To Settle or Not to Settle, That is the Question

There are but two options in finalizing a divorce:

• Negotiate and settle on the division of property and assets and on custody questions
• Litigate in court, typically before a judge but occasionally before a jury.

Some individuals begin the process determined to settle, but if their former partner is unwilling to compromise, litigation becomes the only alternative.

The fact is, the two options go hand in hand, and a wise attorney will employ this knowledge as they devise their strategy.

Definitions:

• Settlement mode means that you jockey for a good compromise, you stay firm on your deal-breaker issues but both parties give and take on lesser issues to accomplish a mutual settlement out of court. Even when you make some concessions in this context, the overall result is often better because the parties themselves control it instead of a third party like a judge.
• Litigation mode is when you intend to go to court. In litigation mode, you engage in discussions with the opposing party or attorney to position your arguments in a favorable light to you. In litigation mode you go full throttle to argue for the best possible outcome to the judge. These are very different modes which can easily get confused by clients.

Settlement Mode and Litigation Mode are intertwined; one does not exist without the other.

At Shaw Law Firm, we try to, and want to settle favorably every single case. Good settlements are made by building a formidable case to litigate, thus making it clear that it is in the other party’s best interest to settle. There can come a time, though, when it is obvious that the case will not settle. Then there’s no reason to spend time and resources on a hoped-for settlement.

Consider these points when you’re trying to choose between settlement and litigation:

To Settle:

• Set aside the emotions. Revenge, pay-back, sticking-it-to-them attitudes will slow down the process and confuse the issue. Keep the divorce process focused on the business at hand and utilize a therapist to work through the emotions.
• Put yourself in their shoes. You may have been thinking of divorce for some time and mentally prepping yourself, but your spouse may be in shock. Just like the stages of grief, it takes time to work up to the “acceptance” stage. Going slower may be helpful in creating real compromise.
• Stick to what your attorney says to do. In the effort to “be nice” or “do the right thing by them” you may inadvertently give away more than you should. Keep the negotiations business-like and follow your attorney’s advice; you are paying them to advocate for you and protect you, so let them help you by staying true to the game plan.

To Litigate:

• Gather all the tangible evidence. If you can touch it, see it, smell it, pull it out of a drawer and review it later – it is evidence. “He-said, She-said” is not always good evidence (but if that is what you have, then use what you have to prove your point).
• Focus on the issues that win, not your laundry list of complaints (i.e. remove the drama). You may have 50 legitimate issues, but in court, your attorney may be focusing on the five issues that will WIN you what you want. If you spend all your time and your attorney’s time venting or rehashing lesser issues, you distract from the WIN and potentially increase your expenses at the same time.
• Stick to what your attorney says to do. Litigation takes a lot of prep work emotionally, physically and often financially, so every time you don’t complete an assigned item on your to-do list, you raise the cost of litigation. If you are unsure of the strategy, be sure to clarify so you and your attorney are on the same page, but after that, stick to the game plan.

It Takes Two to Settle

If you are determined to settle and the other side is determined to fight, it will most likely end up in a fight unless you have some strong evidence to convince them that settlement is better. Some people (and, unfortunately, some attorneys) simply feel like they need their day in court and very little will stop that intention.

Navigating the uncertain ground between settlement and litigation is best handled by an experienced attorney skilled in BOTH outcomes. Scott Shaw, with the Shaw Law Firm, has been known to settle very difficult cases, but he’s also known as a pure bulldog in court. If you are questioning whether to settle or not settle, contact the Shaw Law Firm and we can go over your specific case and give you the pros and cons of both options as we have won in both scenarios.

Scott Shaw is founder and principle of Shaw Law Firm PC, founded in 1995 and dedicated solely to divorce, family law and child custody matters that must be addressed and decided in the state of Georgia. Shaw Law Firm serves the greater Metro Atlanta area, particularly the counties of Fulton, Gwinnett, Cobb, Cherokee, Forsyth, Paulding, Henry, Fayette, Coweta, Newton, Walton, Bartow and Douglas. Schedule a consultation today at 770-594-8309 or contact us.