The majority of family law cases that go to court end up agreeing to a settlement. One mechanism that can help parties get to a settlement more efficiently is the offer to settle itself.
Either party to family law litigation can make an offer to settle an ongoing case at any time during the court process. Parties are not limited to only one offer and are not required to make an offer that would settle all issues. Parties can make offers that have costs consequences, or do not, that are open for a specific period, or open until trial.
The rules around offers to settle are designed to encourage them. Even if there is a contentious or novel issue that really requires the court system to resolve, it’s often the case that the parties can resolve many of the other disputes between them, and limit the number of points where judicial intervention is required.
Rule 18 of the Family Law Rules provides structure around offers to settle, including making, accepting, and withdrawing offers. Beyond the language of the rule, lawyers will have an approach that will take into account both the goals of settling the case and setting up a strong argument on costs.
If a case or part of a case does not end up settling, offers to settle are relevant to the determination of costs. “Costs” means that after a motion or trial is heard, a court can order one party to pay a portion of the other party’s legal fees. One of several factors a court will look to is whether any reasonable offers to settle were made. If a party beats his or her offer in court, that will be a very significant point in a costs argument.
For an offer to have costs consequences, it must meet specific requirements set out in Rule 18 around timelines, and there are some requirements about the form of the offer. For example, it needs to be signed by both the party and the lawyer, and the terms should be severable to the extent that it’s possible to sever them so that an offer on one issue can be accepted without the other party having to accept the offer on another issue. Ultimately the court retains a lot of discretion in determining who pays costs and how much is ordered and on what kind of schedule.
If you have a matter in litigation, your lawyer will be discussing an offer to settle with you. It’s an essential part of a litigation strategy to have an aggressive and skillfully crafted offer so that it can be used to maximize a costs award down the road. Given that most cases will end up settling, it’s also just a sensible thing to do. Cases settle on specific terms, and drafting an offer to settle gives a party the opportunity to craft those terms, or at least start a conversation about them.
As most cases will settle, it makes sense to keep settlement negotiations going even as litigation proceeds. Offers to settle are a key part of both those settlement negotiations and litigation strategy for those cases that end up at a motion or trial.
If you need a lawyer for your settlement process or want advice regarding your offer of settlement, do not hesitate to reach out to our family lawyers here at Mann Lawyers.
This blog post was written by Jenny Johnston, a member of our Family Law team. She can be reached at 613-566-2081 or at jenny.johnston@mannlawyers.com.
