March 2018
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Be Realistic (and Reasonable), But Don’t Cross Your Line In the Sand

By Brenda L. Storey, Esq.

The best advice I can give anyone approaching mediation is to be realistic, which includes being reasonable, but not give just for the sake of settling.   I recently completed a case that spanned close to seven months, and ended in a lengthy and expensive trial.   The ruling, achieved thousands of dollars later, was almost exactly what my client offered at the mediation that occurred within the first month.  The offer she made was not her ideal.  It included compromise on her end, but realistic compromise and it was realistic in that she would not get everything she wanted exactly as she wanted it.  The ruling was affirmation that she was on the right track, not being unreasonable in her positions throughout the case.    Unfortunately, the other side required a Court to rule, rather than accept what ended up proving to be a very fair offer.

The question is always, do you give more and more, in order to reach resolution?   By knowing what your line in the sand is as you approach mediation, this becomes pretty easy to navigate during mediation.   Saving money in the short run just to settle and not litigate now, can lead to even more future protracted litigation and expense as a result of a bad agreement.   As such, looking at what is realistic and reasonable requires a “big picture” overview.  If you truly do not believe parenting time outside of certain parameters will be in your children’s best interests, set that as your line in the sand and stand true to it.  If you have a dollar amount in mind that is justified by the facts and arguments, and you have thought through how to afford it, know that you can go up to that line.   The thinking and preparation in advance can keep you from caving at a tired, weak moment during mediation, and then having buyer’s remorse.

This is where a skilled attorney can be of greatest assistance to a client.  The attorney can advise the client as to the soundness as to current positions, as well as potential risks attendant to the current litigation and also to future, potential issues.  In the case I reference above, the opposing side’s final offer was likely the worst-case scenario for my client, and in fact maybe worse.   Accepting that offer would have been guaranteed at least, and litigation emotion and cost would have been saved in the present case.  However, accepting that offer would not provide much-needed peace to the children or my client.  Nothing would get better and, in fact, the risk was that things would actually deteriorate further.  That advice helped the client set her line in the sand, make her final offer at mediation without going past her line and, in the end, get a good ruling in line with her offer.   The current result was good, but the future looks bright as well, as real change was achieved sooner rather than later.