3 strategies for negotiating with divorcing couples

May 22, 2017

By Stephen W. Daulton, Esq.

Most lawyers will agree that lawyering in commercial negotiations, large business deals or plea bargains in the most serious of felonies or capital cases are less emotional and less difficult that most divorce cases. It is important that all concerned develop a deep understanding of themselves and their opponent.

Sun Tzu says, "If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle."[1]

Understanding of the psycho dynamics of the divorcing couples enables the family law lawyer to provide effective advice to his or her clients. Different personalities require different strategies. In fact, you should not negotiate at all with a high conflict personality. The different types of litigants and their strategies are categorized as follows:

1. The High Conflict Personality Litigant

Some high conflict personalities engage in outright deception. In most cases, you cannot and should not negotiate with an outright liar. Compromise based on untrue facts is worthless. Negotiation is a privilege. Liars should not be afforded any privileges.


Another type of high conflict personality is the most troublesome litigant, one that suffers with a mental illness. These problems can range from an acute inability to manage their emotions or these clients could be suffering from a profound diagnosis of a mental condition found in the American Psychiatric Association Diagnostic Manual V (DSM V). In these cases, the conflict is not driven by fact or law, but by the personality of a litigant. These cases do not settle through negotiation.


2. The Thoughtful Litigant

The least troublesome litigants are those clients and opponents that can successfully manage their emotions. Because most litigants are able to successfully remain thoughtful and to control their emotions, most cases can be negotiated to an amicable conclusion. It must be remembered that these thoughtful litigants really desire to settle their case. They see compromise as a strength, and not a sign of weakness. These clients see compromise as a necessary process to the greater good of an amicable settlement. In these cases, the law and facts, not emotions, drive the case.


3. The Litigant During the Adjustment Process

Lastly, most litigants find themselves in a period of emotional adjustment. The process of transition from happily married to being an adjusted person living single requires an adjustment period. Experts[2] have identified the stages of divorce as Denial, Anger, Bargaining, Depression and Acceptance. Sometimes litigants are often blindsided by a divorce that they did not see was coming. In some cases a party who is resolved to be divorced wants a divorce badly. These spouses often litigate with a spouse who is in denial that there should even be a divorce. This disparity in the emotional adjustment process requires very different litigation strategies.

[1]The Tao of Divorce: A Woman's Tactical Guide to Winning (based on Sun Tzu's The Art of War) ©1996-2003, Sun Yee.

[2]On Death and Dying, Elisabeth Kübler Ross, June 9, 1997, Scribner Press.​



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