Divorce Negotiation Rule Five - Don’t Be Afraid of Taking the First Step
Some lawyers seem to have a fear that making the first step toward settlement is a sign of weakness. As a result, some cases sit and wait, whereas a settlement conference can begin the process of resolution.
In settlement, timing is everything. To miss the timing because of fear of appearing weak does one's client no good.
To put it another way, someone has to take the first step, or no case will ever be settled. To view this first step as a sign of weakness is a sign of insecurity on the part of the lawyer. On the other hand, taking the first step can be a sign of strength: The lawyer is so confident in his or her case that the supposition is that the other side will want to settle to avoid the embarrassment of the eventual defeat in court.
There have been several times in my career that I have almost missed an opportunity due to stubbornness, arrogance or, maybe, insecurity. Once, for example, we were in court on the day of trial where all previous efforts at settlement had failed.
Communication had ceased several weeks before, even though we had made an offer which we were amazed was not accepted. Typical of most court hearings, a lengthy delay preceded the hearing while the court dealt with other matters. During the delay, I mentioned to my client that our last proposal was really a "win-win" offer and should have been accepted. My client said that perhaps I should bring it up again to the other lawyer while we were waiting. Every aspect of my ego said no, that the offer was rejected and that to ask again was a sign of weakness. Nonetheless, at my client's prodding, I approached the other lawyer and told her that our prior offer was still open. She thanked me, talked to her client and they accepted the offer. We never did find out why they did not accept the offer initially or approach us first during the wait in court. What is clear is that if I had not listened to my client and overcome my ego, a "win-win" settlement would not have occurred.
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GOOD FAITH – Negotiation between spouses works when both act in good faith. A negotiated settlement dovetails easily in an uncontested divorce. Meeting in a neutral place, the spouses talk face to face and often offer tradeoffs of interests that they might otherwise claim. In this routine, their lawyers retreat to the role of advisors who keep their clients on track, moving toward a fair and reasonable settlement.
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