Step # 8 The pretrial conference; for many the last step

Posted on May 14, 2009 by Nancy Van Tine

Hi there,

Done well, by both counsel and the judge, the pretrial conference is a great opportunity to settle a divorce case. That is if you have not already settled it at the four way meeting, in which case you probably will get divorced on the day of the pretrial conference.

If you haven't settled, this is the time for the attorneys to write a memo that tells the story of your circumstances and sets forth in the best light possible what you want, and why you want it.  By the time of the pretrial there should be no open questions as to values or assets.  If there has been a custody issue the Guardian Ad Litem report should be in and should have been reviewed. Both sides must file an up to date financial statement and should file an asset chart as well.

The idea behind the pretrial conference is that the judge can read the memos and the financials; ask the lawyers if they have anything to add then the judge can tell everyone what he or she thinks about the areas of dispute. Then the parties and their lawyers (who hopefully have also brought draft agreements with them) go out in the hallways and try to reach an overall settlement. The court is always willing to take that settlement and get you divorced that day. If you can't agree on everything and your case has to be tried then at least you can narrow the issues and your lawyer has gotten some good insight into how the judge may view matters.

In a perfect world this would happen more or less this way every time, in the real world of the very overburdened court system it doesn't /can't always occur. You may find yourself in the frustrating position of having done everything correctly and getting little or no feedback from the court. Some cases truly do need to be tried as well. There are often valuation issues or contribution issues that are so disparate that they require a trial, and perhaps, most unfortunately, custody cases often require a trial.

But.... easily 95% of all cases settle before, at or close to the pretrial and settle as a result of the work done in preparing for the pretrial.

Best,

Nancy
 

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Mediation

Posted on March 26, 2009 by Nancy Van Tine
Hi there,
 
In my last post I mentioned the Family Service Office of the Probate Court.  That is the department which is tasked with getting litigants to settle their cases. Most cases do settle, which is a good thing as the system would otherwise be totally overwhelmed. It is also a good thing for the parties, as an agreement in which you have had some say is generally better than one which is imposed on you. 
 
Even if it is costly to get there, an agreement is less expensive than trying your case and it has a better chance of being final as well.  One of the best ways in terms of cost and civility to reach an agreement is through mediation.  This is what the Family Service Officers do and here is a good explanation of non Court mandated mediation from Partner Robin Lynch Nardone who has extensive experience in family law mediation:
 
Resolution of a divorce or other family law matter without extensive litigation in the court is possible. Mediation is a voluntary process that invites people to come to agreement through informed negotiation with the assistance of a neutral third party. Mediation gives the parties the opportunity to discuss the issues between them (be it division of property, custody of children, alimony, child support or any number of other family law matters), clear up misunderstandings, determine their underlying interests or concerns, find areas of agreement and, ultimately, to reduce their agreement to a written settlement document. Mediation is particularly useful in the divorce and family law arena, as it provides spouses with control at a time when their lives might otherwise feel out of control. Parties come together to make decisions that impact significantly on themselves and their children, rather than leaving the decision making to a judge who sees hundreds of litigants every week and is likely to make decisions in a cookie-cutter fashion. It is often said that people are more likely to comply with the terms of a negotiated settlement than with a judgment imposed on them by a Judge. Further, when there are children involved, it is the parents who have raised those children who are in the best position to determine the parenting schedule that will suit the personalities and needs of the children going forward. Ending a marriage or making changes after a divorce can be difficult, but a war need not be waged in the courthouse, when honesty and cooperation is all that mediation requires.
 
 
Best,
Nancy
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