Sometimes I draft a Separation Agreement, send it to the other side, and receive a response that says “My client rejects your proposal.”

Or the other side will send me a proposal and my client says, “It’s ridiculous.  I don’t like anything about it.”

Both responses leave something to be desired in moving the case forward.  So my reply is always, “What, specifically, don’t you like about it?”

This simple question seems to disengage emotion and engage logic.  Once I get the other side, or my client, going through the document item by item, we can discuss options, concessions and counterproposals.  I put these in a letter to the other side and we can then focus only on the objections, which narrows the issues to be negotiated.

When Process Is More Important Than Price

Sam’s Story

Sam, a lawyer friend of mine, goes to a flee market and sees an ornate, antique grandfather clock that he likes.  “How much for that clock?” he asks.

“This clock is truly beautiful, is she not?” says the owner, a man with a handlebar moustache, who lovingly puts his arms around the clock.  “A true heirloom.  I am sad to see it go, but I will reluctantly part with it for $1,500.”

“Is that the best you can do?” says Sam who is known in legal circles for his negotiating skills.  “I’ll give you $400 for it.”

“I could not possibly accept $400,” says the owner, “but for you, today only, if you pay with cash, I will sell it for $1,400.”

The bargainers go back and forth, parry and thrust, feints and jabs, until finally, a long time later, a deal is struck and the clock is sold to Sam for $800.

Bill’s Story

Bill, a banker I know, goes to the same flea market on the same day and spies an ornate, antique grandfather clock.  He inquires about the price and is told it is $800.  He says, “I’ll take it.”

Both men leave with their grandfather clocks.  Which one do you think is most satisfied with his new purchase?

So it is with divorce negotiations.  There is a rush to get to the final numbers.  But if one party feels rushed, they may dig in their heels.  Sometimes people just need the process of settlement discussions to feel satisfied with the final outcome.

As I kiss my wife goodbye this morning, she says “Have a nice day.”

“I would,” I tell her, “but my enemies have other plans.”

I received another one of those letters that annoy me from opposing counsel today.  This one starts out by saying the wife is disappointed in the husband’s settlement offer.

It would surprise me one day to receive a letter that says opposing counsel’s client is delighted by my client’s settlement offer.

He might as well be telling me that it is raining outside or the sun is shining.  Thanks for the weather report, but what does that have to do with the business at hand?  The letter goes on for three pages of counterproposals, but I am already put in a too bad a mood by his beginning to view them with much favor.

That is why I always try to begin such letters with something like, “Thank you for your proposal.  It was a pleasure speaking with you.  I look forward to trying to settle this case with you.”  You get the idea.  People are more likely to settle cases with people they like than people they don’t like.

An article from the St. Louis Post Dispatch says the hard economic times are causing some couples to stay together before, during and even after they divorce.

With home values shredded and retirement assets dwindling, many unhappy couples are realizing they don’t need to spend more money on divorce lawyers, and they are more willing to compromise and settle.

One husband said he didn’t have the money to move out, so the couple stayed together during the divorce, and when it got too stressful, he went to the movies or she went out with friends.

“My attorney was very up front with me,” he said. “She said, ‘The more you guys (argue) about this, the more it’s going to cost you.’”

1989:  Steven Spielberg to Amy Irving – $100 million.

1994:  Neil Diamond to Marcia Murphey – $150 million.

2006:  Michael Jordon to Juanita Jordon – $168 million.

2009:  Mel Gibson to Robyn Gibson – possibly $500 million.

Someone once told me you only have to practice divorce law for six months before you become a social worker.  I like to think I am pretty attuned to the emotional aspects of divorce, but every once in awhile, I get a situation that stumps me.

In those cases, I call on my experts, namely (a) my wife who intuitively knows far more about relationships than I ever will, and (b) a friend who works in sales and is a genius in these matters.  I keep the names confidential but describe the problem to them in general terms.

Today, I got in one of those situations.  I was negotiating by email with a lawyer on a case in litigation.  We were pretty close in dollars to a settlement.

I wrote, “Why don’t we settle this case.”  I was surprised by his answer.

“The problem is the way your client treats me and everyone else connected with me.”

How in the world do you respond to that?  I am trained to solve legal problems.  But this is not a legal problem.  So I ask my experts.

My wife took a practical straightforward approach.  She said I should say, “Look, we all want to get this over as quickly, expeditiously and amicably as possible.”

My friend in sales had another approach.  He suggested “If you will write me about the specifics, I will speak with my client about it.”   Always ask questions.  Sometimes, when the other side has to write it out, and think about it, they look at what they have written and decide it is not all that important anyway.

I decided that both approaches were excellent, so I combined them into one email.  I will be interested to see what response I get.

There are a lot of hurt feelings in divorce.  These frequently hinder settlement negotiations and mediation.  Sometimes you can’t get to the financial resolution because you haven’t dealt with the hurt feelings.

“Many mediations are centrally about a damaged relationship,” writes Dr. Carl Schneider.  “Trust has been broken. When offered with integrity and timing, an apology can be a critically important moment in mediation. An apology, when acknowledged, can restore trust.”

I have followed Dr. Schneider’s advice in mediations and encouraged clients to give sincere, ritual and witnessed apologies.  It doesn’t always work, but when it does, it has moved mountains in some cases.  It is surprising to see how an appropriate apology can melt resistance and open doors that have previously been closed.

What happens when an irresistible force meets an immovable object?  A lawyer makes a settlement proposal for a divorce client.  The other side sends back a counterproposal, which the client doesn’t like.

“What do you advise next?” asks the client.

“Send back another proposal with some concessions,” the lawyer says.

“What if I don’t want to make any concessions?”

“Then you are at an impasse.”

There are several ways to break an impasse.

(1)  Litigation. The ultimate way is to have a judge decide.  But this is expensive, time consuming and uncertain in outcome.

(2)  Keep Talking.  Explore other options to meet the needs of each party.  I have been in negotiations where a creative idea just seems to fall out on the table in the conversation that had not been there before.

(3)  Segment the Problem. Break the dispute down into separate smaller pieces and try to get agreements on one piece at a time until you have solved the whole problem.

(4)  Bring in an Expert. You can bring in an expert to help break an impasse such as a therapist for issues involving children or a financial planner for issues involving money.

(5)  Do Nothing. One option is to just do nothing until somebody blinks.  Sometimes I have told the parties, “You are twenty thousand dollars apart and it will cost you each ten thousand dollars to litigate this case.  Does anyone have any ideas?”  Then I sit in silence for a minute, two minutes, sometimes ten minutes, until finally someone says, “Well I’ll split the difference if you will.”