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Good Intentions, But Bad Consequences

Pending Amendments to the Family Part Rules of Court

For over 25 years our Family Courts have utilized Early Settlement Panels as, perhaps, the most effective means of helping divorce litigants settle their cases. The Settlement Panels are staffed with two voluntary attorneys who read extensive written submissions and then meet with and hear the arguments of the Attorneys for the parties. The Panelists then meet with the parties and make settlement recommendations.

Statistics show that almost 60% of the cases submitted to the Early Settlement Panels, do, in fact , settle very consistently with the Panelists' recommendations. If not accepted, the Panel's recommendations are confidential and can not be subsequently communicated to the Trial Judge without the mutual consent of the parties.

In a well intended effort to discourage litigants from unreasonably rejecting the Panel's recommendations., recently proposed amendments to the Court Rules would allow the disclosure of the Panelists' recommendations relevant only to the issue of Counsel Fees if the recommendations are rejected by one of the parties and, as a result the case proceeds to trial.

A seemingly logical suggestion which will not work and will, in fact, discourage the effective use of Early Settlement Panels.

Why? Because divorce cases have no clear 'winner' or ‘loser'. The issues in a divorce case are not easily or clearly defined as to who 'won' and who 'lost'.

Thus, a Panel may make a recommendation on Issue A which is perfectly sound and should have accepted but for the fact that it was related to Issue B which could not be resolved.

For a Trial Judge to have to go reconstruct the Panel's recommendations and make a determination as to who reasonably accepted the recommendations and who unreasonably rejected them creates 'a trial within a trial'.

The statistically fact is that Early Settlement Panels are highly effective and useful tools of settlement for all divorce litigants.

Do not tamper with them—they work well and effectively—they require candid and confidential exchange of information and changes such as those proposed have only the downside risk of deceasing their effectiveness.

Full post as published by New Jersey Law Blog on April 13, 2009 (boomark / email).