During the discovery stage of the divorce process, the parties are able to ascertain relevant information from the other spouse, answers to interrogatories are provided, documents proving asset values are submitted, depositions may be taken, and most importantly, case information statements (CIS) are filed, which itemize assets, liabilities, each parties’ monthly expenses and past and present income levels. After the case has had an opportunity to go through the discovery stage, the case is ready to go before the court for an early settlement panel.
Many litigants do not know what to expect when it comes to this mandatory court appearance, often referred to as the ESP date. It is a process that all courts in this State require for family-related matters in order to give the parties a chance to put forward a settlement proposal in writing and see, often for the very first time, exactly what their spouse is looking to obtain in settlement. That is, an articulated statement as to a party’s position with respect to the various issues (i.e., child support, alimony, division of assets and liabilities and counsel fees). Note that the panel does not address the issues of custody and parenting time.
Settlement proposals are exchanged in advance of the ESP date, which includes each parties’ suggestion of how to resolve the contested issues. On the day of the settlement panel, parties involved in several cases will meet with a judge of the family court for about 10 minutes of preliminary explanations regarding what this mandatory court process is and what it seeks to accomplish. The judge will explain to all of the cases scheduled that morning that the settlement panel is comprised of two or three (depending upon the county) experienced, volunteer matrimonial attorneys, who assist the parties in essentially “predicting” what a judge would do if their matter were to continue through to a trial. Certainly, the attorneys on the panel are not provided with the same amount of information about the case as would a judge at trial, but the attorneys on the panel review the proposals submitted to them, which typically include the parties’ detailed case information statements. Additionally, counsel for each party has an opportunity to “present their respective case” before the panel analyzes the outstanding unresolved issues.
Once the parties’ attorneys have had a chance to summarize their client’s case to the panel, during which time the parties themselves are usually not present, the panelists then confer amongst themselves, discussing the presentations and all settlement possibilities. The panel formulates a recommendation of the unresolved issues and then explains its settlement suggestions to the parties and counsel. When the panel’s recommendation is rendered, the parties will have a chance to ask questions. Experience shows that panel recommendations are usually quite consistent with what might be expected from a judge after a lengthy and costly trial.
Although the panel’s recommendation is confidential and non-binding, the parties are encouraged to adopt that recommendation. If the recommendation is accepted by the parties, then they may leave the courthouse that day with a final Judgment of Divorce, after placing their settlement terms on the record before a judge. It should be noted that the parties also have the option of accepting only some of the terms recommended by the panel. Some parties elect to use the panel recommendation as a framework from which to begin more intensified negotiations. Although not an ideal outcome, the parties also have the option of completely disregarding the panel’s recommendation and leaving the courthouse in no better place than they were before. However, no party or attorney is permitted to exit the courthouse until they return to the judge assigned to their case and advise that they have, or have not, settled their case. It is at this time that the judge Orders the parties to attend economic mediation (in most counties) and sets down a near-future date for Intensive Settlement Conference and Trial, assuming that no settlement was reached.
The purpose of this process is to afford the parties a vehicle by which they are forced to come together and put forward their respective positions. The advantage of settling on the ESP date is obvious: if the parties settle, they can get divorced that day and cut the case short, saving an extraordinary amount of time, effort, money and emotional anguish. Even more important, they will experience closure on their matter and may thereafter move on with their lives. If, however, the parties do not settle their case on the ESP date, the process can sometimes extend for another several months, causing attorney fees and court costs to continue. There are some complex cases which will not settle at the ESP date simply because expert reports or other pertinent discovery is still outstanding. Such cases may nevertheless benefit from an ESP appearance because it brings them to the settlement table to, at a minimum, determine how far apart their overall respective positions are in reality. For the simpler cases, however, failing to reach settlement on the ESP date could create major financial strain upon some litigants who cannot afford many more months of litigation. The money saved by settling the divorce case could be better applied toward children’s education funds, purchasing a new home or even taking a much needed vacation.
The benefit of settling the divorce matter on the day of the Early Settlement Panel is clear and compromises made by both sides would likely serve each party well.