1. Negotiation: Getting Yours

What is negotiation? For our purposes, we can say that negotiation is the process of trying to persuade others to give us what we want. Even though your [case] is a legal matter, negotiating a settlement involves a great deal more than law. In your [. . . ] settlement, the law plays somewhat the same role as the out-of-bounds line of the football field. It is very important, but most of the game is played elsewhere on the field. In negotiating a settlement in your [case], it is helpful to think in terms other than law. The harsh reality is that bargaining over your [case] is more like horse trading or playing poker than anything else. The hand that you are dealt or the horse that you own is going to play a big part in the game. Nonetheless, the way you play makes a big difference in the outcome.

The poker game analogy is most helpful in thinking about dividing assets with your [opponent]. This is because of the uncertainty of the poker game. Both sides have some idea of what the court is going to do, but only a fool would pretend to know for sure. It is risky business.

To avoid this risk, both sides offer to give away some chips. If the other side isn’t offering you any chips, then you don’t have anything to lose by going to trial. If you are being offered only a small stack of chips, you still have relatively less to lose. Finally, the contrary is true. If you are offered a large number of chips, you run a substantial risk of getting less than this amount if you refuse them and instead choose to go to court.

Since I have told you that negotiating or bargaining your case has more to do with psychology, horse-trading, and poker playing than it does with law, you may be thinking that you can negotiate your case as well as your lawyer. You may be right. You may be able to negotiate better than your lawyer; or your attempt at negotiation may be a complete disaster that destroys your lawyer’s chances for helping you.
The question of how and by whom negotiations should be conducted is a serious matter that merits attention from both you and your lawyer. It should not be decided on the spur of the moment. Nor should it be based on your ego-needs, either to play lawyer or to get the best of your [opponent], unless you value these needs more than you do your children or property.
Perhaps you have been the dominant personality in the [dispute] and know more than your [opponent] about the [property involved]. Perhaps your [opponent] is represented by an obstreperous lawyer who won’t talk with your lawyer. Then, obviously, you may be the one best able to make some progress on your negotiations.

The contrary is also true. If your [opponent] has always been dominant or knows more about the community business and has employed a lawyer whom your lawyer judges to be willing to negotiate in good faith, then it is probably a mistake to negotiate for yourself. These obvious and extreme examples demonstrate how your lawyer will help you to decide how much of your own negotiation you should attempt. Your lawyer will not encourage you to undertake your own bargaining unless he or she thinks you are capable.

You may be tempted to try to negotiate your contested case first without a lawyer, thinking that if worse comes to worst, you can then hire a lawyer to straighten things out. Don’t. At best, this is like going to a sword fight without a sword just to see whether you need one. You might be allowed to go home and get one. At worst, it is like negotiating with Hitler without having an army. He won’t let you go home and get one.

Remember: Almost all of your bargaining power is built around the fact that you don’t have to settle. If you go to the negotiation party without a lawyer, you are defeating yourself. Perhaps the only words more American than “Remember the Alamo” are “I’m going to get a lawyer and sue you.” In our society these words carry power. If you really want to get a job done in negotiations, you won’t settle for cheap talk about what you are going to do if your [opponent] doesn’t agree. Just hire the lawyer. Don’t say a word about what you’re going to do. They’ll get the picture. It’s the difference between shouting “wolf ” and taking the wolf and setting it outside their door. It will save you money in the long run, and it may save your case.

Remember: Negotiations often set the table for litigation, and you may inadvertently set a table that no lawyer can help you serve. There is no clear-cut line between negotiation and litigation. Every experienced lawyer knows that there are many places besides the courtroom where trials and mini-trials take place.

Cases are tried by the parties before they even move out of the house, in the lawyer’s office, in the other lawyer’s office, at negotiation sessions, in the social worker’s office, in the coffee shop, and so forth. More often than not, these informal trials decide the outcome of the case before it gets to court so that even if a courtroom hearing takes place, the outcome, for all practical purposes, is already predetermined.

Robin M. Green, Divorce: When It’s the Only Answer (The Ordinary Mortals Guide, Inc., 2005), Chapter 13, pp. 188-190.