Divorce Negotiation Rule One - Be Cordial
There is an old saying that you catch more flies with honey than with vinegar. By the time the parties are divorcing, the parties are pretty much used to dealing with each other by yelling and screaming. The lawyer should not posture in front of the client and should tell the client that he/she will not posture. Clients watch TV and need to be told that effective advocacy does not mean putting on a show for the client's benefit.
This is not as simple as it sounds. Unfortunately, television has conditioned many clients that cordial conduct is not what to expect from a lawyer. Rather, the TV lawyer postures, threatens, intimidates and is rude. Then comes the commercial while the other side backs down.
It would be nice, but naive, to suggest that it is sufficient merely to be cordial. We do not practice law in a vacuum, however. In family law, we need to give careful consideration to every step we take due to the incredibly large emotional stakes the parties have in the litigation. It is these emotional stakes, along with the misconception regarding attorneys, which cause the parties to want to emotionally involve the lawyer.
To deal with this, the lawyer needs to carefully explain to the client at the outset the reason for a cordial atmosphere with opposing counsel. In some cases, this can be quite easy, and in fact the client may want nothing else. Other times, the client will be quite shocked that the lawyer will be polite to the "enemy."
The explanation may be based on increasing the likelihood of settlement. After all, most clients want their cases settled. These clients will appreciate being reminded that settlement is easier if both sides behave with cordiality, rather than with threats and intimidation.
Other clients can be reached through their pocketbooks. If lawyers maintain civility towards each other, it is far easier to pick up the phone and discuss issues. If they cannot do so, then the result is innumerable court hearings. It is, obviously, far cheaper to have a phone conversation than to go to court.
The method which gets the understanding through to the client will, obviously, depend on the individual client. What is important is that the lawyer explain the strategy to the client at the outset.
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GETTING STARTED -- In most divorces, one spouse wants out and one does not -- at least at the onset. The person who is left may try to stall, sometimes in hope of a reunification, but as the divorce progresses, he or she moves toward the point where both spouses understand the marriage is over.
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Basic Principles of Law for Construing Separation Agreements
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