September 2013 GREGORY NEGOTIATION REPORT
DIVORCE NEGOTIATION SKILLS
About 85% of all divorces settle prior to trial, but too many times in conference rooms at the court house on the day of the trial when there is intense pressure and stress. A better settlement can result from TTTP, Timely, Thoughtful, Thorough Preparation.
- Learn the facts of the case from your client’s perspective and from the opposing party’s perspective.
- What are the personality dynamics of your client, the opposing party and the opposing attorney?
- What are the interests of each party, the underlying motives, concerns, goals, and needs that cause each party to have their respective positions. Interests are the important things a party cares about. You must know not only what they want, but more importantly why they want it.
- Without an accurate and clear understanding and assessment of interests, a person is negotiating blindly.
- Do not make an initial offer before you have a chance to fully explore each other’s interests. Are the interests economic, non-economic or a combination of the two?
- What is the BATNA (best alternative to a negotiated agreement) for your client and the opposing party? If you don’t know, you are not prepared to negotiate or mediate.
- If you enter a negotiation with a list probing questions rather than a list of arguments and legal recitations, you are more likely to learn your opponent’s interests.
- Whether dealing with your client or your counterpart, continue to ask questions until you stop learning anything new and then summarize what you have learned. Your client or your counterpart will feel that they have been heard and understood, a magic moment.
- If your client wants to dump all their anger on their spouse during the negotiations, ask your client if that tactic has been productive in the past.
- Every offer has at least two parts: (1) what each party gets, but just as important, (2) the message that goes with the offer. Is the message affirming or demeaning? How does the message affect emotion, ego and perceived fairness?
- What is the zone of possible agreement, ZOPA?
- Successful negotiators know the interests and BATNA of each side, as well as the ZOPA. They know how to examine the interests from the other side’s point of view.
FORGET ABOUT IT
In the August 2013 Gregory Negotiation Report, I explained the case of In the Interest of S.K.D. and J.E.D., Tex. App. Lexis 10877 (Tex. App.—-Dallas August 27, 2013)(mem. opinion)(Cause No. 05-11-00253-CV), which ruled that a trial court in a TFC chapter 156 modification proceeding was not bound to enter an order in strict compliance with the MSA reached under TFC chapter 153. On September 11, 2013, the Dallas COA, on its own motion, withdrew the S.K.D. opinion. The opinion is no more, so forget about it. An MSA that meets the statutory requirements is binding on the trial court in a modification case, just as we thought all along.