More tips for a clean settlement.
By Gilbert B. Feibleman and Paul Saucy, Family Lawyers
Know the Other Lawyer
Negotiating a divorce case is like no other negotiation for a number of reasons, not the least of which is that there are few hard laws or legal rules that apply. The vagueness of asset values, flexible criteria for division of property, and the lack of objective spousal support standards always gives the advantage to the legally and factually informed and prepared lawyer. The next question to answer is whether your opponent is that lawyer.
Who is the other lawyer? Does she know the law? Does she have solid negotiating skills, or does she take unreasonable positions only to back down on the night before the trial? Is she honest and forthcoming with information, or does she “hide the ball”? Is her style so offensive that the best course of action is to have the case set immediately for trial? Does she get emotionally caught up in her clients’ cases?2 The list is endless. One way to find the answers is to make a few calls and ask questions about your opponent if you have not handled cases with her before. It is critical to know your opposing lawyer’s strengths and weaknesses, level of knowledge and working style.
What is your opponent’s negotiating style? Is the lawyer a “competitive” or “cooperative” negotiator? Although it is easy to be a jerk it is even easier to be perceived as a jerk. As a result, posturing is rarely helpful and usually counterproductive. Posturing may make the client feel good for a moment if the client’s goal is to punish or to gratify his own ego, but it is not conducive to settlement.
“Competitive” negotiators occasionally obtain more extreme results than “cooperative” negotiators but the price for those results is that they settle far fewer cases. It is not worth subjecting your client to this kind of negotiation. “Competitive” negotiators frequently win a battle during a particular confrontation, but they seldom win the war. They forget that the parties are often going to have to deal with each other for a long time and the pleasure of the moment may cause damage that lasts a lifetime.
Divorce is a specialized business and as a result, cases tend to be handled by the same group of lawyers. This means you will negotiate case after case with the same opponent. Resist the temptation to make disparaging comments about the other lawyer to your client even if you have worked together and know well her shortcomings. Your grandmother was correct when she advised that you never build yourself up by tearing another person down. Instead, focus on doing your job as well as you can. Let the results speak for you. Just as you must know your opponent, understand, too, the importance of your own credibility in the negotiation process. What is being said about you? Ask yourself the same questions that you ask about the opposing lawyer. You cannot expect the opposing lawyer to encourage the settlement process if your own credibility suffers in the legal community.
Recognize that a lawyer’s reputation, sincerity and credibility are tremendously important to settlement. Always covet your reputation. It, like credit, takes a lifetime to establish but only one day to destroy. For example, until and unless a lawyer acquires a reputation for being well-prepared and willing to try her cases, there will always be opponents who will discount her position.
This last attribute is often a failing of inexperienced lawyers. They listen to the client, but lose the objective viewpoint which is critical to being an effective advocate.
Know The Judge That Will Try Your Case
Settlement is largely determined by what the lawyers believe is attainable through trial. In jurisdictions where cases are pre-assigned, knowing the judge will allow the lawyer to gauge the credibility of the opposing party’s settlement proposals. This is one of the reasons divorce cases are usually handled by local counsel.
The goal is to have a clear understanding of what your client can reasonably expect as an outcome if a settlement is not reached and a third party (a judge) has to resolve the dispute. “Knowing” the judge does not mean that she will cut you any special favors. Rather, it is a recognition that every person, regardless of position, has personal biases and prejudices. A judge with a husband who stays home to care for their children will look at a case differently than a judge who has placed her children in daycare so that her husband can work. An alcoholic judge who has been sober for 5 years is going to be sympathetic to an addictive spouse who has recognized her problem and is seeking treatment. Call more knowledgeable local lawyers and ask for advice if you are not confident in your understanding of your judge.
Gauge your settlement advice to the client on what you expect the judge to do if she ultimately will resolve the unresolved conflicts. Keep in mind that the lawyers can fashion a result which the court would not have the authority to impose upon the parties. This is particularly true in areas involving highly emotional issues. As we all know, judges cut things in half with a rusty knife whereas we have the opportunity in the settlement process to use a surgeon’s scalpel.
Knowing the judge can also help you resolve that one stubborn impediment to a resolution of the entire case. Most judges are more than willing to meet with the lawyers (directly or by a telephone conference) for a quick advisory meeting. Each side makes a quick statement to the judge of her “best case” scenario. The judge then explains her read on what the outcome could be. Telling the client how the judge will likely rule on disputed issues often resolves stubborn impediments to settlement because it carries more weight than your own opinion and allows everyone to save face.
Preparing For the Negotiation Process
Serious negotiations should not begin until the lawyer has all the facts and a clear understanding of the client’s goals. Does the client understand and feel comfortable (procedurally…almost never emotionally) with the process he is about to go through? Tom Tyler, a psychologist at Northwestern University, reported in an article in the July 1988 ABA Journal that people often care less about how much money they get in a settlement than how they got it. He noted that “clients care most about the process by which their problem or dispute is resolved. In particular, people place great weight on having their problem or dispute settled in a way they feel is fair.” Clients who participate in the settlement process are much more accepting of the outcome. Remember the Perry Mason analogy. It is your job to educate the client before the settlement process begins if your client’s goals conflict with the law, your ethics or judicial practice. You have an ethical obligation to not allow falsehoods or assert positions to merely harass. You do your client a service by discouraging and preventing emotionally charged and questionable tactics.
Develop a plan for approaching the specific negotiation by examining the big picture pieced together from your knowledge of the law, the parties, your opponent, and the judge. A negotiating plan is your map to settlement and is critical because most people get lost without maps. Objectively analyze the case by questioning everything, including your client’s version of the facts and his demands. Clients actually do lie to their lawyers. Investigate and carefully evaluate the facts, the law, and the reasonableness of disputed claims. Make sure you know what your client wants and is willing to relinquish. This is where that written list of priorities will help you guide the client.
Next anticipate what the opponent wants and why. It bolsters your own confidence and undermines the opponent’s confidence if you understand where the hot buttons are. Define your parameters by identifying both parties’ goals. For example, does the husband need a quick divorce so he can marry his girlfriend? Does a mother need joint custody to save face although she does not desire to be the primary parent? Does a cheating spouse feel generous to assuage her guilt? Learn both parties’ weak spots. Learn if either client (or lawyer) is adamant about not going to trial. Watch for any health problems or age considerations that may affect a client’s goals. Discover if there is an asset that has sentimental or emotional value that will be a stumbling block to settlement. Look for “secrets” that no one wants revealed at trial.
Be a problem solver instead of a problem creator. There is no better way to win the trust of the opposing party than by finding solutions to her issues. Consider innovative formulations. For example, if mom wants the house to raise the children and dad merely wants his portion of the equity, consider deferring payment until the youngest child graduates from high school. This gives mom a chance to find an alternative source of money to pay dad while making dad feel good about not disrupting the children’s lives. If the parties cannot agree on an asset’s value that no one wants, sell it and let the market establish the value. If a party does not want to pay support “on principle”, offer extra tax-free property of equivalent after-tax value. The settlement possibilities of each case are limited only by your imagination. This is where your knowledge of the law and the facts of the case make you the better negotiator because you understand the parties’ priorities and how to help each get there.
A good negotiator must separate the people from the problem. For example, your opponent will not appreciate a lecture on the law, but would appreciate receiving a citation to a controlling case which could then be passed on to her client, especially if it is not given in the client’s presence. After all, nobody wants to look bad, either by being, or appearing to be, uninformed about the law in front of the client. Harassing letters or comments reciting in detail the immoralities or other bad personal conduct of a spouse is seldom effective, so why do it? Do not let your client’s complaint become yours. Nasty threatening tactics destroy the kind of atmosphere that is conducive to settlement. A charge of misconduct should be related as just that — unless or even if its truth has been verified (i.e., “My client reports that…“).
Be thorough, remembering that it is all in the details. Try to negotiate agreements which leave nothing dangling. Peripheral matters that usually are relatively easy to dispose of as a part of an overall settlement can be the source of bothersome problems if left unresolved. Pesky details such as who will assume responsibility for paying any tax deficiency due on a previously filed joint tax return, division of tax refunds, who is going to pay which credit card, division of dependency exemptions, division of the family photos, who will provide visitation transportation, where the support check will be sent, etc. can and should be anticipated and resolved before they arise after entry of the judgment.
In learning how your client thinks, you should also determine if your client is strong enough to be an active partner in the negotiation process. Clients capable of holding their own can often resolve minor disputes directly with the other party. Spouses know each other far better than the lawyers do. However, it is critical to monitor such direct negotiations to circumvent intimidation, subsequent misquotation of statements made, or an unintended revelation of tactics and strategy.
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Gilbert B. Feibleman is a Fellow of the American Academy of Matrimonial Lawyers and Past-chair of the Oregon Chapter. He has been acknowledged by his peers in “The Best Lawyers in America” since 2001. He is also the past chair of the Oregon State Bar Family and Juvenile Law Section and serves on the board of the Oregon Academy of Divorce Practitioners. He is a frequent speaker and author on matters of divorce and ethics. www.feiblemancase.com
Paul Saucy is a Fellow of the American Academy of Matrimonial Lawyers and the past chair of the Oregon State Bar Family and Juvenile Law Section. He is a frequent speaker and author on matters of divorce. www.youratty.com.
Reprint with permission.