| 1 |
Settlement;
Generally |
|
| a) |
It is
fundamental that the settlement of litigation ranks high in the
public policy of this state. |
Ziegelheim
v. Apollo, 128 N.J. 250, 263 (1992);
Nolan v. Lee Ho, 120 N.J. 465,
472 (1990);
Judson v. Peoples
Bank & Trust Co., 25 N.J. 17, 35 (1957);
Lahue v. Pio Costa, 263 N.J.Super. 575,
595 (App.Div.), certif. denied, 134 N.J. 477
(1993);
American Home
Assur. Co. v. Hermann’s
Warehouse Corp., 215 N.J.Super. 260,
265-66 (App.Div.1987), aff'd 117 N.J. 1 (1989);
Dep. of Pub. Advocate
v. N.J. Bd. of Pub. Ut., 206 N.J.Super. 523
(App.Div.1985);
Pascarella v.
Bruck, 190 N.J.Super. 118, 125 (App.Div.), certif.
denied, 94 N.J. 600 (1983);
Honeywell v. Bubb, 130 N.J.Super. 130,
135 (App.Div.1974);
Jannarone v. W.T.
Co., 65 N.J.Super. 472, 476 (App.Div.), certif.
denied, 35 N.J. 61 (1961). |
| b) |
As such,
settlements should be encouraged. |
Ziegelheim
v. Apollo, supra, 128 N.J. at 263;
Judson v. Peoples
Bank & Trust Co., supra, 25 N.J. at 35. |
| c) |
Settlements
should be encouraged, especially in family law actions. |
Davidson
v. Davidson, 194 N.J.Super. 547 (Ch.Div.1984). |
| d) |
The goal
of the policy which encourages settlements, however, is not the
salutary effect of settlements on our overtaxed judicial and
administrative calendars, but the notion that the parties to
a dispute are in the best position to determine how to resolve
a contested matter in a way which is least disadvantageous to
everyone. |
Dep.
of Pub. Advocate v. N.J. Bd. of Pub. Ut., supra, 206 N.J.Super. at
528. |
| |
|
|
| 2 |
What
is Impermissible when the Trial Judge Conducts the Conference? |
|
|
|
Courts
play an important role in effecting settlement. However, that
role must always be exercised appropriately and with full recognition
that the court must remain fair and impartial in order to ensure
that the settlement is wrought by the parties, not by the court. |
75 Am.Jur.2d Trial §§ 287
at 505 (1991). |
| a) |
Court
should not work to coerce or compel litigant to make settlement. |
In
re NLO, Inc., 5 F.3d 154, 157 (6th Cir.1993);
Newton v. A.C. & S.,
Inc., 918 F.2d 1121, 1128 (3d Cir.1990);
Cropp v. Woleslagel, 207 Kan. 627,
485 P.2d 1271, 1276 (1971). |
| b) |
Courts
should not exert undue pressure on litigants to settle, especially
in the context of a divorce settlement. |
Peskin
v. Peskin, 271 N.J. Super. 261 (App. Div. 1994);
Schunk v. Schunk, 84 A.D.2d
904, 446 N.Y.S.2d 672, 672-73 (1981);
Chomski v. Alston
Cab Co., Inc., 32 A.D.2d 627, 299 N.Y.S.2d
896, 897 (1969);
Wolff v. Laverne, 17 A.D.2d
213, 233 N.Y.S.2d 555, 557 (1962). |
| c) |
Courts
should not use the threat of sanctions to force the settlement
of a case. |
Shaffer
v. Farm Fresh, Inc., 966 F.2d 142, 146 (4th Cir.)
(1992);
Kothe v. Smith, 771 F.2d
667, 669 (2d Cir.1985);
Del Rio v. Northern
Blower Co., 574 F.2d 23, 26 (1st Cir.1978). |
| d) |
The law
does not countenance attempts by courts to coerce settlements
and, therefore, courts must avoid the appearance (as well as
the reality) of coercion of settlements from unwilling litigants. |
In
re Ashcroft, 888 F.2d 546, 547 (8th Cir.1989);
D.L. Spillman, Jr.,
Annotation, Propriety and Prejudicial Effect of Suggestion
or Comments by Judge as to Compromise or Settlement of Civil
Case, 6 A.L.R.3d 1457 (1966). |
| e) |
Trial
court has duty to exercise highest degree of patience and forebearance
with any party having trouble deciding whether to accept settlement. |
Peskin
v. Peskin, supra, 271 N.J. Super. at 278. |
| |
|
|
| 3 |
What
is enforceable? |
|
| a) |
A settlement
between parties to a lawsuit is a contract like any other contract. |
Nolan
v. Lee Ho, supra, 120 N.J. at 472;
De Caro v. De
Caro, 13 N.J. 36, 44 (1953). |
| b) |
Settlement
agreements must be voluntarily made and freely entered into. |
Pascarella
v. Bruck, supra, 190 N.J.Super. at 124. |
| c) |
If a settlement
agreement is achieved through coercion, deception, fraud, undue
pressure, or unseemly conduct, or if one party was not competent
to voluntarily consent thereto, the settlement agreement must
be set aside. |
Nolan
v. Lee Ho, supra, 120 N.J. at
472;
De Caro v. De
Caro, 13 N.J. 36, 41-42, 44 (1953);
Honeywell v. Bubb,
supra, 130 N.J.Super. at 136-37. |
| d) |
Matrimonial
agreements need not necessarily be reduced to writing or placed
on record to be enforceable. |
Harrington
v. Harrington, 281 N.J. Super. 39 (App. Div. 1995);
Bistricer v. Bistricer, 231 N.J.Super. 143,
149 (Ch.Div.1987). |
| e) |
Although
it has been remarked that matrimonial agreements which are fair
and just, fall within the category of contracts enforceable in
equity, the basic contractual nature of such agreements has long
been recognized. |
Petersen
v. Petersen, 85 N.J. 638, 642 (1981);
Massar v. Massar, 279 N.J.Super. 89,
93 (App.Div.1995). |
| f) |
Matrimonial
agreements are enforceable, subject to Lepis and R. 4:50-1
considerations as well as considerations of unconscionability,
fraud or overreaching. |
Massar
v. Massar, 279 N.J.Super. 89, 93 (App.Div.1995). |
| g) |
Where
the parties agree upon the essential terms of a settlement, so
that the mechanics can be fleshed out in a writing to be thereafter
executed, the settlement will be enforced notwithstanding the
fact that the writing does not materialize because a party later
reneges. |
Lahue,
supra, 263 N.J.Super. at 596;
Davidson, supra, 194 N.J.Super.
at 549-50. |
| h) |
A contracting
party is bound by the apparent intention he or she outwardly
manifests to the other party. It is immaterial that he or she
has a different, secret intention from that outwardly manifested. |
Brawer
v. Brawer, 329 N.J.Super. 273 (App. Div. 1995);
Hagrish v. Olson, 254 N.J.Super. 133,
138 (App.Div.1992);
Tung v. Briant
Park Homes, Inc., 287 N.J.Super. 232, 239 (App.Div.1996). |
| i) |
Objective
manifestations of intent are sufficient and controlling. |
Leitner
v. Braen, 51 N.J.Super. 31, 38 (App.Div.1958) (stating
that an expressed intent, and not the so-called real intent
of a party controls.) |
| j) |
Property
settlement agreement between spouses is enforceable only if it
is completely voluntary, fair, and equitable, and therefore,
it is subject to amendment by the court when changed circumstances
make its enforcement inequitable. |
Brawer
v. Brawer, 329 N.J.Super. 273 (App. Div. 1995);
Lepis v. Lepis, 83 N.J. 139,
148 (1980);
Schlemm v. Schlemm, 31 N.J. 557,
581-82 (1960);
Smith v. Smith, 72 N.J. 350
(1977). |
| k) |
Once issues
of equity have been removed from a case, the enforceability of
a settlement agreement is subject to the same standards as that
in any other case. |
Berkowitz
v. Berkowitz, 55 N.J. 564, 569 (1970);
Harrington, supra, 281 N.J.Super. at
46;
Rolnick v. Rolnick, 262 N.J.Super. 343
(App.Div.1993). |
| |
|
|
| 4 |
Things
to Settle, Short of Settlement |
|
| a) |
The admissions
or stipulations of the parties with respect to any cause of action
pleaded or material fact asserted by plaintiff or defendant-counterclaimant. |
|
| b) |
The factual
and legal contentions of the plaintiff or defendant-counterclaimant,
to the extent resolution is sought from the Court. |
|
| c) |
The factual
and legal contentions of the plaintiff or defendant as to non-liability
and affirmative defenses. |
|
| d) |
All claims
as to any damages — if appropriate — and the extent
of injury, and any admissions or stipulations with respect thereto;
and this shall limit the claims thereto at the trial. |
|
| e) |
Any amendments
to the pleadings and — where necessary — the time fixed
within which such amended pleadings shall be filed and served,
etc. |
|
| f) |
A specification
of the issues to be determined at the trial, including all special
evidence problems to be determined at trial and issues, not raised
by the pleadings, which occur to the trial judge, with an appropriate
stipulation in the event if the attorney concerned does not wish
to advance any such issue. |
|
| g) |
A specification
of the legal issues raised by the pleadings which are abandoned
or otherwise disposed of. If a ruling is sought on any such legal
issue, the matter should be set forth with directions that formal
motion be made thereon at a later time. |
|
| h) |
A list
of the exhibits marked in evidence by consent. |
|
| i) |
Any limitation
on the number of expert witnesses. |
|
| j) |
Any direction
with respect to the filing of legal briefs, position papers,
Pre-Trial Memoranda, etc. A request by the court for legal briefs
should be included where the resolution of any general legal
problem is not clear, or where special problems of evidence exist,
as noted by the attorneys or on inquiry by the judge. |
|
| k) |
In special
circumstances the order of opening and closing to the jury at
the trial in a Brennan v. Orban-type domestic tort case. |
|
| l) |
Any other
matters which have been agreed upon in order to expedite the
disposition of the case. |
|
| m) |
In the
event that a particular member or associate of a firm is to try
a case, or if outside trial counsel is to try the case, the name
should be specifically set forth. |
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|
| 5 |
Settlement
Techniques & Approaches to Breaking Deadlocks by the Court. |
Jurists
vary sharply on the advisability or propriety of some of these
methods.
Timing with respect to nearness of conference
to Trial or age of case is sometimes controlling. |
| a) |
Conference
with attorneys alone. |
|
| b) |
Conference
with attorneys and parties. |
|
| c) |
Caucusing
with one attorney at a time. |
|
| d) |
Caucusing
with one attorney together with respective party at a time. |
|
| e) |
Conferencing
in various combinations with experts, guardians ad litem, attorneys
for children, etc. |
|
| f) |
Conferencing
on-the-record. |
|
| g) |
Conferencing
off-the-record. |
|
| h) |
Referring
out to previously uninvolved Judge for settlement conference. |
|
| i) |
Conferencing
with Agenda specified in advance. |
|
| j) |
Conferencing
with ad hoc Agenda. |
|
| k) |
Asking
for various proffers at conference. |
|
| l) |
"Tipping
hand" concerning inclinations on various issues at conference. |
|
| m) |
Creating
and fostering appropriate bargaining ethos at conference. |
|
| n) |
Noting
impressions concerning R. 5:3-5 (C)(3) reasonableness
and good faith positions of parties at the conference. |
|
| o) |
Eliciting
sealed settlement offers at conference; using R. 5:3-5
(C)(3) as analogue to Offer of Judgment Rule. |
|
| p) |
Using
Position Papers, Trial Memoranda & Legal Briefs as adjunct
to Settlement Conference. |
|
| q) |
Referring
matter to ADR, etc. |
|
| r) |
Using "Compound
Property Settlement Agreement" — incorporating agreed-upon,
plus alternative competing terms of proposed settlement — as
a "Single Negotiation Text;" a vehicle for focusing
problem solving and negotiating settlement. |
|
| s) |
Deciding
to bifurcate Trial as a strategy for facilitating settlement
of later half. |
|
| t) |
Asking
for settlement at the beginning of each day of Trial. |
|
| u) |
Using
mid-Trial continuances as a vehicle for promoting eleventh-hour settlement
efforts. |
|
| v) |
Asking
for consensual value-weighting of objectives from respective
parties during caucus. |
|
| w) |
Asking "Why
do you want what you want" questions during conference
to reveal additional problem-solving data. |
|
| x) |
Asking "What
if we can come up with a different way of getting what you
want" questions to escape from a zero-sum game. |
|
| y) |
Asking
parties if they are willing to accept the risks of an outcome
that they have chosen not to cooperatively create. |
|
| z) |
Exploring
the possibilities of addressing some of the case dynamics and
issues prospectively through follow-up, rather than forcing the
decision today. |
|
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