The Next Court Appearance: What is the Early Settlement Panel?
Once discovery has been completed, or in some cases, largely completed, the court will schedule your case for an Early Settlement Panel (ESP). The ESP is a required court appearance where both parties and their lawyers appear before a panel consisting of two lawyers. The panelists are experienced family lawyers who volunteer their time to try to help the parties reach a settlement of all the financial issues. The Panel DOES NOT address the issue of custody and parenting time. The lawyers have no involvement in the case, but serve in counties where they are familiar with the judges who will hear your case and can provide insight into the potential outcomes after a trial.
How does the program work?
The purpose of the ESP is to allow each side to present their case to the panel and to have the panel look at the case from the prospective of what a judge might decide after a trial. The goal is to help the parties avoid costly litigation if possible. Both lawyers prepare an ESP statement beforehand, which consists of the background, outline/summary of the outstanding issues, noting any issues that may already be resolved, as well as each party’s position on all outstanding issues, such as child support, alimony, equitable distribution, the apportionment of debts, the treatment of the marital home, etc. Each attorney will provide their client’s Case Information Statement with the ESP statement and any additional financials that may assist the panelists in making recommendations, including appraisals or expert reports received during the discovery process. If any orders have been entered, they should also be provided.
What happens on the day of the ESP?
On the date you appear for the ESP, the panelists will hear both sides of the case. They will typically meet with the lawyers first and then with the lawyers and their clients. The panelists will then discuss the case in private. When they have a recommended settlement, they will call the parties and their lawyers back into the room to present them with the settlement recommendation. The recommendation will be based upon the panelists’ interpretation of the law, the fairness and the equitable factors in your case, and their opinion, based on their experience, of how the judge will likely rule if the case is tried. The procedure is informal, like mediation, and there is no record of what occurs. And, just like mediation, the entire process is confidential.
What if I do not accept the recommendation of the panel?
The recommendations made by the panelists are confidential and are non-binding. So, you can choose to accept all, part or none of the recommendations. The sole purpose of the ESP is to try to provide the parties a better idea of how their case can be settled before a trial. The judge assigned to your case will not know what the panel recommends and you still have the right to proceed to trial if that is your choice. The next step in the process if all recommendations are not accepted is to report to the judge assigned to your case and the judge will enter an Order sending the parties to economic mediation. Both parties will select a mediator and pick a date for the first mediation session for the order to be entered.
What happens if we accept the recommendation of the early settlement panel?
If both parties accept the recommendation of the ESP panel, they can get divorced that day if they agree to put the terms of the settlement on the record. Or, the parties may already have a draft agreement with them that day that they can finalize, sign and get divorced with the written agreement in place. Otherwise, the parties can advise the judge that the case is settled and select a date to come back with a signed written agreement to get divorced.