What Do You Mean When You Say Negotiation?

Most people are familiar with the word negotiation, but not necessarily familiar with what it looks like on a day-to-day basis when a client is facing a family law case. At its broadest, there are two overall ways to address a family law case, voluntarily or involuntarily.

Those who reach an agreement between them about what they will do, such as their child’s visitation and custody schedule, establish their outcome voluntarily. They can take certain options “off the table” and decide what is more valuable or less valuable to them. The second approach to a case is involuntarily, having a judge make the decision for you. Sure, every case is different. But your particular judge always requires parents to be married before someone in a romantic relationship can stay at your home past 9:00 p.m.  And, by the way, I’ve seen this judge force a parent who lives with the boyfriend or girlfriend move out of the home they own together because they are not married. He or she doesn’t care that your son is a teen-ager.

Negotiation as used here is bargaining to reach an agreement, which is a voluntary outcome. In the law, there is a reference to “bargaining in the shadow of the law.” It means that you expect certain things if you go to court, so you don’t go to court. You face the threat of an involuntary outcome so you agree to something else instead. In our example, the bargaining might mean that it is really important that you remain in the home that you own with your (unmarried) romantic partner. If you want to stay in the home, you’ll consider giving up Spring Break.

On the day-to-day level, this means your attorney might receive a settlement offer, such as a separation agreement, from the other attorney. Or, your attorney might be the one to send an offer to the other side after reviewing all of the financial documents or other information requested from you. Clients are often disappointed to learn that attorneys have no way to force the other side to respond to the offer. Yep, the other attorney can absolutely toss it into the trash without so much as an e-mail saying the offer is rejected.

More often, when an offer is presented, the attorney may schedule a meeting or call to talk about it. Once the attorney and client decide what to do with the offer, they call or write to the other attorney who then contacts their client. If the attorneys feel that the parties are close enough to reaching an agreement to warrant it, they will respond by making minor changes (or sometimes major cases) to the offer.  The custody case example above might end up with emails between attorneys bargaining in the shadow of the law.  They both know that if they go to court, you might have to move out of your home and the other parent would likely get Spring Break only every other year.

Negotiation can happen any time, on any matter, whether or not someone has filed a lawsuit like a child custody case. Ultimately, clients have the right to make their own decisions about whether to go to court or settle out-of-court, by signing a separation agreement for example. It is your  attorney’s job to advise you about your rights and obligations. However, only the client decides his or her bottom line and how to get there.