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The Ten Commandments of Domestic Negotiations or
"Rules, In a Knife Fight?"

By Gregg Herman
The Practical Litigator, 1998
There is a wonderful scene in the movie "Butch Cassidy and the Sundance Kid." Robert Redford is going to fight the head of the gang for supremacy, but first he suggests they discuss the rules for the fight. When the much bigger and meaner opponent drops his knife to his side to ask, incredulously, "What? Rules, in a knife fight?", Robert Redford uses the opportunity to kick him in a very sensitive part of the male anatomy.

Usually, the parties are going through a divorce because there is a lack of trust, communication and cooperation in the marriage. When a legal action starts and lawyers get involved, this lack of trust, communication and cooperation does not lessen. Rather, it usually gets worse. A certain degree of trust, communication and cooperation are necessary to reach a settlement. Paradoxically, the very reasons that bring the parties to the bargaining table are the major impediments to settlement.

As a result there needs to be some basic rules in the divorce "knife fight." Here are a few suggested rules for lawyers to adopt, not to kick each other in sensitive spots, but to help overcome these fundamental impediments to settlement.

Rule One: Be Cordial. There is an old saying that you catch more flies with honey than with vinegar. The parties are 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. However, we do not practice law in a vacuum. 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.

Rule Two: Do Not Give Ultimata. Certainly, some issues are more important than others. There may even be issues that are non-negotiable. But stating these in the form of ultimata stop the negotiating process in its tracks.

Which of the following tactics, for example, are more likely to bring about a measured response leading to discussions of settlement and compromise:

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 or your client disagree, then please provide us with the reasons you disagree and what you think would be reasonable under the circumstances.

Clearly, Approach A puts the other side on the defensive. It is essentially asking for a fight and most lawyers do not need more than one invitation. On the other hand, Approach B is far more likely to bring out the type of reasonable discourse which can lead to a settlement.

Rule Three: Do Not Give Deadlines. On occasion, I have received settlement proposals with "sunsets" of, for example, 5:00 p.m. on a particular Friday. A sunset is really a threat, an ultimatum, which brings out the type of response discussed in Rule Two. Usually, these are not great proposals anyway or there would be no need for the sunset. After all, if the proposal was really that great, it would speak for itself and there would be no need for the accompanying threat.

Where the other side gives a "Friday at 5 p.m." deadline, try the following response:

Dear Joe:

My client was going to accept your proposal on Friday when she noticed that it was 5:10 p.m. See you in court.

The other lawyer usually then calls me and offers to extend the deadline. I then take the opportunity to explain to the other lawyer that the issue is not the particular time, it is that I do not want to be given a deadline. Try this, for example:

I promise that I won't threaten you during the settlement process, and I request that you don't threaten me.

Truth is, if the offer was that great for your client, they would not have had to resort to threats. And, if the offer was not that great, then nothing is lost by not responding. In any event, if you want the case settled, do not use deadlines any more than you would use any other type of threat or ultimatum.

Rule Four: 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 stone-wall discovery? The answer is obvious. Where the other side treats financial information as if it were a highly classified government secret, it makes settlement less likely. This tactic brings out the "What are they trying to hide?" question. This sort of mistrust is not conducive to settlement.

Further, there is always the ugly aspect of risking malpractice in recommending a settlement to a client based upon insufficient discovery information. If a lawyer does not believe that he or she has full disclosure, it is the lawyer's insurance on the line if the lawyer recommends a settlement. Many a lawyer will recommend a trial rather than a settlement to avoid such a risk.

On the other hand, here is a tactic which my office has used with great success in encouraging settlement: Where you represent the side with all the information, give it to the other side before they ask for it. After all, you know what they will need in order to settle the case. Instead of waiting for the initial request for tax returns, retirement plan information and the like, have your client compile it. Then, give it to the other side, organized and indexed. Tell the other side that you are doing it to promote an atmosphere for settlement and to save costs for both parties. You should also explain that the information is not exclusive and that your client will be pleased to also provide any additional relevant information which you might have inadvertently omitted.

By providing this information even before a request is made, you will have accomplished at least two positive things. First, if any court intervention is requested by the other side regarding discovery, the court will be impressed by the voluntary provision of large amounts of financial documentation. At least in my jurisdiction, family courts dislike discovery motions and routinely order everything to be provided unless absolutely outrageous. Second, and more important, providing the information voluntarily creates the type of atmosphere which allows opposing counsel to enter into settlement negotiations without the paranoia inherent in the cases where the stone-wall approach is used.

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 result, some cases sit and wait, whereas a settlement conference can begin the process of resolution. As discussed in The Joy Settlement by Mark Sullivan, 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.

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/her 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 the 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 aggressively pursue settlement. Almost all of his cases settle.

Rule Seven: 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. Unfortunately, a certain amount of legal services later turns out have been avoidable, but were utilized in the event that it was thought necessary at the time. Settlement should be attempted in every case, no matter how remote the prospect might seem. As Winston Churchill once said: "It is better to jaw, jaw, jaw than to war, war, war."

This issue usually seems to get back again to the question of ego. I have seen cases where the parties actually get along better than their lawyers! In fact, I know of cases where the parties could have settled the cases, if left to their own devices. While this is exceedingly rare in my experience, it should never happen. Lawyers should be conduits for settlement, not impediments.

Why do lawyers refuse to negotiate? Sometimes it is because of personality conflicts with the other lawyer. No question, some lawyers grate on each other. But no law has ever required settlement negotiations to be conducted in person. Using written negotiations takes most (although not all) of the personality conflicts out of the equation.

Sometimes, the gap between the positions seems far too wide to "waste" time negotiating. Even sitting down for negotiations seems to be a waste of time. Yet, it is amazing the number of times 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 that the gap cannot narrow unless there is some "jawing."

This does not mean, of course, that it is never proper to walk out of a negotiating session, suspend negotiations or even stop them. It does mean that is improper to never enter into negotiations to begin with. At least sit down with the other lawyer and see what is on his or her mind. And do not stand on ceremony! Making the first call is not a sign of weakness. Sometimes, the reluctance to call reminds me of the teenage boy afraid to call the girl for fear of rejection, while the girl sits by the phone, hoping for the call, but too timid to call on her own.

Rule Eight: Never Get Personal. There is a scene in the Godfather movie where a character is about to wiped out by the mob. One of the henchman tells the victim that the Godfather wants him to know that it is not personal, it is just business.

Clearly, much of what is happening in the divorce is personal between the parties. It should never be personal between the attorneys, no matter how sensitive or important the issues. Many times, this is not a problem. The vast majority of the lawyers I deal with are pleasant and many I consider friends. It is only a very small minority where it really takes an effort to maintain civility.

Nonetheless, there are no points in being hostile. In nearly 20 years of practice, I have never had a confrontational conversation with an attorney who said the following: "Gregg, I am wrong, you are right. Can you forgive me for taking such a silly position?"

A good rule of thumb: Never fight a battle, the best you can do is tie. In court, with a judge present, there is at least a chance of winning. In private discussion with the other lawyer, there is absolutely no chance. At best, there will be a standoff.

There are times where in order to control my temper (my wife will be surprised to learn that I even have a temper), I terminate a conversation. Yet, even an abrupt termination of a conversation is preferable to saying what may be on my mind.

The bottom line is simple: You cannot settle a case if you do not talk to the other side.

Rule Nine: Never Get Angry at a Settlement Proposal. If a settlement proposal comes in writing, we, of course, immediately send it out to our client. It is not unusual that our client calls us after reading, livid with anger at how outrageous the proposal is and how far from what the client perceives as fair.

True, some proposals are so low or so high as to be insulting. Some lawyers ask for the stars hoping to get the moon. Others misinterpret the parameters of reasonable settlement. Whichever is true, at least there is an attempt at settlement. Rather than get angry, if the proposal is in the stars, then start subterranean (or whatever is the opposite of the stars!). If the proposal is unreasonable due from a misunderstanding of reality, then educate the other side. But never get angry - any proposal, even a bad one, is better than no proposal at all.

Rule Ten: Be Prepared!. Going into settlement negotiations without a prior face-to face meeting with your client is as wrong as going into trial without such a meeting. Worse, it wastes the time and money of not only your client, but the lawyer and client on the other side. Spend the time with the client to discuss starting points and ending points for negotiations. Make sure the client understands that, although it is in many ways the equivalent of a knife fight, there are rules which will be followed.

If you make a habit out of not being prepared for settlement negotiations, you will earn a reputation for not being prepared. At least my reaction to lawyers with this reputation is not to prepare myself for the negotiation session. The result is that it is far less likely that the case will be settled. On the other hand, if I know that the lawyer on the other side prepares hard for settlement, I will work hard as well. The result is a good session which will make great progress towards a resolution, if not reach one.

True, there are some lawyers who bluff well. But most do not. It is usually clear early in the negotiating session the degree of preparation the other side put in to preparing. In many settlement conferences, after both sides lay out their positions, there is a palpable pause as both sides hesitate to see who will make the first compromise. If it is clear that other side is not prepared, why would we start to compromise? By not being prepared to negotiate, they are not prepared to match our compromises. The result is a standoff. The bottom line is to follow the Boy Scout motto: Be Prepared!
Conclusion

Following these rules do not, of course, guarantee a settlement. They do, however, create the type of atmosphere which makes a settlement more likely. As with many other things in life, improving the odds is often the best we can when we do not have full control over the circumstances. And, we owe it to our clients to do the best we can.

Perhaps the "joy of settlement" was best described by Gandhi, who after helping parties settle a case wrote:

My joy was boundless. I had learnt the true practice of law. I had leant to find out the better side of human nature and to enter men’s hearts. I realised that the true function of a lawyer was to unite parties riven asunder. The lesson was so indelibly burnt into me that a large part of my time during the twenty years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases. I lost nothing thereby - not even money, certainly not my soul.¹

Footnotes

¹ "The Story of My Experiments With The Truth". Thanks to Prof. Andrew Schepard of Hofstra University Law School for finding this quotation.

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