The negotiation process isn’t beholden to any specific industry. Yet different factors certainly influence the process, especially what you need to do to prepare.
Context matters. As an example, you can be a great negotiator, but you aren’t likely to negotiate your way to a six-figure salary in your entry level fast-food job. That’s why it’s important to know the going rates before coming to the negotiating table. Of course different factors influence different industries. This post explores some factors that impact divorce settlement negotiations.
I’d like to take a moment and thank Kathleen Cole, a family law attorney with over 20 years of experience. Kathleen was kind enough to provide the perspective for this post. Find out more about Kathleen and her law practice at http://www.colefamilylaw.com.
Takeaway: Know the law; know your judges; and manage client expectations from the get-go! There’s just no substitute for it. If you do these things effectively, you’re less likely to be blindsided in negotiations.
Action Step: Listen! Attorneys have intake forms for a reason. It gives them the information they need to make an initial determination about a case. However, build active listening into the initial client interview, too. Set aside a period to listen. That means no furious scribbling down facts, no monologue explanations of law; just listening, understanding, and asking open-ended, on-point questions. You’ll be surprised how this builds trust and encourages the client to reveal information underlying the case.
Before you read any further along, it’s a good idea to go back and check out The 5 “Knows” of Negotiation Prep. One factor is understanding industry specific information before heading to the bargaining table. Much of this post focuses on issues specific to divorce.
It’s important to remember, though, there’s no silver bullet! What I mean is I don’t have a way (no one does) for you to just run out there and easily hash out the best deals. These are perishable skills that require practice, reflection, and then more practice to hone.
Good news: you can do it a little bit at a time, so no need to feel overwhelmed.
So let’s talk about some of the influencers to be aware of.
Think it’s too obvious?? The law is the biggest contributing factor. It influences all the decisions you make in a case. In terms of negotiating, though, a thorough knowledge of the law informs your decisions on what your Best Alternative to a Negotiated Agreement is (BATNA, a term coined in the best seller Getting to Yes: Negotiating Agreement Without Giving In). The alternative to settlement is trial. So it makes sense, you have to know the law to be able to assess the likely outcome. That’s your base line.
The overarching theme of divorce is 50/50. But there’s plenty of exceptions. Some things are completely negotiable; whereas, other things are dictated by law. For example, research the high and low end of spousal support for a particular situation and use that as your “market” range.
The biggest thing, here, is to know what’s negotiable and what isn’t.
Don’t know the law?
Maybe you’re new to family law, a brand spankin’ new attorney, or perhaps an experienced attorney in need of a refresher. Good news, there’s plenty of resources out there like mentors and continuing education resources. Check out your local bar association to learn how to get up to speed.
Judges are experienced attorneys, 100% neutral, and always enforce the law as written– no more, no less. Right?
Not quite. Many judges are elected, which makes them politicians. What we know for sure, is they can run a campaign. And they’re popular enough (and can raise enough cash) to get elected. However, there’s no guarantee the judge in your case will be knowledgeable or experienced in family law.
In order to assess your chances, it’s important to know the judges and how they behave.
What if you don’t know? Ask an attorney friend or make friends with the court clerk and ask him or her. Don’t have any friends and the clerk won’t help? Make a new friend: take a local attorney out for coffee or to lunch!
You’ll be surprised: Help will arrive when you ask for it.
Managing Client Expectations
As an attorney, you know that nearly 95-98% of cases settle. But does your client know that? Has your client been watching too much TV? Does he or she think you’re going to ride into trial on horseback and get everything? Has your client talked with other attorneys that promised to deliver the world? Is your settlement suggestion an easy pay day for you but not in the client’s interest?
If you want your client to think rationally and make rational decisions, you’re going to have to manage his or her expectations of the law, the procedure, and the end result. As attorney and counselor, it’s your job to try and manage your client’s emotions to get them to the point of rationality if at all possible.
This is where things get juicy from a negotiation standpoint because your first negotiation is actually with your client.
- Don’t just fill out a client intake form. Listen to your client. Don’t write, limit your talking, just listen. Don’t lose sight of the fact that divorce is a very emotional time for your client. Treat the client as a person, not just a transaction.
- At any given time, the person in a conversation that’s listening and asking questions is the one with the power. That’s because active listening directs the conversation where you need it to go.
- Ask open-ended questions to develop the information your client is giving you.
- Make neutral-toned, inquisitive observations on how it seems like he or she is feeling.
- Follow your questions and observations with silence to give the client time to think and respond.
- Active listening will build trust, and the client will feel like you understand him or her.
Under Promise, Over Perform
- It’s kind of like a traditional negotiation “anchor.” To put it another way, don’t get your client’s hopes up.
- It’s a great thing that you want to outline every possible outcome for the client–the good, the bad, and the downright ugly. But wait until you have more information. Since there’s two sides to every story, your initial impression should be conservative. It’s much easier to ramp up expectations that it is to reel them in!
- When you exceed those expectations, the client is more likely to consider your advice because they were mentally geared for what, in their mind, was a loss.
These are just a couple of techniques. And don’t think they only apply in the initial consultation. You might have to rinse and repeat some of these to help the client throughout the process. Emotions and stress are constantly battling to steal your client’s rational thinking. You are there to guard against that.
But wait; there’s more. You could potentially use any number of other techniques. Feel free to contact me for further reading on conflict management and negotiation. Find what works for you through practice, practice, practice.
Influencers on Rational Decision Making
Everyone knows a client’s decisions can be greatly impacted by forces outside of the “rational” realm. Family input, opposing counsel, substance abuse, domestic violence, and a subjective view of what’s “fair” can all impact a client’s perceptions.
Speaking of fair. There’s an unfair dynamic at play for you. First, you have to manage your own client’s expectations and emotions and try your best to remove decision-making barriers. Second, there’s no guarantee that your opposing counsel is going to be doing the same thing.
In the first instance, building trust and empathy may allow you to guide your client appropriately. (I won’t address substance abuse or domestic violence, though, because that’s a whole other can of worms.) As a part of your initial client interview, you may want to ask a few questions. These questions will give you insight into some potential barriers to agreement.
- “What does your family think of this?”
- “How have your interactions been with your spouse since this has been going on?”
- “Does your spouse already have an attorney? If so, how have your interactions been with the attorney?”
- “What factors influence what you think of as fair?”
- Brainstorm: what other open-ended questions can you ask to flush out barriers to rational decision making?
Additionally, you have to negotiate with the other attorney to get his or her buy in. As human beings, we have a tendency to demonize the “other side.” If you can get over those feelings in your own mind, you can begin to force the other side to see you in a more human light.
I could go on for thousands of words discussing the different negotiation theories and different techniques to use. However, I know you need somewhere to start. From there, you’ll figure out what works for you.
Start with some basic suggestions:
- Politely shift the conversation away from money and terms until you’ve built up a rapport with the other side.
- Build rapport by using some of the active listening skills that have already been covered.
- Maintain positive tone and body language. We’ve all heard it by now, communication is mostly how it’s said, not what is said. Use that to you and your client’s benefit.
- Keep in mind, being difficult doesn’t make you a strong negotiator. It just makes you an a-hole. And no one wants to make a deal with an a-hole.
Again, we could talk all day about techniques that work, ones that don’t work, and so on. The big takeaway is this. Know your industry. If you’re handling divorce cases, know the law; know the judges; and realize that to be a successful negotiator, you’ll have to manage your clients and your opposing counsel. Start small by building active listening skills into your arsenal a little bit at a time. And remember, there’s no silver bullet. Practice, practice, practice.
Are you a family law attorney with thoughts or comments? Let’s talk. Share your comments below.
If you’re a professional in a different industry or an attorney practicing in a different area of law, reach out to me. I’m always looking for new industries to include in this series! Hit me up and we can talk about the research that goes into negotiating in your sector.
Sign up for WDR’s email list. Thanks for reading and stay tuned for the next part in the series!