Why Would Anyone Not Negotiate?



With the option of negotiation available, why do so many couples go through the expense and destructiveness of a divorce trial? Ken Kressel summarizes the more common hurdles couples face on their pathway to settlement in the previously mentioned book, The Processes of Divorce. His observations are good markers for the lawyer interested in encouraging direct couple negotiations. These markers are: high conflict, destructive communication, inexperience as negotiators, scarcity of resources, low self-esteem, high stress, and imbalance of power.

Each of these factors is discussed below:

When Not to Encourage Direct Negotiations

There is one client profile which, if observed, should not engage in direct spousal negotiations. If the client's spouse clearly does not evaluate his outcome by how well he has done, but by assessing how poorly your client has done, chances are this couple is not going to succeed in direct negotiations. This type of spouse is only satisfied if he thinks your client has been forced to accept a terrible agreement. In order to reach settlement, your client may have to give up too much.

Your client should also avoid engaging in direct negotiations with a spouse who is dominating, fiercely competitive, forceful, tough, arrogant, or uncooperative. This type makes high opening demands, uses threats, sticks to his or her position, is unwilling to give out much information about the case, is concerned with maximizing outcome, and takes a "gamesmanship" approach to negotiation. Determined to score a clear victory, his or her main objective is to outmaneuver the other spouse. Do not bother negotiating. It is a waste of time if either the spouse or the attorney exhibits these characteristics. Wait it out for the protection of a judge.

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Lowell Halverson halvl@accessone.com
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