While settlement discussions can take place informally between you and your wife, perhaps with one or both attorneys present at any time, before trial you will probably also attend at least one mandatory “settlement conference” (also called a pre-trial conference). The conference is a mandatory court appearance — a sort of forced peace talk. Your attendance will likely be required. The conference itself typically consists of the attorneys sitting down across the desk from the judge in the judge’s chambers and discussing the case. You and your wife will likely have to wait in the courtroom or in the hallway. You probably will not even see the judge on these occasions. Alternatively, both you and your wife may be interviewed by the judge or a panel of attorneys acting as mediators.
These conferences serve two purposes. They force the attorneys for both parties to discuss the merits of the case, with the added benefit of receiving input from the judge. The other purpose is to deal with trial-related issues such as length of trial, order of evidence, stipulations (i.e. items that can be agreed on), etc. Often, both sides begin to fully realize the emotional and financial expenses of a trial during pre-trial conferences. This, in turn, may encourage them to approach negations more rationally. If negotiations develop further, more than one pre-trial hearing may be held. Always bear in mind that attorneys are invaluable in advising their clients, but in the end it is the individuals who must agree to accept the terms of a settlement.
In most cases my firm handles, these conferences do not produce a settlement, especially where a custody dispute exists. This may be so because we frequently represent dads and moms do not voluntarily surrender primary or even joint custody. However, under the right circumstances, with the right judge, these conferences can be very effective and helpful and may produce a settlement. For a settlement conference to be productive, each party must be willing to rationally assess its chances of success and must not be blindly riveted to its positions. Additionally, the parties must not have fundamentally divergent views on the basic facts. Obviously, the judge cannot be helpful if attorneys present radically different versions of what the evidence will be. For the settlement conference to succeed, the judge must be without bias (particularly as to gender), cautious in forming an opinion, but sufficiently decisive to form one where appropriate, and adequately emboldened to express it without concern for offending either attorneys or litigants. In other words, Solomon would do nicely.
This online custody guide is adapted with permission from “Civil War: A Dad’s Guide to Custody” (266 pages, softcover) – available in our online store.