March 28, 2014 By: Erin Lepine
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In any litigation, offers to settle play a very important role. In the years that I have been practicing family law however, I have been surprised to discover that many clients are cautious to send an offer to settle.  It is very common that the first reaction I get from a client when I mention the possibility of sending an offer to settle is – “why would we do that?”. There appears to be a feeling among family law clients that an offer to settle is akin to showing your hand in a poker game – why let the other party know where you can or are willing to go?

Realistically, a family law dispute is nothing like a good game of poker. In poker, we don’t want the other side to know the truth of our hand, whereas in family law, full disclosure of all of our evidence and supporting facts is required well in advance. The truth is, there are no shocking moments in a court room where a major piece of evidence is produced for the first time in front of the judge. In family court, at least, our cards have been shown from the moment they were dealt.

The real strategy is what you do with those cards to produce the best result possible for your client.

These are my top five reasons why offers to settle play a pivotal role in the strategy of a family court action.

1. Offers to settle help advance the case preparation

An offer to settle is not something that your lawyer will draft in a matter of minutes. To craft a good offer to settle, you and your lawyer will spend time considering the issues and the evidence you have to support each issue in detail. This exercise will help you determine where you may be lacking evidence and lead you into the direction of collecting that missing evidence before the other party starts asking for it. This preparation will also force you to consider your own positions, understand potential outcomes based on the current evidence, and help you determine where your bottom line is.

2. Offers to Settle can start settlement discussions

Just because offers to settle can help you determine what your bottom line position is, does not mean that the first offer you send will reflect that bottom line. Sometimes, a case needs a good offer to be sent out in order to kick-start the settlement discussions. Particularly in family law, we often deal with so many issues all at once, and each issue comes with a plethora of documentation, that clients don’t know where to even begin with settlement discussions. By thinking each issue through clearly enough to be able to craft a good offer to settle, and sending that offer off to the other side, it can really hone in on the issues and get the discussion flowing on a dispute that has remained in a stale mate for several months.

3. Offers to settle can narrow the issues in dispute

Once discussions get parsed into individual issues within an offer to settle, this can result in some of the less contentious issues being resolved, taking away the clutter (and sometimes emotion) that can hold up negotiations on the bigger and more important issues that actually require greater attention by the lawyers and clients. The effect of this is that the time and money you are investing into your family law dispute will have a larger impact and greater return.

4. Offers to settle can preserve a costs argument

The cost of litigating is expensive, however, it is possible for successful litigants to get a portion (and in rare cases all) of their legal fees back from the unsuccessful party. Costs awards are not guaranteed in any situation, so it is important that litigants be able to show to the Court that they have acted reasonably throughout the litigation process. Part of the assessment that a judge will do when considering the issue of costs is to assess what offers have been made by the parties, when they were made, and how those offers compare to the final result in the case.

It is also important to note that the failure to make an offer to settle is considered “unreasonable behaviour” in litigation and can impact the ability to get a costs award if you are the successful litigant, or the amount of a costs awarded against you if you were unsuccessful.

Alice Weatherston will be presenting on Costs in Family Court at the upcoming CCLA Family Law Institute in Montebello on April 11, 2014. Stay tuned for her blog and article on costs, as I am sure she will be imparting her knowledge here as well.

5. Offers to Settle may actually lead to a resolution of all of the issues.

When sending an offer to settle, it is important to understand that if accepted by the other party, the offer becomes binding. That being said, if you are sending the offer it is because you and your lawyer have weighed all of the factors and have jointly decided that the offer would be a good resolution for you under all of the circumstances. Though many lawyers will tell you that the best reason to make an offer to settle is to preserve your costs argument for a later date, for most clients, it is likely that the best reason to make an offer to settle is that if accepted, the litigation may come to an end and you will get a result that you are happy with, because you and your lawyer proposed it.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Family Law