Negotiating Matrimonial Settlements – Part II

Conditioning Your Client For The Negotiation Process

By Timothy M. Tippins

Copyright 2001 by MatLaw Systems Corp.

            The negotiating process is far too critical an aspect of matrimonial practice to leave anything to chance.  The successful practitioner understands that most clients are unfamiliar with the process and, because of the tremendous stress that accompanies the end of a personal relationship, emotionally ill-equipped to handle it without a great deal of support.  While the attorney is neither a therapist nor an emotional support group, educating the client as to what lies ahead serves the client’s interests and enhances the prospect of successful settlement results.

            Educating the client about the dynamics of the negotiating process begins at the first consultation.  Like so many other aspects of practice, ultimate success depends upon the degree of influence or control the attorney can exercise in guiding the client toward rational decisions.  The degree of attorney influence, in turn, depends upon the attorney’s credibility and the client’s confidence in the attorney.  Thus, building a firm foundation for the attorney-client relationship is a vital first step toward successful negotiation.[i]  

            Several issues need to be discussed with the client during the early stages of the attorney-client relationship to increase the likelihood of successful negotiations.  The following are some of the matters that should be explored and explained as part of the client’s essential education, generally the sooner the better.

• The benefits of a negotiated settlement over fully contested litigation.

            As a general proposition a better, more acceptable, result can be obtained through a negotiated settlement than through adjudication by the court.  Generally, parties are in better position to know what’s best for them than is even the most diligent judge, who can devote only a limited amount of time to the case.  Also, litigation is time-consuming, expensive, and laden with risk, all of which can be reduced by a negotiated settlement.

            Where both parties are motivated, more expeditious resolution of issues can be achieved through negotiation than by working one’s way through the full pre-trial gamut and then waiting for a trial date and judicial decision.  Additionally, ultimate conclusion may also have to await appeals that can add months or years to the process.

            Experience demonstrates that there is better compliance and fewer enforcement issues when obligations are established by agreements than with court orders.  Thus, the parties’ can better get on with their lives, rather than spending years staring across courtrooms at one another during post-judgment proceedings.

            Additionally, in New York, the separation agreement serves the dual purpose of providing a no-fault ground for conversion divorce and simultaneously resolving the ancillary custodial and economic issues.

• The impact of fault system and the “price of freedom” bargaining chip.

            New York’s fault system injects the price of freedom into the negotiating matrix where the spouse who wants out of the marriage does not have a provable grounds case.  This gives the “innocent” spouse leverage, where he or she is not overly anxious to sever the marital bonds.  In effect, the innocent spouse can say, “I’ll sign a separation agreement which will give you legal grounds, but only on my terms.”  Depending upon how desperate the other party is to end the marriage, this can be a potent position.  The party who wants out, needs to understand that additional concessions may be required under such circumstances.

Conversely, the innocent spouse should be cautioned not to overplay this particular hand.  All of the states contiguous to New York are no-fault states.  Except for those who are tied to employment in mid-state, it is often feasible, though not necessarily convenient, to become a bona fide resident of a neighboring state and commence no-fault proceedings there.  Once the foreign state divorce has been granted, either spouse can begin a New York proceeding to secure their economic rights.  [ii]

• Applicable law and reasonable expectations as to outcome.

            Perhaps the most important thing an attorney can do for the client is getting the latter’s expectations into the realm of reality.  Experience usually indicates a range of options within which one might resolve any given case.  If the client is initially outside of the range of reason, it’s the lawyer’s job to reel in the expectations.

            The practitioner should recognize that competing forces are often afoot in the expectations game.  Family, friends, television shows, so-called support groups, all do their best to pump up expectations.  Client’s come in expecting to receive the moon or skate for a song, depending upon which end of the economic power structure they occupy.  If the myths are not promptly dispelled, the attorney may have great difficulty securing a settlement the client will find acceptable.

• The dynamics of the negotiation/litigation process[iii]

            It is important that the client understand the interplay between the various stages of negotiation and the various litigation techniques that may be used conjunctively to keep the negotiations moving forward.  The client needs to know why, for example, there may be an advantage to commencing litigation when the result that is truly desired is a negotiated settlement.  It is important for the client to understand that the pressure created by litigation can move the negotiations forward and that specific litigative moves, such as strategic motion practice can break impasses.

            The client should also be educated as to the psychology of negotiations and importance of maintaining a positive negotiating environment.  The attorney must counsel the client to avoid doing things which will disrupt the process by needlessly antagonizing the spouse.  For example, blatant conduct with paramours can have profound impact on the negotiations, even though not directly relevant to any of the issues on the table.

• The critical role of perceptions

            It is generally true that each party must perceive that they will benefit by the proposed settlement for it to become a reality.  If one of them perceives that he or she is making all of the concessions or being disproportionately disadvantaged, it is not likely there will be an agreement.  The opposing spouse’s perception of benefit can be affected as much by the client’s behavior as by the substantive terms of the agreement, and dictates that the client play all cards close to vest, that he or she refrain from gloating over negotiating successes, particularly before the agreement is signed.  For example, if, after the other side makes a particularly important concession, the client’s visage resembles that of the Cheshire cat, the conceded issue can quickly find its way back onto the table.  Discrete behavior by the client is imperative if the negotiations are to succeed.

Next time:  Part III – A Dual Track Approach to Successful Settlements