How does negotiation in collaborative divorce differ in Illinois from traditional divorce negotiation.
First, see the Q&A regarding Illinois collaborative divorce. In collaborative divorce there may be an initial divorce filing due to the time lines established due to the so called maintenance guidelines. But thereafter there are no contested matters that occur in court and all matters must be worked out by way of settlement. If the case cannot be settled, both law firms withdraw from the representation and new representation is taken over by counsel of their choice.
How does negotiation work in collaborative cases?
In collaborative cases, negotiation occurs after there is fair disclosure of the financial information. Then the lawyers sit with their clients typically in a conference room with a round table and work out the mutually agreed terms of settlement. Post-Covid, four-way conferences are often a combination of Zoom and office conferences. The requirement for the lawyers to withdraw if there must are to be contested proceedings provides an incentive to focus on settlement.
How to negotiations work in traditional cases?
Ninety-five percent of all court cases are settled before trial. Negotiations in standard divorce litigation are part of settling a case before trial. Negotiations usually occur between divorce lawyers either during conferences or in written Emails and letters. Effective negotiation requires a firm understanding of the facts and circumstances underlying each spouse’s claims.
In traditional cases, is it the lawyers who drive the negotiations?
In a sense, yes. A lawyer must share all settlement offers and the client is in charge of making any settlement offer. The lawyer advises the client on the means to try to achieve the client’s goals.
In “traditional” negotiations, it is the lawyers who, in a sense, do most of the negotiations. This takes place traditionally through settlement letters, pretrial conferences or draft settlement agreements. In some cases the the parties, directly, will negotiate a settlement or aspects of the settlement. What is left for the lawyers is to advise regarding the fairness of the proposal, draft the settlement agreement and finalize the divorce.
Should I choose a lawyer who is known for his trial abilities if I want to negotiate a settlement?
Many cases in what is called the “traditional adversarial” arena are settled because of the concern that a trial will bring about a worse result (for the opposing party) than a negotiated settlement. A lawyer who is known as a capable trial lawyer should have leverage to bring about a fair settlement.
In a settlement, I want the maximum amount that can be realized. If I hire the best lawyer possible, will I achieve this result?
Probably not. From my experience, I place settlements in three categories: fair-fair, high-fair, and low-fair.
Traditional in-the-trenches lawyers engage in a competing predictions of what is reasonably likely to occur if the case were contested. To the degree of a lawyer’s experience and knowledge, he or she may be able to make more reasonable estate. This is where the adage comes in that, “A good lawyer knows the law. A great lawyer knows the judge.” With some matters, there is some degree of certainty. This includes determining the amount of child support once overnight parenting time has been determined for a salaried employee. At the other end of the spectrum, some issues involve a much greater degree of variability such as determining the net income of a sole proprietor who runs his own business.
Is negotiating a divorce settlement unique from other types of negotiations?
Yes. The issues in negotiating a commercial deal are usually clear-cut and tangible. In a divorce, the parties bring to the negotiating table the resentments and potentially their own emotional baggage. Some spouses bring hurt feelings to the bargaining table believing the other party is at fault in bringing about the divorce. For example, it’s difficult to negotiate with a person who believes that her spouse ruined her life, for example, if the husband had committed adultery. This might remain a factor at play even though adultery cannot be legally considered in any aspect of divorce litigation. See our Q&A regarding “Adultery in Illinois Divorce Cases.”
Will the fact that I am “dating” or “cohabiting” affect the settlement negotiations?
Definitely. Usually the other spouse will want a “pound of flesh” in retribution. These cases are very difficult to settle. The party who is “dating” will pay a significant price for it in the negotiations.
What is the basis on which a divorce settlement should be negotiated by lawyers?
Your lawyer’s knowledge of the facts, knowledge of the law, and knowledge of the judge who has the case. Our firm’s book: Gitlin on Divorce: A Guide to Illinois Matrimonial Law is the leading book on Illinois divorce law. It’s been cited in virtually countless appellate decisions. The book and the Gitlin Law Firm’s writings and lecturing reflect our knowledge of the law. Judges in divorce cases are given broad discretionary powers in all areas other than child support and maintenance. But a comprehensive knowledge of Illinois divorce law is necessary in all but the simplest of divorces.
What sort of settlement should a lawyer seek for the client?
The Gitlin Law Firm seeks cases that would always be in a fair range. Divorce agreements, unless it is a short-term marriage with no children, usually have a continuing relationship between the parties. So, it does not make sense to have an agreement that is outside of fair bounds for one of the parties.
Are “tough” negotiators the most successful?
No, not if by tough you mean a lawyer who takes an arbitrary position. There are two types of negotiators, “positional” and “principled.”
A positional negotiator will take an arbitrary position and not back it up with reason. A principled negotiator will back his or her positions up with good reasons—both with facts and the law. Studies have shown that principled negotiators achieve better results than positional negotiators.
I want out of the marriage and I am willing to accept unfair terms. Will my lawyer let this happen?
Maybe. People have various reasons for wanting out of a bad relationship and the lawyer should honor this. But lawyers should not allow the client to be enter into an agreement that is far outside of a fair range. Once the potential settlement involves terms that may be unconscionable, the better lawyer will request to withdraw. Sometimes the client will still agree upon a a quite unfair agreement. But through the lawyer’s withdrawal, the client is granted time to think through the consequences of a potential decision.
Can’t we start negotiating immediately re financial issues?
Not usually. The only time negotiations can start virtually immediately is if both sides know all the facts. This includes the values of all assets and both parties incomes. Usually, it will take several months to engage in “discovery” (usually interrogatories and a request to produce documents) to learn the facts. See the Gitlin Law Firm’s Q&A regarding discovery.
The facts that need to be known vary depending on the issues. For example, if one of the parties claims that a certain asset is a non-marital asset (not to be divided in the divorce), the facts regarding how that asset was acquired are pertinent. Engaging in negotiations prematurely is a mistake frequently made.
Are there psychological factors that should be considered in negotiating?
Certainly. Is the other side anxious to obtain a divorce quickly so, for example, he/she can remarry? Does he or she “have to have” a certain asset for either practical or sentimental reasons? Is one of the parties afraid to go to trial?
Does one party’s plan to remarry shortly after the divorce have a significant impact on the divorce negotiations?
Yes. If the party intending to remarry qualifies for maintenance. Maintenance, as a matter of law, terminates upon the recipient’s remarriage. If the wife intends to remarry, but the husband does not know of her plans, she may attempt to negotiate for a lump-sum payment instead of maintenance since she does not have to give back the lump sum if she marries.
Will a premarital (prenuptial) agreement control the terms of the settlement?
Probably. Premarital agreements often address the disposition of property in divorce proceedings. The premarital agreement may also address maintenance. For example, the premarital agreement may provide for a maintenance or a maintenance cap. The function of a premarital agreement is for the financially advantaged party to take advantage of the less monied party. Thus, it premarital agreement serves to give the the disadvantaged party less than what the the law would allow.
It is difficult to successfully attack a premarital agreement if 1) each party had a lawyer; 2) there is fair financial disclosure within the agreement; 3) the terms of the agreement are clear. See Q&A regarding Premarital Agreements.
When do opportunities for settlement arise?
Your lawyer should try to settle the case after she or he knows what you want and you and your lawyer know the facts. This is when the time is ripe for settlement discussions. If initial settlement negotiations are at an impasse, this is when one of the parties usually requests a pretrial conference.
At the pretrial conference the lawyers will tell the judge their settlement positions and the judge will make settlement recommendations. This is a good opportunity to settle the case. But keep in mind that if there has not otherwise been a substantial ruling, one of the parties might still request a change of judge based on a 2021 Illinois Supreme Court decision.
Do you encourage four-way conferences between lawyers and clients?
Here is the answer from H. Joseph Gitlin:
No. Most lawyers and divorcing people believe that if you get the lawyers and the husband and wife sitting around a table they can hammer out a settlement. This usually does not happen because:
- It takes good communications to settle a divorce. If the husband and wife had good communication skills, they probably would not be divorcing.
- Lawyers sometimes show off and posture during four-way conferences.
Are there circumstances under which you approve of a four-way conference?
Yes, consider a four way conference when:
- The general principles of settlement have been agreed upon.
- There is a written agenda or at least a common understanding of what will be discussed.
- There is an agreed upon time limit for the conference.
What do you believe is the key to successful negotiations?
I would suggest three rules of negotiations.
- Sun Tzu suggests, “knowledge of self and knowledge of the other, in every encounter a victor.” We know what we want. But we often don’t put ourselves in the shoes of the other to try to understand their likely bottomlines.
- Don’t negotiate against yourself. What this means is that if makes a settlement proposal too far outside of the mainstream, it is not necessary to respond.
- If you have made a proposal wait. Ask the other side what their proposal is.
- Be willing to consider any reasonable settlement proposal while trying to avoid arbitrary bottomline positions.
- Try to maximize leverage where possible. This can sometimes be done by seeking to obtain a favorable guardian ad litem recommendation and the like. Ironically one tends to do well with a guardian ad litem recommendation by taking reasonable positions and working with your client to try to avoid undue conflict.
My father had put it this way.
I would much rather settle a divorce case by holding out my hand in peace and have the settlement based on warm feelings, but on the other hand I know that sometimes I will need (figuratively) a 2×4 in my hands as a persuader. This is leverage.
What is the best leverage to have in settlement negotiations?
The ability to prepare the case for trial to the extent that this is necessary.
Assuming the case is going to be tried, how can my lawyer gain leverage for the sake of the trial, that is, to attempt to assure that the judge will be favorable to me?
By painting on the canvas. In contested divorce proceedings (including parental allocation), the lawyers (and sometimes the parties) are frequently before the judge. I think of the courtroom as a canvas. Each time I am in court I want to paint on the canvas so the judge gradually gets the picture.
What is the usual leverage in divorce cases?
Facts. In litigation knowledge (of the facts) is strength. More often than not the facts (especially financial facts) are under the control of one of the parties and that party will attempt to gain leverage by withholding (stonewalling) the facts. Yet there are a variety of ways of dealing with these stonewalling tactics in discvoery.
My spouse and I can no longer agree on the time of day. Can’t we just leave the settlement up to the judge?
No. Divorce cases are not usually decided by the judge. About 95 percent of all cases are settled and do not go to trial. In such cases, the judge merely signs the final judgment of divorce. The judgment incorporates the marital settlement agreement. A judge is not even required to pass on the fairness of the agreement. The judge will disapprove an agreement only if the judge finds it to be “unconscionable.” This means that no reasonable person would enter into such an agreement.
So that I understand the art of negotiations, what books do you recommend?
Yes. The gold standard for the science of negotiations is written by two Harvard professors, William T. Fisher and Melvin C. Ury: Getting to Yes and Getting Past No.
I also recommend:
- So What’s Your Proposal, by Bill Eddy.
- Difficult Conversations: How to Discuss What Matters Most, by Douglas Stone
- Crucial Conversations, 3rd Ed. (2021).
- Mediating High-Conflict Disputes (Bill Eddy 2021).