Right for Me?:
Tips for settling your divorce case through mediation
By Anita Cutrer
In few other areas of law do the parties to a lawsuit share
an intimate a knowledge of each other as do those in a divorce
case. In addition, in few other areas of law will the parties
have an ongoing relationship with each other after the lawsuit
is completed. In a car accident case, for example, it is highly
unlikely that the parties will have known each other before
the case or will see each other after. In a collection action,
they certainly will not have a future relationship. Yet in divorce,
the parties have had the most intimate contact possible prior
to the lawsuit, and if there are children -- regardless of whether
the children are minors or adults, the parties will have a future
As a result, the process of a divorce case tends to be different
from that of other cases. Two people who once were (and maybe
still are) deeply in love often can grow to hate each other
with passion. It is easy for this passion to lead to litigation,
and the conduct displayed during the lawsuit may affect the
parties' relationship for many years to come.
While settlement of a dispute is certainly no guarantee that
the future relationship of the parties will be amicable, a contested
trial is guaranteed to be detrimental. Things are said that
cannot be unsaid. The ultimate result is likely to be unsatisfactory
to both parties. The end of the trial is akin to the final round
of a 15-round boxing contest, with both parties exhausted and
hanging on for dear life.
The difference between a settlement and a contest boils down
to one simple precept: Neither party will get everything he
or she wants. Both parties have a "wish list" but
they must prioritize their list. In a settlement, each party
can negotiate for what is higher on their list, giving up the
lower-priority items. Conversely, in a contested trial, the
court decides which items on the list the party does or does
not get. The court may, either intentionally or unintentionally,
award the client the lower-priority items instead of the higher-priority
items. In a perfect settlement, both parties get the high-priority
items on their lists. Frequently, in a contested trial, neither
The following are rules that, while not absolute, apply to
the vast majority of family law settlement negotiations.
Rule One: Be Cordial
You may be used to dealing with your spouse by yelling and screaming
at each other. But "posturing" is not helpful in a
negotiation. This goes for the lawyer too. Many clients ask
"Are you really on my side?" when the lawyer is friendly
as opposed to posturing or acting aggressively for show. Cordiality,
especially by the lawyer, is not disloyalty to the client, but
rather an effective means of settlement. It is not a sign of
weakness, but strength.
Your lawyer is most likely friends with the opposing lawyer,
but this does not keep that lawyer from being a good advocate
for you. In most cases, professionalism and civility lend themselves
to getting a better deal for you in the long run. As the saying
goes: "If you want to get into a wrestling match with a
pig, you have to lie down in the mud -- and the pig will at
least enjoy it."
Rule Two: Do Not Give an Ultimatum
Certainly some issues are more important than others. There
may even be issues that are non-negotiable. But stating an issue
in the form of an ultimatum stops the negotiating process in
its tracks. Which of the following tactics is more likely to
elicit a measured response leading to discussions settlement
· Approach A: Here is a settlement proposal.
You have 48 hours to accept it, or it is withdrawn.
Approach B: Here is a settlement proposal. It contains what
we believe to be reasonable positions on all issues. If you
disagree, please provide us with the reasons you disagree and
what you think would be reasonable under the circumstances.
Rule Three: Make Full Disclosure Voluntarily and Freely
Ask yourself: Are you more likely to settle a case where the
other side has given you everything you need voluntarily, freely,
and openly, or where they stonewall discovery? The answer is
obvious. When the other side treats financial information like
it was a highly classified government secret, settlement is
less likely. This tactic raises the question, "What are
they trying to hide?" Mistrust is not conducive to settlement.
If you are the party with access to most or all of the information,
it is best that you allow your attorney to give the information
to the other side before they ask for it. After all, you know
what they will need to settle the case. Your attorney will tell
the other side that you are voluntarily providing the information
to promote an atmosphere for settlement and to save costs for
both parties. He or she will also explain that if there is further
information that is only accessible through you, you will be
pleased to provide any additional relevant information that
you might have inadvertently omitted.
Rule Four: Don't Be afraid of
taking the First Step
Many clients feel that taking the first step toward settlement
is a sign of weakness. As a result, some cases sit and wait,
even though a settlement conference could begin the process
of resolution. Timing is essential. To miss the timing because
of fear of appearing weak does you no good.
To put it another way, someone has to take the first step,
or no case will ever be settled. Viewing this first step as
a sign of weakness is an indication of insecurity on your part.
Taking the first step is actually a sign of strength: After
all, you are so confident in your case that you assume the other
side will want to settle, to avoid the embarrassment and cost
of eventual defeat in court.
Rule Five: Never Negotiate Backwards
Backwards-negotiating is what occurs when subsequent offers
are further away from settlement than previous offers. There
are times when facts change that may alter settlement positions.
However, assuming no major changes or new discoveries, once
a proposal is made, subsequent proposals should be closer to
the other side's position, not further away.
Backwards negotiating is not good-faith negotiating because
it seeks to punish the other side for rejecting a previous offer.
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.
Rule Six: Never Refuse to Negotiate
True, some cases are harder to settle than others, and some
cannot be settled. But you will never know unless you try. Settlement
should be attempted in every case, no matter how remote the
prospect might seem.
Sometimes, the gap between the positions seems far too wide
to "waste" time negotiating. Yet, it is amazing how
often the gap narrows dramatically during a negotiations session.
Sometimes it is because the gap was there at the beginning only
for positioning. Sometimes a party recognizes the weakness of
his or her position. The point is, the gap cannot narrow unless
there is some communication.
Your attorney understands that you may be reluctant to schedule
a negotiations session. It might be helpful to remind them that
several years ago, Yitzhak Rabin and Yassir Arafat shook hands
on the White House lawn after spending years swearing eternal
hostility. When severely criticized in his own country for making
peace with his sworn enemy, Rabin replied, "You only need
to make peace with your enemies -- you are already at peace
with your friends."
Rule Seven: Never Get Angry at
If a settlement proposal comes in writing, your attorney will
forward that to you immediately. It is not unusual for a client
to call the attorney just after reading it, livid at how outrageous
the proposal is and how far it is from what the client perceives
It is true that some proposals are so low or so high as to
be insulting. Some ask for the stars, hoping to get the moon.
Others misinterpret the parameters of reasonable settlement.
Whichever is true, at least there has been an attempt at settlement.
Rather than get angry if the proposal is in the stars, then
start from the ground up. If the proposal is unreasonable because
the other side misunderstands the reality of the situation,
then educate the other side. In most cases, any proposal, even
a bad one, is better than no proposal at all. At least you will
have a starting point.
You should work with your attorney to go over an opening proposal,
which should leave room for negotiation. You should then educate
your attorney as to what movement form the opening proposal
is acceptable. Finally, you need to specify the "go to
hell" point where litigation is better than accepting the
last proposal from the other side. This point is often a moving
target, and although it can be discussed ahead of time, it will
be truly known only at the instant the judge bangs the gavel
and says, "Call the first witness." It is critical
that you let you attorney know the parameters for the first
There are numerous ways to negotiate. In some cases it is with
"four-way" meetings, some are through letters, some
are through fully drafted proposed Decrees or Orders, and more.
Although there are always exceptions, following these rules
will create the type of atmosphere that makes a settlement more
likely. As with many other things in life, improving the odds
is often the best we can do when we do not have full control
over the circumstances. You owe it to yourself to do the best