Negotiation

Rabbit Rule #11: Don’t Give Your Negotiator Authority to Settle without Consultation

Many lawyers intentionally don’t get authority from their clients to settle a case until after negotiations are complete. This is an excellent practice. It puts the negotiator in the position of saying, “I like what you’re offering, but I don’t have authority from my client to settle the case.” Or, perhaps even better, “I like your offer, but I’m afraid you’ll have to do better or my client won’t accept it.” It gives the negotiator the ability to sympathize with the other side, thereby establishing rapport, without giving in. This is often immensely helpful in reaching a settlement.
This technique works so well that many good negotiators, who really have full authority, develop phantom or imaginary authority elsewhere. They pretend not to have authority. Since you obviously have authority to settle your own case, this is the method that you must use when you are the negotiator, if you are to keep from having all of your authority present. You can do this by letting your lawyer be the heavy.

When your spouse is pressing you for agreement, tell him or her that you can’t give an answer because you must consult your lawyer. Say that your lawyer made you promise not to enter into any settlement agreement without his or her consent.

If necessary, you can go further and say that if you don’t abide by this agreement, you’re afraid that your lawyer will quit your case. Though you would almost be glad to get rid of the lawyer, since he or she is so mean, you can’t afford to do so because you already paid substantial money for legal fees, and you can’t afford another lawyer.

If it will make you feel better, go ahead and actually enter into such an agreement with your lawyer. Agree that you will not make any agreements about your case without first consulting with him or her. The important thing is to put yourself in a position that will keep you from being stampeded into an imprudent agreement.

The oldest, and cheapest, sales trick in the world is what might be termed the “once-in-a-lifetime-deal” or “the last of its kind at this price” trick. More people have been sold more junk at ridiculously high prices by this method than by any other method known to mankind.

So, if your spouse is offering you “such a good deal” that he or she can’t allow you a few hours or a few days to talk with your lawyer and think it over, then by all means tell your spouse with a touch of sarcasm that the offer is just so good that you can’t accept it. People who make legitimate offers can afford to give a reasonable period of time for consideration.

This does not mean that you should always delay or stall in negotiations. If you and your lawyer are convinced that the offer is a fair offer and that you can’t do any better or that maybe it really is the deal of a lifetime, then by all means strike while the iron is hot—settle.

The point is, you can’t know if it is a good deal until you have had an opportunity to (1) be sure of the facts, (2) know what the law says you’re entitled to, and (3) have some idea of what a judge or jury is likely to decide if the case is tried. These things take time—even for a lawyer. If your spouse doesn’t have sense enough to recognize this, then you must.

Robin M. Green, Divorce: When It’s the Only Answer (The Ordinary Mortals Guide, Inc., 2005), Chapter 13, pp. 199-201.