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The Settlement Mindset

By Laurence J. Cutler and Robert A. Epstein
October 25, 2011

It is widely known among matrimonial practitioners that almost all cases settle ' well above 95%, in fact. It is also widely known that if, when, and how settlement is reached depends on countless factors including, but not limited to, a given set of factual circumstances (assets, liabilities, income, and the like), the parties, and ' not surprisingly ' the attorneys. The personalities of both the parties and their attorneys affect their willingness to settle. Presuming, (admittedly, perhaps unrealistically) that each attorney involved will have a similar knowledge of the facts, law, and the like, the way an attorney approaches a given matter often dictates the course of settlement.

For this reason, parties often research not only a matrimonial lawyer's pedigree, but the lawyer's reputation as well, before they decide whether to retain that person to act on their behalf. For the purpose of this article, the primary question a party researches in retaining a lawyer is whether the lawyer's mindset is more geared toward settlement or litigation. Certain matrimonial lawyers have a reputation for not knowing how to settle a case, preferring to litigate issues in court rather than to resolve issues peacefully in a conference room. However, most attorneys advise their clients that settling with their spouse, rather than engaging in the protracted and costly exercise where a trial judge decides the issues, is a better and far more cost effective resolution. One of the exceptions, perhaps, involves cases in which there exists a legal or valuation issue that would best be decided by a trial judge. Even in those cases, however, parties can attempt to resolve other issues to narrow those remaining before the court.

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