Mediation and Settlement in Georgia Divorce Cases
The best settlements in a case are based upon the relative strengths of your case. A mistake that is often made is thinking you will get what you need in settlement simply because you think it will be fair. The other side seldom sees things the same way. As such, the best way to get a good settlement is to build a strong case, a case that makes the other side wary that if they do not settle, they might lose, or at least put the fear of such in their heads.
Mediation and settlement are also a strategic issue. It is very important to understand the strengths and weaknesses of your case, your needs, and what all the facts are in the case. It is important to understand that your spouse will often employ psychological warfare to try to intimidate you, or even sometimes guilt you, into a settlement. We call this “bluster”. Listen to it, report to your attorney, but ignore it. What normally happens, after all the threats and “bluster” when the parties get to mediation, the attorneys take control of their clients, and the clients become less combative and more rational, as they better realize their risks if they don’t settle, and the costs of fighting the case further.
One very useful negotiation tool is the concept of BATNA. BATNA is short hand for “Best Alternative to Negotiated Agreement.” This is a strategy that negotiators have developed to prevent a party from getting too little or giving up too much in negotiations. The gist of the strategy is to determine the course of action if an agreement is not reached within a certain time frame, to gauge whether or not the terms of settlement would be preferable to simply holding strong and fighting the case until you get what you want. It is a tool to rationally decide on how far you are willing to go in a settlement, without entering into an agreement that is not in your best interest, given the alternative course of action and likely outcomes and costs.
While a case can settle without mediation (and we often do settle cases without mediation) mediation is the most common technique used to reach agreement between the parties. The process of mediation (in general, as the process can vary, but in general) utilizes a third party neutral person who has no interest in the case (each party pays for 50% of the mediator’s time), who will go between two conference rooms, back and forth, trying to obtain a settlement on the issues in the case. In each conference room will be the husband and his attorney, and the wife and her attorney in the other conference room. At times we may meet together, but for the most part the parties will stay in their separate conference rooms with their attorney. This makes for a less stressful, and more thoughtful environment, in which one party cannot put the other party on the spot, or try to intimidate the other party by power of personality or emotion.
It is important to develop a strategy for mediation, and to understand the facts and issues. Mediation is also a very valuable tool, even if the case does not settle, as it is a forum where the facts and issues can be discovered and understood more completely as you prepare a case for trial. So even if a case does not settle at mediation, it is still a valuable process in developing a client’s case.
One problem in mediation, is sometimes the mediators themselves. Mediators get a “win” if they settle a case. Even if the settlement is a bad settlement for one party. It is important to understand this, and stick to your guns, as you and your attorney have your best interest in mind. As mediation goes on, new facts and different perspectives on issues may develop, and a party’s position as to what is a good settlement may change in the process, but in the end, do not settle because the mediator thinks it would be a good settlement, but because you and your attorney think it is a good settlement. Even the best mediator will have a hard time seeing your best interests against their “win”. We each bring our own biases into the process, and it is important to understand the mediator’s role in the process, the bias that comes from their position in the process, and understanding (or learning as the process unfolds) where the other side is coming from.
More cases than not settle by the time we get to mediation. And we want to make sure your settlement is a good one. Sometimes there are technical issues that need to resolved, and some things need to be addressed in minute detail. We need to get it right. And we will and do in many more cases than not. However, if your case does not settle at mediation, we also want to use the process to help develop the case for trial, if that is what the case needs to come down to.
Final words, a good attorney will talk to you straight, will tell you what a reasonable settlement is, what your prospects are if settlement is not reached, and keep you grounded and rational in the process. This said, it is also proper to simply want more than what the other side will willingly give you at settlement. And if that is the case, then use the process to acquire information and better prepare your case. Either way, it is a productive process, and more likely than not your case will settle in a reasonable manner at mediation.
Most divorces, and even child custody cases, in the State of Georgia will settle prior to trial. Mediation is the number one tool to broker settlement between parties.
Contact us or call today to learn how Shaw Law can work with you to achieve the best outcome possible for you and your children.
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.