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LITIGATION AND SETTLEMENT--IT'S NOT ALWAYS EITHER/OR

Initially, this post was going to be about the substantive portions of the disputed claims in Perry v. Nemira, 2015 WL 179045, 11 MISC 457157 (AHS) (Mass. Land Ct. Jan. 15, 2015), which focused primarily on claims of right via prescriptive easements and adverse possession. In a word, the decision is lengthy (mostly due to the various chains of title that must be parsed out) and hard to condense into a neat little blog post.

But something jumped out at the very end that seems perhaps more noteworthy:

In view of the foregoing rulings, it would be in the best interests of both Defendants and Plaintiff to come to some agreement among themselves as to their access to and from their properties, as well as the location where they and their guests can park and turn around cars. On Plaintiff's side, it would appear that Plaintiff has no suitable location (other than on Lot 9B or on the portion of Lot 3B not burdened by ROW 2) where he can park or turn around his car. This was a situation of Plaintiff's own making, as his development of the Yard had the effect of replacing what was previously used as a parking area with landscaping. If Plaintiff did so in reliance upon an assumption that his neighbors would allow him to use their property for parking in perpetuity without payment therefor, this assumption was clearly unreasonable. On Defendants' side, however, it would seem that Defendants are without a means of access across the Perry Property for the benefit of Lot 2, the prospective location of the residence on the Nemira property.

In sum, both parties have an incentive to negotiate a way forward within the parameters outlined by this Decision. . . . [dicta omitted]

...

Having noted the foregoing, a cursory review of the docket of this case quickly reveals significant friction between the parties in their dealings with each other. Nothing in this court's Decision can have any effect on the parties' willingness to work together with each other as neighbors. However, what this Decision can do is to serve as a starting point around which the parties should begin to work together in such a way that they can both use and enjoy their properties in harmony with each other. Should the parties desire, they may contact the court's sessions clerk to either set up a post-judgment status conference to discuss possible avenues for the settlement of their dispute in view of this Decision or to obtain the contact information for local mediation services who may be helpful in directing the parties towards an amicable settlement.

While it's true that in most Land Court cases, the assigned judge will discuss the possibility of settlement (via third-party mediation) among the parties at the outset of a case-and often send the parties and their counsel to a mediation screening. But once litigation is underway, it becomes harder to convince the parties (or their counsel) to consider negotiated settlement as an option. On one level it makes sense that parties, over time, become less keen on settlement as a solution, particularly if both sides have not only a reasonable chance of having the facts and/or law on their side, but also if they have spent a fair amount of time and financial resources in pursuing the outcomes they desire (or preventing the ones they do not).

Yet, as this case shows, sometimes there are things that a court cannot fully flesh out, at least not in the way that the parties hope when the case is first filed. In this case, and those we have counseled over the years, parties sometimes must (or should) work out a component of the case that the court was unable to do. Sometimes going through litigation is the only way to get to that point. But whether it's at the outset of the case or at the end, it behooves both sides (parties and counsel) to reserve a little flexibility in the event that negotiation becomes required in order for both sides to function pragmatically after the case. Having counsel experienced with not only the law in a particular case, but also having participated in many negotiations/settlements makes for the most robust kind of representation.

Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC, on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.

Copyright (c) 2011-2015 by Jeffrey T. Angley, P.C. All rights reserved.

Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.

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