel, and we DO know that any lawsuit or private settlement in a dispute is draining and can really hurt to deal with, even after it is done. The main thing we always try to explain to our clients is that voluntarily making a choice to settle is always easier than having a judge take things away from you or give them to someone else.

Post Mediation

If either party does not agree to settle their case during a mediation session, then mediation fails, and everyone moves on in the legal process. It is possible, however, if the parties were close or had some issues settled in a partially Mediated Settlement, to try mediation again to settle all remaining issues in some cases. Mediation is not a judgment in Texas, contrasted with a binding arbitration (where a private arbitrator hears arguments and makes a decision for you) or a final court decision. However, if a Mediated Settlement Agreement is reached, parties cannot later change their minds and revoke their agreement. Remember that a long day of negotiating is tiresome and can be draining. It is best to let things settle in your mind and let your body recover following a mediation. After you have had some time to reflect on what has occurred, you will want to review what is coming next with your legal counsel.

Benefits to Mediation

  • Your Izzo & Associates attorney can schedule mediation around your schedule.
  • You will have time to speak with your attorney and weigh your options as offers are exchanged back and forth since the mediator will need to take time in the opposing party’s room (virtual or real) in between sessions with you and your legal counsel.
  • The advice from your neutral mediator can help you dovetail your hot-button issues around the opposing party’s issues or to split the difference fairly as a judge might do.
  • If you are navigating a divorce or SAPCR with children, you and your future ex-partner can negotiate and settle issues such as child decision-making, time with each parent, child support, etc., rather than having a judge impose such matters on you. This can increase the effectiveness of future co-parenting in your children’s best interest
  • Mediation is informal and less stressful than going to trial.
  • You can decide whether to agree to a settlement or to reject one.
  • Even when a case does not settle in mediation, both you and your attorney generally learn a great deal about the opposing party’s case facts, arguments, strengths, weaknesses, and hot-button issues, which can be invaluable in court, if necessary.

Hidden Assets

If your spouse may be hiding assets, you should not proceed to mediation until your Izzo & Associates attorney initiates proper discovery. If you are intimidated or frightened by an opposing party, you should avoid mediation.

Some Mediation Pitfalls

  • Do not let an opposing side bring others to your mediation. Generally, individuals who do not have a vested interest in the issues at hand or who are merely upset with you for whatever reason

Note: A divorcing spouse’s parents or your ex’s new partner) might sabotage a mediation for no good reason other than bad faith by influencing an opposing party to ask for the impossible.

  • Beware of the proposed language that you do not understand. Have your attorney explain the ramifications of such language, as well as any legal terminology.
  • If an opposing party intimidates you, let your lawyer take the lead, as you will encounter great difficulty in negotiations.
  • Never agree to things that you will later regret, regarding issues with children, or a division of assets and debts, if you are dealing with guilt or the effects of abuse from an unhealthy relationship.
  • Letting an opposing party bluff or threaten during mediation will also result in a poor outcome for you. Let your Izzo & Associates attorney provide you with a cost-benefit analysis of settling for a poor deal vs. going to court.
  • Being stressed or fearful about going to court can result in a very poor mediated settlement. Quite often, a stressed or intimidated client will literally give up the ship, even though they have a very strong case that would pay off in spades if they trusted their legal counsel.
  • After exhausting settlement discussions, do not just cave in. Remember, MSAs in Texas are non-revocable, and you may regret the result.

Settlements

Quite often, when clients reach an agreement during mediation, they may later feel a sense of loss, wishing that they could have asked for more or that a court could have somehow punished an opposing party for the harm that they caused. Many clients wanted their day in court.  A very wise adage that most legal experts adhere to goes as follows: If both parties to a mediation walk away at the end of the day with a settled agreement and each party feels that they have lost something, then it was a successful mediation.

Please note that any settlement without the aid of a specialized Family Law Attorney can and often does involve decisions that may negatively impact the rest of your life. Such decisions should not be made when you are stressed or without knowing and analyzing the potential consequences of your decisions. If you are not well versed in Texas law, you could easily, although unintentionally, bind yourself to unintended obligations and/or consequences.

Final Thoughts

If you are contemplating a Divorce, a SAPCR, a Modification, or an Enforcement lawsuit involving children, do remember that not every settlement agreement which you agree to engage in, simply because it suits you and the other party’s adult interests, will be acceptable to a judge. Unfortunately, it can be very costly or impossible to rectify such situations.

Note: To gain an enforceable order, it is vitally important to have your Family Law Attorney explain and guide you through the process of securing a legally sufficient settlement agreement and final order for a court to execute.

Izzo & Associates can guide you and provide the necessary tools for a fair and just outcome to any settlement negotiation. Just give us a free call at 512-218-9292 to see how we can help.