Negotiation

Negotiation of a family law matter is direct discussion of differences between the parties to resolve their disputes.  Negotiation can take place through lawyers or between the parties themselves over a kitchen table (often called the “Kitchen Table” approach) or anywhere the parties choose. 

In settlement, each party usually has a “wish list” of things they would like from the negotiations.  Some items may be more important than others.  As such, each party will negotiate for what is higher on their wish list and is more willing to give up the lower priority items.  In a perfect settlement, both parties get the high-priority items on their lists.

In a contested trial, the court decides which items on the list a party does or does not get.  The court may award a lower-priority item instead of a higher-priority item.  Frequently, in a contested trial, neither party gets what they want.  It is important to note that most divorce cases eventually settle outside of court.  

While a settlement is no guarantee that the future relationship of the parties will be amicable, a contested trial is guaranteed to be detrimental to the relationship.  The ultimate result is likely to be generally unsatisfactory to both parties, and at the end of the trial animosity between the parties is usually more entrenched.

Negotiation Between the Attorneys

One party may be represented by counsel or both parties may have attorney representation. 

1. Both parties have attorneys:

   In this scenario, each party is represented by his or her own attorney.  The attorneys work together, through settlement negotiations, to reach amicable decisions without ever meeting in a courtroom.

2. Only one party has an attorney:

   The parties will negotiate amongst themselves.  The attorney then drafts the agreement representing the parties’ decisions in negotiations.

Negotiation Between the Parties

The parties can negotiate on their own or with assistance from another person or entity. An attorney can then prepare an agreement representing the parties’ decisions.  It is always recommended that each party speak with independent counsel for advice to learn about their legal rights and obligations before signing any agreement. 

Things to keep in mind during negotiation

• Keep your kids out of it: Don't talk to your kids about the divorce. This includes venting and criticizing the other parent to your child. Don't let your kids read legal paperwork or have it lying around the house for them to accidentally find. In fact, you might try saying a few kind words about the other parent. Kindness is a good thing.
• A little compromise goes a long way: You might be surprised that when you take a few steps towards compromise, your spouse may be willing to meet you, even if it's only a little bit. Divorce is a process, and one little step still means that you're moving one step further towards your goal.
• Reach out and talk things out: While this may not always be a realistic option (such as in Protective Order cases), it may be something to consider if you want to move from a litigated divorce to a negotiated one.
• Try and understand your spouse's point of view: Take one minute to consider your spouse's point of view. Your spouse may be proposing something reasonable. So, taking the time to understand their point of view, may help alleviate the pressure.