The progress of a client’s case under family law depends on the facts, the personalities of the client and of the opposing party. Playing important roles in the dispute are factors, like the client’s wishes, the interactions of the two lawyers on both sides, and the perceptions of both the lawyer and client of the best way to achieve the client’s goals. Not to be left out in this list are the benefits, values, and costs in continuing with, or abstaining from, a court proceeding.
It is for these reasons the potential consequences of negotiating or failing to negotiate is to be driven home relentlessly to the client. All circumstances of the case, specially the most important condition of status quo are to be considered thoroughly. It would be essential to find out which party is more motivated to try to change the status quo, as well as the costs, both financial and emotional, of starting litigation without having first explored all avenues of settlement. There are times when it is preferable to engage in negotiations only after a court case has been initiated (there is also a possibility that the opposition would become more stubborn in that event). Anyway, it opens up the possibility of a negotiated agreement, failing which the party motivated to change the status quo has the benefit of knocking at the doors of justice. If negotiation is started prior to litigation, it offers the best chance of resolving all issues without the additional stress, time, and expense of preparing court documents. It is necessary to keep in mind that if no settlement is reached, time will be lost as a court case is now to be commenced.
Time, as in every aspect of life, is of immense importance here. It is to be kept in mind that meaningful negotiations take time and have an impact on almost every issue in family law. So, there is the length of time a recipient (could be your client) goes without support, the status quo length of time a parent goes without seeing his or her child, and the length of time before a party’s rights to claim an equalization payment of family property expires. In matters concerning family law, the longer life continues without a change in the status quo, the more likely that person’s case will either be strengthened or weakened, depending on the facts and his or her perspective.
It is for the lawyer to tell the client what possibly could be obtained from a judge in the applicable court, and explain the cost and length of time it takes to get a judicial opinion or determination. It is imprudent if not downright foolish to spend eight months negotiating and then, when something happens, start a court case and attempt to convince a judge to bypass the normal requirement of a case conference on the grounds that something urgent has occurred. As opposed to this, keeping in mind that it takes two months from the time the Application is issued to the first case conference, the lawyer would temper the advice in terms of whether or not negotiations should be pursued first or only after the proceeding has been commenced. In that event, it would perhaps be advisable to initiate the lawsuit first and use the weeks preceding the case conference to try and negotiate all issues so that the Application gets stalled.
If without even attempting negotiation proceedings, commencing litigation would result in the opposing side usually taking great offence to that (justifiably, from their point of view). In times like this, the case becomes more difficult to resolve than it would have been otherwise. Such lapses are to be avoided as far as possible, and it is therefore incumbent on the counsel to emphasize the cost-benefit analysis of pursuing or refraining from negotiating with the client before any concrete steps are taken.
If negotiation does not produce any result, and alternative dispute resolution is not pursued, then one party could be expected to commence a court case to change the status quo. In the proceedings that follow, the case conference is the most important step in family law litigation. Excepting certain situations, no motion could be heard nor could any notice of motion be served until a case conference dealing with the substantive issues in the case have been completed. This provision does not apply when there is a situation of urgency or hardship or a case conference is not required for some other reason in the interest of justice. The purpose of a case conference is to give the litigants and their lawyers a chance to hear a judge’s view on the case at an early stage, before thousands of dollars are spent on motions and other expensive steps. By bringing the issues out among the litigants with a judge explaining points of law, an early resolution of disputes is hoped for. Briefly, the agenda is as follows:
- Finding out the possibilities of settling the case – A case conference gives the parties a chance to see how far apart they are on the major issues. All this is brought about by a judge who is willing to explain how he or she sees the law applying to the facts of the case, including any particularly unusual or difficult facts and the way such facts might be perceived at a motion or trial.
- Pointing out the issues in dispute – Often the judge makes the parties realize that what they previously thought was an impassable issue is resolvable. Equally possible is that what was once taken for granted as not being in dispute may turn out to be very contentious.
- Finding ways to resolve disputed issues – Proposing realistic and achievable solutions that are acceptable to both parties, a case conference judge re-frames an issue so that the parties see it and their role in a new light, making it easier for settlement.
- Financial disclosure is made in full – Ensuring that full and complete financial disclosure is exchanged, without which settlement is impossible.
- Showing admissions that may simplify the case – A good listening judge gets the parties and their lawyers to talk openly about their true underlying motivations, which help identify common interests tending to generate settlement.
- Fixing the date for the next step in the case – A judge discusses whether the case conference has been successful and if so, whether a motion or a settlement conference will follow.