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  • Another Offer to Settle question....

    When proposing an Offer to Settle on a final basis can I state that the other party can accept the Offer to Settle in it's entirety as well as the option of accepting any of the issues addressed individually.

    If so, is this common practice?
    It seems that it would lend itself to both parties agreeing to/taking care of some issues that they are close to agreeing on.

    <!--[if gte mso 9]><xml> <w:WordDocument> <w:View>Normal</w:View> <w:Zoom>0</w:Zoom> <w:Compatibility> <w:BreakWrappedTables/> <w:SnapToGridInCell/> <w:WrapTextWithPunct/> <w:UseAsianBreakRules/> </w:Compatibility> <w:BrowserLevel>MicrosoftInternetExplorer4</w:BrowserLevel> </w:WordDocument> </xml><![endif]--> Is the following acceptable?....


    The <!--[if gte mso 9]><xml> <w:WordDocument> <w:View>Normal</w:View> <w:Zoom>0</w:Zoom> <w:Compatibility> <w:BreakWrappedTables/> <w:SnapToGridInCell/> <w:WrapTextWithPunct/> <w:UseAsianBreakRules/> </w:Compatibility> <w:BrowserLevel>MicrosoftInternetExplorer4</w:BrowserLevel> </w:WordDocument> </xml><![endif]-->Applicant offers to settle the following issues of these proceedings, on a final basis.
    The Respondent may accept the Offer in its entirety or any part individually.

    Offer to settle on **Costs** may only be accepted if the entire Offer is accepted.


    <!--[if !mso]><object classid="clsid:38481807-CA0E-42D2-BF39-B33AF135CC4D" id=ieooui></object> <style> st1\:*{behavior:url(#ieooui) } </style> <![endif]--><!--[if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin:0in; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:10.0pt; font-family:"Times New Roman";} </style> <![endif]-->

  • #2
    Originally posted by firhill View Post
    When proposing an Offer to Settle on a final basis can I state that the other party can accept the Offer to Settle in it's entirety as well as the option of accepting any of the issues addressed individually.

    If so, is this common practice?
    It seems that it would lend itself to both parties agreeing to/taking care of some issues that they are close to agreeing on.
    First of all, Microsoft word leaves some weird tags in posts

    Anyhow, have you compromised at all on the offer to settle? Imagine that there are issues A through F. If you relented on issues A through D in return for getting stuff E and F, then can't your ex just accept A through D, and then still fight E and F?

    Comment


    • #3
      Originally posted by Janus View Post
      First of all, Microsoft word leaves some weird tags in posts
      00ps!!!!! Sorry 'bout that.


      Originally posted by Janus View Post
      Anyhow, have you compromised at all on the offer to settle? Imagine that there are issues A through F. If you relented on issues A through D in return for getting stuff E and F, then can't your ex just accept A through D, and then still fight E and F?

      In nine months the only item resolved was that I be provided with a photocopy of health card, so I'm not holding my breath that any offer/issue will be accepted.
      TBH I would be thrilled if one or more parts of the offer was/were accepted as each one is satisfactory to me and I'd be willing to take my chances on any of the outstanding issues at a later date.
      There are some issues (Travel, Documentation) I will "budge" on and some I won't (custody) but I'm pretty sure as long as the Respondent is repped by her IMO negative advocate lawyer, nothing will be resolved by way of Offer to Settle.

      Comment


      • #4
        My honest opinion is that you make a full off to settle, rather than giving into anything and then having little else to negotiate with.

        If EX wants custody and will go to trail, then your offer can be used to award costs.

        Hope t hat helps.

        Comment


        • #5
          An offer is a tentative promise. If a party wants to "accept" parts of the promise and not others then what you have is a counteroffer which you would have to accept to make the agreement a binding contract. Therefore, if a party agrees to various clauses in the agreement those will remain the same, with the other unagreeable clauses changed to reflect the counteroffer.

          Comment


          • #6
            Originally posted by Gilligan View Post
            My honest opinion is that you make a full off to settle, rather than giving into anything and then having little else to negotiate with.

            If EX wants custody and will go to trail, then your offer can be used to award costs.

            Hope t hat helps.
            This may very well be good advice, but really it is a sad state that people hold back agreeing to reasonable things as a negotiation tactic.

            Ideally, people should quickly and formally agree to the things that are easy and obvious to agree to and then narrow down the list, dealing with individual issues separately and fairly, until a final agreement is made. In my view this should work because each and every aspect of a SA should stand on its own as reasonable.

            That being said, there should be a lot less struggle in separation - the basic ideas are there (divided marital assets evenly, raise the kids together and in their best interests, and pay support according to actual income, adults are responsible for their own well being). To implement these ideas should not involve litigation, or conflict.

            Unfortunately, unreasonable people and greedy lawyers, get in the way of this, and one of the ways they do this is by having an all or nothing attitude - the system should be there to control these people, not to burden the reasonable ones. But I digress.

            Comment


            • #7
              I honestly could not agree more. It really is a sad state, but from my experience, when you are dealing with somebody who is un-reasonable and a lawyer who promotes this kind of behaviour, it generally just get unfair and promotes an unhealthy environment where the child ultimatly must live in.

              Personally, my offer would be something that is reasonable (i.e. something that the judge would be expected to make a decision on). If your EX wants to continue to litigate, then there is little else you can do.

              But my feeling is that the offer should be accepted as a whole since there is little else to negotiate if you make a "Resonable Offer", which should be the basis of your offer to begin with...

              I am not a lawyer and don't pretend to be one.

              Good luck!

              Comment


              • #8
                Originally posted by billm View Post
                This may very well be good advice, but really it is a sad state that people hold back agreeing to reasonable things as a negotiation tactic.

                Ideally, people should quickly and formally agree to the things that are easy and obvious to agree to and then narrow down the list, dealing with individual issues separately and fairly, until a final agreement is made. In my view this should work because each and every aspect of a SA should stand on its own as reasonable.

                That being said, there should be a lot less struggle in separation - the basic ideas are there (divided marital assets evenly, raise the kids together and in their best interests, and pay support according to actual income, adults are responsible for their own well being). To implement these ideas should not involve litigation, or conflict.

                Unfortunately, unreasonable people and greedy lawyers, get in the way of this, and one of the ways they do this is by having an all or nothing attitude - the system should be there to control these people, not to burden the reasonable ones. But I digress.
                Well Put my friend, if everyone thought like that there would be no family court.

                Comment


                • #9
                  Thanks to all for the feedback.

                  Originally posted by billm View Post

                  Ideally, people should quickly and formally agree to the things that are easy and obvious to agree to and then narrow down the list, dealing with individual issues separately and fairly, until a final agreement is made. In my view this should work because each and every aspect of a SA should stand on its own as reasonable.
                  That is my thought process exactly. I just couldn't put it down in such a short, concise paragraph.

                  Originally posted by Gilligan View Post

                  Personally, my offer would be something that is reasonable (i.e. something that the judge would be expected to make a decision on). If your EX wants to continue to litigate, then there is little else you can do.
                  Exactly. There is nothing in my offer that I would refuse accept if the shoe was on the other foot. I use that as a bench mark as to what I believe is reasonable.

                  Now, whether a judge (post order) views the parent who originally asked for 50/50 access (84hrs/wk), and dropped their offer to 40/60 (70hrs/wk) as more reasonable as one who originally asked for 86/14 access (25hrs/wk) and now offers 28hrs/wk, remains to be seen.

                  I appreciate everyone reminding me that if I do settle some parts, then I'll have nothing left to negotiate with. I get that but I guess I still hold out hope that "fairness" will prevail in the end.

                  Intro on my Offer to settle goes like this:

                  <!--[if gte mso 9]><xml> <w:WordDocument> <w:View>Normal</w:View> <w:Zoom>0</w:Zoom> <w:Compatibility> <w:BreakWrappedTables/> <w:SnapToGridInCell/> <w:WrapTextWithPunct/> <w:UseAsianBreakRules/> </w:Compatibility> <w:BrowserLevel>MicrosoftInternetExplorer4</w:BrowserLevel> </w:WordDocument> </xml><![endif]--> The Applicant offers to settle any or all of the following issues of these proceedings, on a final basis, in accordance with the following terms.

                  This offer may be accepted in its entirety or the Respondent may choose to accept parts A, D, E, F or G on an individual basis.
                  Parts B and C may be accepted as a whole but not individually.
                  Part H is open for acceptance only if the entire offer is accepted
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                  Parts B & C deal with access and holiday access. Part H deals with costs.

                  Comment


                  • #10
                    In my agreement, there were certainly points that I conceded in return for movement on other issues. Financial issues can stand on their own, but custody and parenting arrangement issues often come in small parts that make up the greater fabric.

                    For example, I may like the current babysitter, whereas the ex does not. I may agree to change babysitters in return for getting to decide where/if the kids go to summer camp. If I offered that as clauses A and B, ex would have accepted A (leave babysitter) but not clause B. There is no reason to expect that A and B would acceptable to each party in and of themselves.

                    Originally posted by firhill View Post
                    I appreciate everyone reminding me that if I do settle some parts, then I'll have nothing left to negotiate with. I get that but I guess I still hold out hope that "fairness" will prevail in the end.
                    Don't count on it. Assume that your ex will be ridiculously unfair, and then be pleasantly surprised. That said, you know your ex better than we do. If I had offered my ex such a piecemeal agreement, my generosity would have been exploited ruthlessly (and, for that matter, often was... I was given a crash course in the dark side of human nature during those negotiations). Looking back, every time I was nice, it was taken advantage of, severely. The only gains I ever made were when I aggressively held the line and threatened to go nuclear. But that was my ex, not yours.

                    If you are going to court anyway, then make the ex take it or leave it, it will help you with being awarded costs at the end. Any clauses she accepts before trial won't be used for costs determinations. Of course, if you still think that you might avoid court, then your plan is good... agreement begets more agreement in my experience.

                    Comment


                    • #11
                      The Respondent may accept the Offer in its entirety or any part individually.
                      That is a dangerous clause and, from it, I would infer that you are either making an offer to settle that has no chance of being accepted or you are offering the other side the opportunity to cherry pick what they want then burn you on the rest.

                      Comment


                      • #12
                        Originally posted by Janus View Post
                        Any clauses she accepts before trial won't be used for costs determinations.
                        Excellent point, and one that I have given a lot of consideration to.

                        Originally posted by Janus View Post
                        Of course, if you still think that you might avoid court, then your plan is good... agreement begets more agreement in my experience.
                        I am sure this would happen, if it wasn't for her lawyer "convincing" her that she will get everything she asked for in her Answer.

                        Originally posted by OrleansLawyer View Post
                        That is a dangerous clause and, from it, I would infer that you are either making an offer to settle that has no chance of being accepted or you are offering the other side the opportunity to cherry pick what they want then burn you on the rest.
                        Well, the monkey throwing rocks at the keyboard just got my attention

                        I thought that by sending an offer that IMO is extremely fair and knowing she won't accept any part of the offer, that it can only be to my advantage if there is a hearing on the cost issue.

                        Then again, if she does cherry pick what to sign off on, as Janus said above, that issue is removed with regards to costs.

                        Comment


                        • #13
                          I thought that by sending an offer that IMO is extremely fair and knowing she won't accept any part of the offer
                          It is extremely rare to allow people to pick what clauses they want from an offer. While there may be a time when it is appropriate, I cannot at this time contemplate any situation where "disastrous" would not be the expected result.

                          Edit: Giving her the option will not look better on you in a cost determination.

                          Comment


                          • #14
                            Originally posted by OrleansLawyer View Post
                            It is extremely rare to allow people to pick what clauses they want from an offer. While there may be a time when it is appropriate, I cannot at this time contemplate any situation where "disastrous" would not be the expected result.

                            Edit: Giving her the option will not look better on you in a cost determination.
                            So, no matter how much faith I have that the other party would be display fairness, integrity etc... , I should always proceed on the assumption that <s>the other party</s> her lawyer is only looking out for the best interests of their client and don't give a sh!t about the child?

                            Thanks for the lesson on the reality of it all

                            Comment


                            • #15
                              I should always proceed on the assumption that her lawyer is only looking out for the best interests of their client and don't give a sh!t about the child?
                              Her lawyer is a facilitator. Their job is to assist their client in achieving their legal objectives. If she has no interest in your child's best interests, whatever discussions she may have with her lawyer about it in private, the lawyer will discuss the costs/benefits as they relate to her and follow her instructions.

                              As you are in court, I infer that you are not able to rely on bona fides negotiations and her electing to compromise for your mutual best interests.

                              Protect yourself. If you obtain more than you think is fair, adjust accordingly.

                              Comment

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