An emotional investment in "winning" often makes negotiations impossible. It springs from our competitive spirit and the images of defeat that follow a person who unilaterally "gives up" or reduces demands. No on wants to come in second. Therefore, it is important that you stop and put the brake on your client by jointly evaluating the costs and benefits of keeping the present position. Negotiations are not a contest. With some creative thinking, a better deal can be found for both spouses.

Negotiators who are oriented toward "total victory" or "unconditional surrender" look at the process as a war, in which the goal of a divorce settlement is a dead competitor. A client who has been dealt a humilitating defeat by his wife who obtained total victory in a one-sided, forced settlement, is a walking time bomb. This husband will eventually talk to another lawyer who will not hesitate to confirm that the husband agreed to a bad deal, and the forced settlement will no longer be final. The parts of the marital agreement which are not "cast in stone" (such as child support and maintenance) become the new battlegrounds.

In some instances, the law permits even the property settlement to be set aside for as long as three years after the agreement was signed, usually for such narrow grounds as fraud, deceit, and concealment. This area is also ripe for new battles if the deal was unfair. Such agreements carry within themselves the seeds of their own destruction.

As a lawyer I watch out in particular for the highly competitive, aggressive, narrow minded client. Although they cannot understand why they are never able to conclude a deal, the simple answer is that they do not know how to reach cooperative agreements.

Illustration:

Jim concealed a portion of his stock options from his wife. The options would not be exercised for another year, so he assumed this "white lie" was not significant. He was wrong. His wife had done her homework, knew of the concealed stock options, and waited for him to make the opening offer. He did, and she responded with a classic rejoinder: "Okay, Jim, I like the concept of awarding all the stock options to just one person, but let's reverse the position. I'll take the options and you take the pension". Jane reversed the positions. If Jim had wheels, he could not have backed out of that negotiation meeting faster.

Another common type is the woman who comes to my office a year or so after signing a disadvantageous agreement with a highly competitive, gamesmanship-type husband, like Jim. She is shy, self-effacing, low in self-esteem, often negotiating without the benefit of a lawyer, and is taking whatever her husband offers. One such woman, I'll call her Sheila, ended up with an agreement saying she could not move with the children outside the state.

Sheila later married the man of her dreams whose job would move them 2,000 miles away. Sheila wanted to maintain this happy marriage, but knew the children would suffer if they had to move in with her former husband. The ex-husband still had the need to dominate. Instead of working toward the cooperative goal of reasonable access for both parents, such as expanded summer visits with the children, he simply refused to grant the children permission to leave the state.

What can be learned from this problematic story? For the mother, the lesson was not to negotiate from a stance of weakness and lack of information. For the father, it was never to press your opponent. By the time Sheila was forced into court, she was like a she-bear with a salmon in her mouth. Her cubs were on the other shore and the father was in between.

Because they could not negotiate, the mother sought the court's permission to leave the state, and the court noted well the father's failure to cooperate. The court gave him less access to the children and required him to pay all airfares back and forth.

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