Divorce Negotiation Rule Six - Never Negotiate Backwards

Backwards negotiating is what occurs when, say, the initial offer by a plaintiff is for $100,000 and the second offer is for $200,000. Or if a defendant's offer, once rejected as too low, goes lower in subsequent offers.

There are times when facts change which may alter settlement positions. However, assuming discovery was conducted before settlement (as it should be), once a proposal is made, subsequent proposals should be closer to the other side's position, not further away.

Backwards negotiating is a form of intimidation. It tells the other side that they are idiots for not jumping at the initial offer and that subsequent offers will be less unless they jump at the present offer. While the other side may in fact be idiots, it is not conducive to settlement to educate them to that fact. Moreover, it is not good-faith negotiating, and the response of a party who receives a backwards offer should be to stop negotiating. If a proposal is made in good faith, then the rug should not be pulled out from under it. After all, lawyers, like everyone else, do not like being told that they are idiots (even if it is true). A lawyer's reaction to such an opinion is far more likely to be to roll up the sleeves for a fight than to discuss exactly how much of an idiot the lawyer is.

Put another way, in effective negotiations, the object is for both lawyers to look good to their respective clients. By negotiating backwards, the message to the other spouse is that his/her lawyer made a mistake in not recommending a previous settlement offer. While that might be true, the reaction of the opposing counsel is unlikely to be to admit the mistake. Rather, the usual reaction is to want to go to trial to prove that he/she was right in turning down the proposal.

Some lawyers do not agree that they have any interest in making the other lawyer look good. Those are the lawyers who end up in trial most often. For those lawyers who prefer to settle cases, the ego of the opposing counsel is a factor which needs to be considered.

I know of a lawyer who is an outstanding negotiator. Every offer he makes is made with the view not just of what is right for his client but how the lawyer on the other side will treat the offer. His theory is that if the other lawyer has room to get more for his client, that lawyer will be a hero to the client and will aggressively pursue settlement. Almost all of his cases settle.



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