Thursday, February 28, 2008

Informal Settlement Conference and Signing of Documents

Often parties feel that a case would settle if only they could discuss matters directly with the other party or spouse. Sometimes we are asked by clients whether they can or should meet directly with the other party. In other words – can the Husband and Wife meet to talk about settlement without their attorneys present?

As a general rule, we remain neutral about informal discussions when initiated by the parties themselves. However, we sometimes actively discourage such direct, face-to-face communications, depending upon how emotional a case has become or other factors, to prevent discord and unintended consequences. For example, one party may feel that the other is trying to take control of the informal discussions. This can polarize the situation and make matters worse. Once there is mistrust between the parties, attorneys often spend more time trying to undo emotional damage, rather than discussing resolution of the parties’ legal issues. When there is much at stake (such as when children or divisive and emotional issues are involved), then it is our general belief that settlement meetings should be handled through the parties’ attorneys or by a trained and experienced mediator.

It is important to understand that attorneys can never discuss matters directly with an opposing party who is also represented by an attorney. See State Bar Rules, Rules of Professional Conduct, Rule 4.02 (a). This rule also prohibits attorneys from making settlement offers through their client directly to the other party – what cannot be accomplished directly cannot be done indirectly. However, attorneys cannot prevent a client from talking about their case directly to the other party.

In short, the parties are certainly allowed and may agree to informal settlement conferences without their lawyers present. However, you should never do this if you feel that you may be in danger, if there is a protective order, or if you cannot speak to one another in a respectful and courteous manner. Keep in mind that you may not communicate with the other party by the use of “vulgar, profane, obscene or indecent language or in a coarse or offensive manner, with the intent to annoy or alarm the other,” Tex. Fam. Code § 6.501 (a) (1), and you may not “threaten . . . to take unlawful action against any person, intending by this action to annoy or alarm the other,” Tex. Fam. Code § 6.501 (a) (2).

One final point, if you do agree to meet, we strongly advise against signing anything. You can always contact your attorney and explain your understanding of the informal settlement. You can also take your own notes. However, you should understand that if you sign a document – no matter how “informal” it may seem – you may find yourself bound to an agreement that is not in your best interest, or that may actually prevent you from taking certain actions in the future. Thus, you should always consult your attorney and have the attorney review any document before signing.