The goal of a divorce or family law case is always to settle the case. In the vast majority of cases, parties are better able to reach agreements that work long-term for the family than a judge could rule on the issues. You know your issues, your children, your goals and your fears much better than a judge and you are in a better position to get what you want in a negotiation.
Taking the time to think about how to negotiate is therefore in your best interest. This section is to get you thinking about how to tackle the negotiation piece of your divorce or family law case.
Determining what is most important to you is an essential component to preparing to negotiate, as is thinking about what is most important to the other party. It may be possible to meet both of your objectives.
Much has been written about negotiations and this chapter will not replace reading the classics like “Getting to Yes” or “Influence.” It will give you some practical and theoretical tips for how to negotiate a favorable outcome in your divorce negotiations.
The environment for divorce negotiations
Before you do anything else, first you set the environment for your negotiation.
I’m reminded of an episode of Ray Donovan. It’s a Showtime series and Ray Donovan is an L.A. fixer. He works for a law firm and comes in to clean up big messes. He’s an expert negotiator and works completely outside the legal system. In one episode, Ray walks into a room where a big gangsta thug is sitting across from the law partner he works for. The gangsta has two more thugs on either side of him and a pistol on the table. The law partner is sitting across from the huge man, sweating bullets.
The first thing Ray does is kick out the extra thugs: “Get them outa here.” Then he demands that the gun be removed. Before he begins to address the terms of the negotiation, he sets the environmental stage. How can we apply this to you?
A Negotiation Between Equals
It can be very difficult in cases where there is a large imbalance of power. If one spouse has controlled or abused the other spouse, there may be an imbalance of power. This may also be the case if there is a large age gap between the parties or a big difference in life experience or education. If you do not feel that you can have a negotiation between equals, you will need an advocate. This could be an attorney or a lay legal advocate. It should not be an interested or related party like a new spouse, significant other, or parent.
Where to Negotiate
A negotiation should take place in neutral territory. This is different for everyone. For some, the kitchen table may be a fine place for a negotiation. For others, a Starbucks halfway between two homes may work. For this reason, it may be preferable to avoid meeting at one attorney’s office. The space should be comfortable and non-threatening for both parties. It doesn’t necessarily have to be private. Sometimes a restaurant negotiation can be very effective, especially because the act of eating together can sometimes break the ice. In some cultures, a meal or drink must be shared prior to engaging in any negotiations. It helps to humanize the other party and break down the walls that may have come into the meeting.
When I hold informal settlement conferences in my office, I try to always have pastries and drinks available. Setting the stage for comfort and safety is essential in a good negotiation strategy.
Who Should Be Present
Only the relevant players should participate in the negotiation. This comes up frequently in divorce and family law cases. A parent or spouse may want to participate in the negotiation. They want to act as your ally. You may, or may not, want that too. It is almost always a BAD idea. The third party has an agenda and it may not line up with your agenda. You and your spouse (or the other parent) are the only parties to the case and the decisions should be made by you.
With that being said, having someone looking out for your interests present can be a very good idea.
Decide in Advance of the Procedure
Everyone should know what they are walking into before getting to the meeting. Negotiations can take place in one long meeting, or in a series of meetings over weeks and months. Before you engage in the negotiation process, you should determine and communicate what the procedure will be.
For instance, you may determine that at the first meeting you will identify the relevant issues and initial positions as well as any materials that will need to be gathered prior to the next meeting. You may set a deadline for when those materials must be provided and schedule a follow-up meeting where you intend to flush out the materials and see if any agreements can or will be reached. Decide in advance whether or not you are open to or you expect the other party to sign a binding agreement at the negotiation. Sometimes parties reach agreements, draft them and sign them at a given meeting and other times the parties take their agreements home for consideration. Both are valid options.
Ask yourself these questions before deciding on the procedure of your negotiation.
- Are you someone who needs time to process before making decisions?
- Do you ever regret decisions that you have made when buying a car or making another decision without fully contemplating and committing to the consequences?
- Are you someone who thinks quickly on their feet and processes information and decisions quickly?
Think about and decide in advance how you would like the procedure of the negotiation to flow. Make sure this is communicated and agreed upon prior to starting the negotiation. Once people start reaching agreements, no matter how small, it is easier to keep saying yes. Use this to your advantage by starting with easy agreements before diving into divisive issues.
Emotions and Negotiation
Negotiating a divorce is emotional. This is not some business transaction. Nothing is more emotional and personal than the things that matter most to you, and divorce touches all of them: your relationships, love, children, money, security, stability. Your emotions are always a factor in negotiating your divorce or family law case.
Traditionally, we have been taught to “separate the problem from the people” when negotiating. Not only is this impossible, it ignores the role of emotions and the impact they have on negotiating.
Recently, research has revealed the role that emotions play when we are in the midst of a negotiation. Anxiety is the number one emotion people experience in negotiations, and it is associated with worse outcomes than other emotions. In a recent study, anxious subjects had lower expectations, made lower first offers, responded more quickly to offers, and exited the bargaining sooner. And—no surprise—they got worse outcomes.
We have also learned that positive emotions lead to increased creativity, and the higher your “emotional intelligence,” the better outcome you can expect to achieve in negotiations.
Emotionally intelligent people have the capacity to:
- identify the emotions they and others are experiencing;
- understand how those emotions affect their thinking;
- use that knowledge to achieve better outcomes;
- productively manage emotions, tempering or intensifying them for whatever purpose.
What does this mean for you? Preparing emotionally is just as important as preparing for the substance of your negotiation. Music or meditation can be successfully used to help you get into the zone of calm and focused. You want to be calm and keep your anxiety to a minimum while at the same time staying aware of the potential pitfalls in your negotiation.
Legal vs. Practical Leverage
Negotiation does not have to be a zero-sum game. The best settlements result in a win-win. As lawyers, we tend to think in terms of “what the judge might do” or what “the law says.” When you are settling your divorce case, there is no judge and there is no law (subject to some limitations). By and large, you can do whatever works best for you and the other party. Most of the limitations come down to parenting time and child support. A child support worksheet must be filed even if the parties decide to depart from the guidelines. Similarly, a judge must approve any parenting time arrangement as “in the best interest of the child.” Practically speaking, agreements between parties are rarely rejected and you are not bound by the law when determining how you wish to divide your property or parent your children.
Legally, many things do not matter. Your affair, his spending problem, and your interfering mother-in-law do not typically have a place in the divorce court action. In Arizona, divorces are no-fault, meaning only facts related to specific elements of the law will be relevant and admissible. That simply isn’t the case when you’re engaged in negotiations.
For instance, a soon-to-be ex-husband was anxious to get remarried to his new girlfriend and the wedding was planned for Hawaii next month. The trial wasn’t to take place for three more months. If Husband didn’t secure a divorce during the negotiations, and before trial, he would be unable to proceed with his wedding plans. Wife had practical leverage to negotiate the terms of her divorce.
When preparing for the negotiation, think about everything related to each party’s considerations and motivations. As much as possible, try to get inside the head of the opposing party. This will help you be creative in coming up with proposals and solutions.
Help when negotiating
Unfortunately, when the stakes are highest, we are often at our worst when it comes to communicating. Our creativity shuts down as our panic levels rise. One option to make negotiations easier might be having a third-party intermediary shuttle between the parties.
A mediator is a trained neutral third party whose job is to facilitate communication and agreements. They are not there to advise you. They are not supposed to insert their opinions. Mediators are used for all sorts of dispute resolution, not just divorce. When selecting a mediator for your divorce, make sure the person has experience in divorce. A background in psychology can be very helpful.
A mediator should help you to set the environment, procedures, and help keep emotions in check. Sometimes a face-to-face negotiation is counter-productive to reaching an agreement and the mediator may separate the parties. This is called a caucus. The parties are separated into their own rooms and the mediator goes back and forth with different offers. This can help keep the emotion out of the way and generally allows people to reach agreements faster.
There are definite advantages to bringing in a mediator and using shuttle mediation tactics. Reaching settlement is almost always better than litigating, not just for the current outcome but for the future relationships of the parties.
With that being said, one of the greatest advantages of reaching settlement within your divorce is that it sets the stage for your future negotiations and communications with your soon-to-be ex-spouse. If you and your spouse are only able to communicate through a third-party mediator, you are not getting the full advantages of divorce negotiation and settlement. If the two of you have children, you may need to continue communicating for years, and avoiding the courtroom now and in the future should be a mutual goal. If you cannot be in the same room together, this may make future communications more difficult—or expensive—if you need a mediator.
Attorneys can also negotiate on your behalf without the use of a mediator. When both parties are represented, or even if one party is represented, an attorney may help the two of you reach an agreement. An attorney is not a third-party neutral. They are an advocate and ally for the client only. They can provide you legal advice and guidance as well as perspective and options. (They can let you know if you are about to enter into a bad agreement, while the mediator cannot).
Culture when negotiating
There is this fun icon based on a recent Harvard Business Review article on negotiations. It compares and contrasts emotional expression vs. confrontation by region, and the results are very interesting.
From the image, we can get an idea of how different cultures perceive and receive emotional intensity and confrontation. While you know your spouse better than most, it’s a good idea to think about your cultural background regarding confrontation and emotions, and your spouse’s cultural background. Thinking about and considering these issues may help you design a negotiation procedure that will be most helpful to you.
If you have very different styles of negotiation and expression, it may be one more reason to enlist the help of a third party.
Just Keep Talking or Stop!
During peace talks with Syria, John Kerry has recently brokered agreements that have lasted many months. Kerry just wouldn’t give up and just kept talking. If you are seriously committed to reaching a settlement, you should not give up! Recognize that coming to an agreement may take many months, but it is almost always worth the time.
At the same time, sometimes the very best technique is to just stop talking. Let the silence linger. Allow people time to think and respond and consider your requests. The desire to reach a settlement and to just keep negotiating should be tempered by the understanding that sometimes these things can take time and multiple sessions.
When to Walk Away
When you have laid everything out on the table, you have brought in third-party neutrals to help you, you have kept your emotions in check and you have used all the leverage that you have available to you, it may be time to walk away. Sometimes two people don’t even seem to be talking about the same case. One parent may be alleging domestic violence and drug use, while the other parent may say they had a perfectly normal relationship without any abuse whatsoever. If you have tried everything and you are not in the same universe, it may be time to walk away and head to trial. Check out your original analysis of best-case and worst-case scenario, and compare it to the offers you have on the table with your negotiation. It should help you evaluate the reasonableness of the negotiation.