In a negotiated settlement, the husband and wife deal with each other face-to-face, and they make up their own way without a paid mediator or binding arbitrator. In a negotiated settlement, the spouses move at their own speed. Very often couples exchange proposals, and then, after reviewing them with the respective lawyers, make counterproposals, and the process repeats its until the two of them have a tentative agreement. This back and forth between spouses keeps the direct involvement of the respective lawyers at a minimum. In other words, couples who negotiate for themselves keep the lawyers on what one lawyer called "a tight leash." In some cases, the lawyers’ involvement is limited to filing paperwork, and if the couple decide to go pro se, not even that.

Couples who can come to agreement on their own are also much more likely to have a civil relationship after the divorce. This can make parenting much easier. This form of negotiation is much less expensive than either mediation or arbitration (and everything is less expensive than litigation).

Negotiation between spouses works when both act in good faith. An negotiated settlement dovetails easily in a simplified uncontested divorce. In negotiation with a spouse, couples may find it advantageous to meet in some neutral place that carries no emotional memory.

If after a good faith effort negotiation breaks down, the couple can turn to mediation.

Sometimes in divorce actions, spouses trade off interests that they might otherwise claim in the hope of an expeditiously negotiated settlement. For example, John may have an arguable claim to the appreciation of securities Ginny received as a gift from her grandmother, but waive that claim in exchange for Ginny agreeing not to assert her legitimate claim to a share of John’s company stock. John and Ginny agreed to this together, without lawyers and even a dollar-and-cents calculation of value. The agreement removed two items from discussion and moved them closer to an agreement they both can live with and one they negotiated together. By doing so, neither John nor Ginny held out for top dollar, but both made life easier for themselves.

In a negotiated settlement the role of the lawyer is that of counsel and advisor, not a hired gun. In a negotiated settlement, a lawyer keeps his or her client on track, moving toward a settlement that is fair and reasonable.

Your Suggestion

1. Making Divorce Lawyers Rich
   Some years ago, a couple negotiated -- or almost negotiated -- a settlement for a very large marital estate. They achieved agreement about everything -- except for one item, a rare Kansas City mint silver dollar they had acquired during happier times. Back and forth the two of them went, fighting over this coin that had become in the mind of each a symbol of the marriage. Each paid his or her lawyer far more than the value of this collectible coin in this ritualized battle for vindication. Finally, one of the lawyers realized that the coin had become a metaphor of righteousness in the mind of each. He bought the coin at numismatic value -- and took it off the table. The battling spouses spent a lot of money, and they could have very easily removed the coin from contention the same way at much less cost.
   Contributed on 7/11/2007 by: DivorceDex.com Staff

   Category: Agreements  (Applicable in All States)
2. Throw Back Items in Negotiation
   When in a 4 way or even a three way with a mediator, there is a tendency to let go of some items that you know the spouse will want that you do not. Keep this to yourself. You may end up with little to counter with if there are items that you specifically want but are held up because the spouse also "wants" that item. It is a difficult balance but keep in mind some things that you can "throw back" to help swing things your direction and arrive a more equitable balance.
   Contributed on 10/30/2007 by: BFSVacaville, CA[Total Submissions: 1]

   Category: Property Division  (Applicable in All States)

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