|
In my
experience, most family law conflicts are resolved by a negotiated
settlement. If you haven’t filed a complaint with the courts, this
often comes in the form of what is called a Settlement Agreement.
Upon the initiation of litigation, mediation frequently resolves the
dispute. Some cases are settled on the courthouse steps minutes
before the scheduled trial. That is why I tell my clients, “In a
family law dispute, you don’t get what you deserve, you get what you
negotiate”.
I have tried
over 200 cases and participated in innumerous mediations and I have
completed a 40-hour mediation course. As a result, I have concluded
that there are four basic rules to remember when you negotiate:
1.
Know exactly what you want.
2.
Know what is reasonable.
3.
Try to get your opponent to make the
first offer.
4.
If you have to make the first offer
“shoot for the moon”.
1. Know exactly what you want.
Most
clients I initially speak to think they have a pretty good idea
of what they want; custody, to keep the kids in the State,
liberal visitation, to keep the house, dog or the blue china,
etc. In order to secure these objectives you need to be much
more specific. You want liberal visitation? No, you want,
“joint custody with visitation every other weekend from Thursday
after school or no later than 4:00 p.m. to the following Monday
morning at the time the child’s school begins and alternate
Thursdays from 6 – 8 p.m. when you do not exercise weekend
visitation, 4 weeks in the summer, alternate spring breaks,
Christmases, Thanksgivings and Easters, on the child’s birthday
when not in possession on the from 6 – 8 p.m. and a restriction
on residence to a particular county or contiguous counties…and
that’s just for starters”! You will have an advantage over
your opponent who makes general requests because they are
inclined to concede the details to you. It is important to know
these details early on because negotiations could happen at any
time and you need to be prepared. You will find that changing
your position is very difficult, and more likely to produce
litigation, if you negotiate with your spouse before speaking to
an attorney and finding out what is reasonable…too late. Do
yourself a favor, find out before you start talking.
2. Know what is reasonable.
This is an example of something which is not reasonable: “All I
want is for my spouse to just give up custody of our four kids,
to leave me the house and their retirement, to move to another
country, give me a written apology and to pay for my attorneys
fees”. Perhaps this will be your first offer, see number 4, but
it is not likely going to be accomplished by going to court and
such a proposal may produce some resistance.
Frustratingly, an attorney’s definition of reasonable may be
different from yours. Generally an attorney’s definition is
“that outcome which is reasonably to be accomplished by going to
court”. It is important to get advice from an experienced
family law attorney in order to know the odds of achieving a
particular result. Only then will you know what to concede or
not. Litigation/negotiation is a gamble, you need to “know when
to hold’em and know when to fold’em”.
3. Try to get your opponent to
make the first offer.
This rule was the most valuable thing I learned from my
mediation course and I learned this by example. The instructor
subdivided our group into pairs and instructed us to engage in
negotiations to achieve certain financial objectives which he
gave to us. The objective was within a range and each party had
a cushion from which they could negotiate. And, each party’s
objective was within the other party’s range but neither party
knew that. In theory, both sides could achieve their objective
by conceding their entire cushion and that would be acceptable
to the other party because it was within their range. It was
just a matter of who would concede more. Interestingly, in
every case, the party that made the first offer achieved
less of their financial objective and conceded more. Begin by
asking your opponent; “What do you think is fair?” Listen,
perhaps take notes, and then begin negotiating.
4. If you have to make the first offer “shoot for the
moon”.
Most of my clients express this sentiment, “I don’t want to take
them to the cleaners nor to keep them from the children…I just
want what’s fair.” If you want a fair result begin by making an
unfair offer. This sounds counterproductive, confrontational
and plain mean-spirited. Sometimes you cannot make the first
offer. Traditionally, the Plaintiff is obliged to go first
during mediation sessions. Sometimes you are compelled to go
first because the other side is aware of rule number 3 or
because they just won’t engage. If that is the case, suggest a
proposal which achieves all of your objectives, and more.
Present a proposal which contains things you know you are going
to concede. This way, when you finally concede to give them the
blue china, that you hated anyway, you appear conciliatory and
are less likely to have to concede bigger issues.
I have heard the following regarding mediation which is a formal
type of negotiation; a successful mediation is one where both
parties make concessions and where neither party is entirely
satisfied. If you follow my advice you will still have to make
concessions but you will probably be more satisfied with the
result than your opponent.
For
more information, contact R.S. (Steve) Monks at 451-7979 or by
e-mail at
rsmonks@yahoo.com
|
