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Negotiating the Difficult Channels of Family Law

Tonight's post about the Difficult Channels of Family Law was written by our Lawrenceville Divorce Attorney, Robert Bexley.

There are 1,001 guides on how to choose an attorney for any area of law. How to find the best family lawyer. How to find the best business law attorney. 10 tips to choosing the best bankruptcy lawyer.

This is not one of those lists.

Still, what this article has in common with those other "how to" guides is to provide you with information on judging a key attribute of any family law attorney: Negotiating.

The ability to negotiate is arguably one of the most underappreciated virtues for which an attorney can boast. Indeed, negotiating is a practiced skill, and it can be among the most important tools in an attorney's repertoire.

I chose the word "tool," carefully.  Not a weapon, not a trick. A tool. Tools are devices used to carry out a particular function. Thus, in family law, the ability to negotiate is an interpersonal device used to achieve a particular goal. Such goals can include reasonable and liberal visitation of your children, adequate child support, or the fair division of a retirement plan.

Before continuing any farther, let me tell you about my credentials. I was hired by the United States Department of Labor immediately out of law school. After passing the Bar, I was hired as an associate attorney to negotiate and settle hundreds of cases involving some of the largest energy producers in the world, including Chevron, Murray Energy, and Walters Energy. I settled thousands of citations for millions of dollars in regulatory violations.  

However, as a result of the implementation of the Federal Budget Sequester in January 2013, my team of expert negotiators and closers found ourselves looking for work. I first plied my skills with my own law firm practicing business law and now I have found my home and my calling in family law.

But my story does not begin with my job at the U.S. Department of Labor. In fact, it began much earlier in law school with a course called "Alternative Dispute Resolution." In ADR, we read a relatively small book (at least by law school standards) called "Getting to Yes: Negotiating Agreement Without Giving In." Originally published in 1981, this book is as groundbreaking today as when it was first published. The authors' approach to negotiating is actually subversive in its defiance of the conventional wisdom of negotiating from a position of strength and beating your adversary at any cost.

In "Getting to Yes," the authors argue that negotiating an agreement means convincing the other party that a mutually beneficial resolution is almost always in the best interest of the parties. The theory is centered on the "Win-Win," which is to say that both parties will achieve more overall if they both walk away believing - nay, knowing - knowing they won.

Many will scoff at this notion because they have been brought up in environments that promote the "Win-Lose" result of a negotiated settlement. In game theory this is known as "Zero Sum," which means that if you are to "win" x dollars, your opponent must "lose" x dollars. But that is simply not true. What if you can gain 10 dollars but your opponent can also gain 5 dollars? Would that not be a better overall result?

"Getting to Yes" hinges its successful theory on the concept of "collaboration" over "competition." Competition forces opponents to fight over what is believed to be scarce resources or limited options. Collaboration, on the other hand, creates new resources and explores new options.

But what does this have to do with family law? Family law is frequently about the "horse trade," or the way in which I will give you something that I do not care about if you give me something that I want, and vice versa. Instead, with the "Getting to Yes" method, we now ask the divorcing spouse, "What do you want?" and "What do you need in order to give me what I want?" While this may seem like negotiating from a point of weakness, in fact you already can presume what the other side wants and you know what your walking away point is.

It is this skill, the ability for your attorney to reach across the aisle with an olive branch and a handshake - not with a spear and a fist - that will most often ensure your success. Always remember that being argumentative and aggressive are habits developed as a defense mechanism to replace the temperance necessary to negotiate.

Do you know what kind of negotiator you are getting when you hire an attorney? Does your attorney want to simply fight and argue with opposing counsel? Or does your lawyer possess the skill required to understand and achieve your goals and objectives? At The Manely Firm, we specialize in achieving your goals through strength of skill, articulate persuasion, and by a sophisticated approach to negotiating.

Robert S. Bexley

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