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Using Settlement Counsel in Divorce Litigation

by Laurie Israel, Esq.

Complex divorce cases often start with litigation. Parties hire lawyers, and they do what litigators do – prepare the case for trial. In doing so, the parties are embroiled in discovery, deposition, and perhaps character attacks. Their lives and respect are belittled. They begin to hate each other. Litigation counsel must pursue the proper standard of practice for litigation, which may involve many aspects that can prevent settlements. Until the four-way meetings required by court, there is generally never a face-to-face meeting where the parties, aided by their lawyers, can directly deal with the issues.

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Trial lawyers do settle cases. However, when litigation unfolds, opportunity for early settlements and most cost-effective settlements are usually lost. Litigation attorneys need to show strength, good competitive position, and willingness to fight. Offers and counteroffers are generally extreme. Parties are left only with the option to fight. The situation becomes polarizing. Serious settlement discussions are compromised. Much time and expense is devoted to trial preparation.

There is a way to help this situation. A party who is represented by a litigator may hire “Settlement Counsel,” even from another law firm, to work on settlement of the case. This is a lawyer experienced in dispute resolution (collaborative law, mediation), who is trained to work with parties and their counsels to see what the problem is preventing settlement and work on resolving that conflict.

Often the litigation is ongoing while settlement counsel works. It is important that enough facts have been developed so that the Settlement Counsel can settle based on relevant facts. In Massachusetts, in most case, the mandatory self-disclosure under Rule 410 satisfies the fact-finding with need of little else. Parties and their litigation counsel can cooperate in obtaining what else might be needed

Sometimes the parties agree to pause the litigation while the areas and issues of conflict are resolved. Either way works. In fact, the Settlement Counsel can help reduce the cost of litigation by narrowing the issues and areas of discovery. Settlement Counsel can be updated on the facts and issues of the case very efficiently by the litigator who has been involved from the beginning. Also, the “change of horses” sometimes provides a breath of fresh air and a “face saving” way to settle the case.

It is important that the time frame for settlement by Settlement Counsel is a short one. If settlement cannot be accomplished quickly, then litigation counsel should vigorously continue his or her work. Since a party still has litigation counsel on the side, that party is not transmitting lack of resolve by hiring litigation counsel. The other side knows that if settlement is not achieved, litigation counsel will focus on a different mission – winning at trial.

If your case is stuck in litigation, or if you want to lighten the mood of the case, think about adding a Settlement Counsel to the mix.

Copyright ©2010 Laurie Israel.

Laurie Israel

Laurie Israel

Laurie Israel is a founder of Israel, Van Kooy & Days, LLC, a law firm located in Brookline, Massachusetts. She combines a family law practice with estate planning, tax, mediation and collaborative law. Laurie is a former board member of the Massachusetts Council on Family Mediation and the Massachusetts Collaborative Law Council. Her writings include articles on divorce, mediation, marital mediation, and prenuptial agreements. You can find her articles on, Huffington Post, and She is the author of the forthcoming book The Generous Prenup: How to Support Your Marriage and Avoid the Pitfalls.
Laurie Israel

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