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How to Negotiate a Settlement and Avoid Trial

Exerpt from Taking Control of Your Divorce: The Attorney’s Perspective, by Marguerite C. Smith, J.D.

How to Negotiate a Settlement and Avoid Trial

Remember that in most cases both parties are petrified of going through divorce. This is so whether they want to have the divorce or do not want to have the divorce.

Common concerns:


Visitation with the children
Making it financially
The social implications (who will my circle of friends be now?)
Will anybody find me attractive again (yes they will, but it is something people often wonder)
A sense of failure

Knowing that the other side has his or her own fears, should be a considerable help to you in your divorce negotiations. This applies whether you negotiate through an attorney or just the two spouses. For discussions on Settlement and Mediation options, see Law.

Helpful tips:

1. Know what the law is and work out the parameters for reasonable settlement.

2. See where there may be a “give and take” natural to a negotiated settlement. You know your areas of give and take. Try to work out what your spouses are.

3. A good way to achieve a settlement is to put yourself as much as you can in the shoes of the other party. Pretend that you ARE that person. A technique that is often used in negotiation exercises is to put two chairs facing each other. You state your peace. Then you move to the other chair and pretend to be the other party. You state peace of the other party from their point of view. You then switch back to your chair and play your own role again. Try not to identify too particularly with any particular role. While you are playing the male (you are female) really play that role. Understand that person’s hopes and fears as they approach this divorce. Try to identify your spouse’s major issues. They may not be your major issues, but if they are important to the other side, they could hold up a settlement. Sometimes if you give a little on a matter that is of great importance to the other side, you may win a greater prize in your own eyes in the end. The reason for this is, if one person finds one thing very important, they may well be willing to compromise on an issue that you find very important if they can succeed on theirs.

4. Keep anger, blaming comments and nasty comments out of the proceeding. This type of conduct is the surest way to bring settlement negotiations to a speedy end, reopen wounds, and have the two of you battling in court at a great emotional and financial expense.

5. Treat the other spouse and his/her attorney if applicable with respect. A good way to act is to look at the other person in the eye (if possible during this tough time). The purpose of this is to look like you are concentrating and giving them respect. Hear them out. Listen to what they have to say. Really listening encourages the other side to continue negotiation and helps you to see the strengths and weaknesses of their case.

Read negotiation books, e.g.

Negotiating Skills by Tim Hirdle
Getting to Yes by Roger Fisher and William Ury

Good luck with your negotiations!