The Courage to Settle

Settlement or Court Litigation

A quick check of the dictionary indicates that the word “settle” has many meanings.  Settle can mean, among other things, to agree, covenant, compensate, reconcile, mend, compromise, reside, or verify.   In the legal world, settle or settlement means to resolve a dispute. The basic calculus addressing the pros and cons of a proposed settlement boils down to resolving a dispute through negotiation with an opponent or by way of a judicial decision.

To begin, settlement does not mean capitulation.  If one party’s position is so rigid, resolution by court may be appropriate.  That being said, the contrast between negotiating and the uncertainty in determining a court outcome is not usually so stark.  Settlement, particularly in divorce or custody cases, is made up of many shades of gray.

It is also useful to understand that a court decision is inherently limited by the boundaries of the law.  Judges are prohibited from granting relief for anything other than what is available to a party through statute or case law.  These boundaries can diminish the creativity of parties to find a solution to the problem that they really may wish to address.  Similarly, the emotional concerns of parties are rarely dealt with adequately when a dispute is resolved through a judicial decision, especially in fights that involve members of a family.  Resentments that are not dealt with because of the limitations of the litigation process can continue for generations.

The high cost of conflict is yet another factor to consider when evaluating a settlement proposal.  While fees for attorneys and other experts that may be needed to present a case properly initially come to mind, the high cost should also be measured in terms of time and energy.  Often, a “Greek chorus” of friends or relatives will voice their opinions on what should be done or whether a settlement is a good or bad idea.  While such people are generally well-meaning, it is typically not their time, energy, or funds that are involved in the case.

Folk wisdom tells us that a good settlement occurs when everyone is a little bit unhappy.   It takes courage to make a final decision to settle and to set aside the opportunity to air grievances before an impartial court.  For individuals dealing with divorce and custody, a painful re-organization of their families, a reasonably crafted settlement can mean achieving a measure of peace to move forward with life.

The Costs and Benefits of “Do It Yourself”

As a mediator, I have had the experience of helping people address their concerns during difficult times when their families are in transition.  I have repeatedly observed how people in the midst of emotional distress can lose perspective and hurt themselves by their inability to comprehend what is happening from various points of view.  It is my professional goal to listen actively to understand what each party is saying and to offer each of them empathy and an opportunity to consider options that will realistically address their concerns. It is not unusual that in the midst of pain and confusion, parties may not be able to see alternatives that may be useful in solving what may seem to be insurmountable differences.

It is not a big revelation to notice that the widespread use of the internet has hugely changed the way all of us operate.  With easy access to information through the world wide web, we can readily learn new things and become quite self-sufficient in managing our lives.  As we evaluate how to allocate our resources – both time and funds – one of the things to be considered is whether or not we will engage in “do it yourself” or engage in hiring someone to assist us with important transactions. While many believe that they can manage a “do it yourself” agreement, the potential cost of overlooking elements of an agreement and potential misunderstandings through poor communications may impede the achievement of a mutually acceptable and durable agreement. This is especially consequential in relation to impacts on health, finances, or children. Combining research on the internet as a starting point to gather information and then engaging expert assistance may be the most useful approach to conflict resolution.