No. 2 in a series: The psychology of litigation and settlement
There’s far more to family law than an encyclopaedic knowledge of, well, family law. A great family lawyer will have many more skills in his or her locker.
Not least are negotiation skills. Many family law cases get solved through negotiation. And it’s probably far more strategic than you ever imagined. Here’s our cunning plan, broken down into five methods.
1 Develop objectives
Firstly, we have to get the ‘big picture’ and understand your objectives. Then we discuss with you whether they are realistic in the context of the law and the facts of your particular case.
Don’t feel immediately disheartened if this bursts your bubble. It’s better to face the reality from the outset and develop an effective strategy for getting the best result possible.
2 The principles of negotiation
Greater knowledge means greater leverage, and information is power. We’ll be looking to find out the who, what, where, why and when of your case, but we’ll also want to learn motivational facts such as motives, fears and concerns.
We’ll also need to know the interests of the parties and anyone else who may have a valid interest that requires them to be involved in the legal proceedings.
Once we’ve got the information together, we’ll work on a strategy. You may think you have a ‘smoking gun’ document or piece of information and we will guide you through the law and procedures on whether or not this is relevant and possible to rely on.
We also negotiate when leverage is high. Leverage is a situational advantage that comes from superior knowledge. That means gathering information through investigation rather than just relying on what the other party tells you or shows you.
As long as you investigate and gather information lawfully, then you will potentially uncover information that the other side doesn’t think you have or has tried to keep from you.
3 The stages of negotiation
This is where we gather information. Some family lawyers miss a trick by ignoring this phase or by being less than thorough.
It’s important firstly to quantify both sides’ interests. That could be how much a party is wiling to pay to settle, but also motivating factors that might encourage settlement. The simple act of making an apology to an aggrieved spouse could reduce their demands and reduce hostility, creating a better environment for negotiations and settlement.
A good negotiator will then control the agenda, considering issues such as making an offer face-to-face or by letter, telephone or during mediation. We’ll consider the location of the meeting, who makes the first offer, and in what forum.
We’ll look at what’s best: argument, threat or a promise of some future action in return for a bargained-for outcome. We’ll always be prepared, with a sound structure to our detailed argument and offer, and with documents in support of your position. We’ll avoid emotional language and emphasise the most persuasive points.
Before entering bargaining, it’s wise to have a target goal range within which to settle. We’ll fully brief you on our strategy so that you don’t give too much away in negotiation or interim court hearings.
4 Negotiation strategy in mediation
Mediation is negotiation through an independent third party. If you choose this method – and it’s definitely not right for everyone – you need to consider:
A Non-verbal communication
You will be sending signals through body language when you enter the mediation room. After all, half of all communication is non-verbal.
That’s why putting parties in separate rooms isn’t recommended. They can’t see each other’s non-verbal responses to offers. It’s best to present offers face-to-face so you can read their reactions.
In problem-solving negotiation, we focus on addressing the needs of both parties, rather than a win-lose arrangement. Here, we’re looking for a win-win. This is best when the parties want to maintain a relationship after the negotiation.
C Negotiating terms
Preparation is everything. You need a clear idea of what you need and what you want. Invariably, the two are not the same. We can help you identify your bottom line.
D Control negotiations
Aim to control the agenda, find the best way to resolve a dispute and influence the choice of method.
Negotiation is king in most family law cases. It’s always preferable to choose the best time to negotiate rather than waiting for a judge to suggest mediation or impose Orders on you.
A good family lawyer will also move through the assessment, persuasion and bargaining phases only when prepared for the next stage.
For an initial FREE consultation on any aspect of family law, call Manders Law on 01245 895 105 or email us here.