Negotiating Strategies and Challenges in the Divorce Process

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Copyright © 2023 by Lawrence D. Gaughan

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Preface

This book is about a busy intersection. One street sign says "Negotiation and the other identifies a boulevard called Divorce Process. The traffic is much noisier a few blocks farther on where Litigation" avenue intersects. There’s lots of honking. However, over nine times as much traffic goes across at the earlier intersection.¹

Since over ninety percent of all family law cases are resolved by negotiated agreements, why don’t we spend much more of our time studying the art of negotiating? Perhaps a major reason is that divorce is a process and not very much of our legal education is focused on process. Note that negotiation is also a process.

Process is the study of relationships in a given system and especially about how decisions are made in that system. It also involves timelines and it therefore takes account of transitions. That’s a very different exercise from the study of appellate cases, which is still the main form of legal education. We have learned much about how courts make decisions, but perhaps not nearly enough about how all other legal decisions get made. This observation applies to continuing legal education seminars as well as to law schools.

The case system teaches future family lawyers how to analyze inductively from the facts of important cases. It teaches us far less about reasoning deductively from the lists of criteria we often find in family law statutes.² We thus may overlook the reality that family law codes often encourage judges to focus on lists of criteria (guidelines in rather general terms) that are deliberately framed to enable their discretion.

The intersection of the divorce process and negotiating has many facets. These often involve far more than just guessing how a court might decide a given case and then making that the basis for any agreement. If predicting the court outcome is the sole basis for a negotiated settlement, that may be somewhat like going to the circus just to see the famous pony that does only one trick.

To be sure, there are still quite a few occasions where such one-trick negotiating may be sufficient. However, the divorce process is a big tent with the potential for lots of different acts. As divorce professionals we need to be aware of the full range of possibilities before we decide that for this trip it will be enough just to watch just the pony go through its familiar act. It’s now been forty years since a new kind of circus called ADR (alternative dispute resolution) first rolled into town.

This is certainly not to say that it’s improper in the course of divorce negotiations to consider possible judicial outcomes. On the contrary, it is probably appropriate in virtually every case to check what we can surmise about the potential results if our case were to be decided by a court. When we do so though, we always need to be certain that we don’t overlook any other worthwhile acts under the big tent of the divorce process.

It’s important to remember that there are many limitations in trying to guess what a judge may do in any specific case. Facts can be determined and interpreted in different ways. There may be ambiguities in the statutes or case law. Expert evidence may be required. Some evidence may be missing or turn out to be not as conclusive as it initially seemed. There is often room for judicial discretion. From time to time the court may determine that it lacks the jurisdiction to decide an important issue. Every family law attorney remembers some painful cases where the results in court didn’t turn out as anticipated.

In my family law practice in Northern Virginia since 1980, I have seen too many cases in which the adversarial system of divorce did not fully serve the legitimate interests of the parties. Too many litigated cases wind up being excessively expensive, time-consuming and emotionally draining, but without necessarily producing a fair and workable outcome.

That being said, I have also seen lots of cases, and especially some very difficult cases, where the adversarial system was absolutely necessary to get the case resolved. The present legal system of divorce depends on the ability of family lawyers, including some of the most skilled litigators, to settle cases without litigation. I have urged the acceptance of two related points about attorney negotiated cases: (1) they should be categorized as a form of ADR since they are alternatives to litigation and (2) the negotiating lawyers should thus be as familiar with ADR skills as they are with more traditional methods for the negotiation of divorce agreements.

Virtually all divorce professionals vocalize concerns about the excesses of divorce litigation, while recognizing its necessity in some cases and supporting the utility of settling cases by agreement whenever possible. The business of settling divorce cases by agreement has become very competitive. The competition has not only been among lawyers using different settlement models, but also on occasion has attorneys competing with financial or mental health professionals.

Divorce mediation started as a national movement around 1980.³ Collaborative practice as a formal alternative process model commenced in 1990. Many successful divorce mediators come from professions other than law and mental health and financial professionals may be members of a collaborative practice team. Negotiating lawyers are increasingly involving other professionals in more conventional negotiation settings. Attorneys may negotiate either by conventional means or may add ADR skills to their practices. Lawyers may serve as mediators or collaborative attorneys. Family lawyers may unbundle their retainer agreements to provide only certain limited legal services to those divorcing spouses who negotiate their own agreements. There are divorce attorneys (including myself) who have routinely done all of the above.

The goal of this book is to explore in detail the scope of knowledge and skills that are appropriate for professionals who are involved in any of these ways in the negotiation of divorce agreements. One of the most basic of these professional attributes is an ability to also analyze divorce negotiating from the standpoint of the disputing parties. In other words, we need to be aware of how we negotiate, how the professionals we encounter negotiate, and how our clients negotiate. This is a book about negotiating! Since all of this negotiating takes place in the context of the divorce process, this is also a book about the divorce process! Instead of Hollywood and Vine, we are at the intersection of Negotiation and Divorce Process.

This is not a book designed to advocate the intrinsic superiority of divorce mediation, collaborative practice, or even ADR. It all depends on what works best in a given case. There are clearly many cases where traditional attorney negotiation skills are still absolutely necessary.

This book is not intended to replicate any of the many continuing legal education courses on adversarial negotiating tactics. Our focus is on how to settle cases rather than how to gain advantages for clients. Stated differently, this is a systemic book about the structures, strategies, and skills of resolving cases out of court. It’s not a book of adversarial tactics designed to influence the terms of those settlements for the benefit of our clients. Those books and CLE courses are readily available.

I am writing this book after having gone through decades of divorce practice without knowing how much I didn’t know about the divorce process. By the end of the first decade of the twenty-first century I had come to the end of my initial thirty years of experience as a divorce litigator and a family mediator. Back then I thought I knew about everything there was to know about negotiating in the divorce process. That’s when I came upon the wonderful quote from the legendary basketball player and coach, John Wooden (1910-2010): It’s what you learn after you know it all that counts!⁴

This quote freed me to appreciate more fully the advantages of learning from other divorce professionals. I became certified for collaborative practice through the International Academy of Collaborative Professionals in 2009. In 2012 I became a founding member of the new Academy of Professional Family Mediators.⁵ Around the same time, I allowed myself to appreciate once again the special excellence that some of the best family lawyers bring to negotiating divorce agreements.

When I was in law school in the mid-1950s, American state laws on divorce were mainly designed to discourage divorce and the divorce rate was much lower than it is now. This was probably not due to a greater number of happy marriages, but rather to the social norms and views of divorce back then. The only divorce lawyers we heard much about were the ones who represented celebrities and millionaires. Individuals who wanted a quick and easy divorce often had to move temporarily to places such as Reno, Nevada, or the Mexican state of Chihuahua.

I have a picture in my office from those days. It’s a still from an old movie with Frank Sinatra, Dean Martin, and Deborah Kerr, Marriage on the Rocks. The black and white photo shows Frank leaning against the doorway of a Mexican lawyer’s office. Over the curved stucco doorway is the inscription, Divorce Your Loved One with Dignity.⁶

By the late 1960s, American divorce law was belatedly being brought into the twentieth century. In 1970 I was offered a tenured professorship at Washington and Law School and given an opportunity to teach family law courses and seminars, which I did for a decade. I realize even more fully now than I did then that academic family law is a very different exercise from its actual practice. Still, it does have some useful perspectives for the practitioners.

Writing this book has enabled me to organize a wide range of ideas about the divorce process into a coherent narrative. As I filled in the gaps and continued to find new ways to connect various details, I realized that expanding what I know about the divorce process crosses professional lines that until recently appeared to be walled off from each other. Professional strategies were considered to belong to the domain of each of the separate divorce professions and working skills were even more proprietary.

I consider myself to be a structuralist in the sense that I emphasize the basic concepts that outline both the divorce process and our professional roles as we negotiate in that system. One of my esteemed mentors was Murray Bowen, M.D. (1913-1990), who was among the main founders of family systems psychiatry.⁷ While on sabbatical during the academic year 1979-80, I was privileged to study with Dr. Bowen and his staff at the Georgetown University Family Center. Dr. Bowen firmly believed that when a professional’s practice is based upon sound constructs, he or she will then be better able to figure out the most appropriate techniques to use with clients.

Although I learned much about structural analysis during my year at the Family Center, I also had an opportunity to observe videotapes with many examples of the skills and strategies of Bowen theory. When structuralism is implemented by concrete examples of how the ideas work out in practice, the result may be termed an illustrative approach. This book contains a number of examples and problem cases for discussion.

Most of my professors in law school had little interest in how legal decisions were actually made except for their analysis of appellate court cases. Fortunately, I was able to take a few graduate courses in political science while I was in law school. I especially remember a course in public administration that used case studies in a much different way from those in law school. A typical case study was one about the experiences of the Army Corps of Engineers in dealing with the problems of bureaucracy and competing interests in flood control projects in New Orleans. These cases were my introduction to the study of process.

When I became a faculty member of the University of Virginia Law School in 1964, one of my colleagues was using the Hart and Sacks materials on legal process that had been developed at Harvard Law School.⁸ These innovative process materials were somewhat similar to the cases used in graduate business schools and of course to those used in my class in public administration.

During the year I spent at the Georgetown Family Center in 1979-80, I also worked as counsel to the Arlington, Virginia law firm of the legendary divorce lawyer Betty A. Thompson (1924-2012).⁹ Betty introduced me to the realities of the adversarial divorce process. In that same year, I became a close friend of O.J. Jim Coogler (1921-1982), a former state senator from Georgia who was the founder of the national movement for divorce mediation.¹⁰ Thus my introduction to ADR. Having Murray Bowen, Jim Coogler, and Betty Thompson as mentors during the same year was a priceless experience. In 1980, I opened my own practice of family law and divorce mediation. Although I am no longer accepting cases that possibly may involve representation in court, I am still doing divorce mediation and family law collaborative practice.

After I came across that classic quote by John Wooden I discovered how much any divorce-related profession is a lifelong journey in expanding the peripheries of one’s professional skills and knowledge. I can now take solace in the fact that I will never come close to knowing it all. I have become acquainted with the variety and scope of the experience of divorce professionals other than attorneys, and I have also continued to reflect on what I have learned from some top-rated divorce lawyers. My experience has also caused me to deepen the concerns I have always had about the adversarial system. Finally, I continue to learn from my clients and to respect their perceptions.

We divorce professionals have a unique opportunity to work in fields that take us through a wide swath of human experiences as to some of the most important aspects of human life. To fully understand divorce, we also need to have a better understanding of marriage. To appreciate the financial aspects of marriage, we need some background in money management and planning and an ability to create and read spreadsheets. There are often business-related matters. Dealing with parenting issues requires knowledge of both the stages of childhood development and the recent studies of children of divorce. There are relationship issues of many different kinds. Family systems theory can be useful. Ours are constantly changing multi-dimensional disciplines. Since our professional fields never stand still, as professionals we must be aware of all the various ways in which the ground keeps shifting. Above all, we need to appreciate the limits on our own knowledge and skills so as better to know when and how to relate to other divorce professionals.

Our present divorce process would certainly be quite different if it had been created only after we discovered many of the things that we have now learned about divorce. For this reason, at times our structural model of the divorce process may need to commence with some deconstruction. We must first decide whether our task is to renovate or to update a given part of the present divorce system or instead to treat it like tearing down a damaged house and building a sound contemporary structure on the same lot. This book does some of both. Still, I focus far less on changes to the existing legal system and much more on sharing ideas as to how we as divorce professionals can effectively improve our own participation in that system.

In the process of writing this book, I have had excellent editors. These include the insights of Bill Eddy and Forrest Woody Mosten, two of the most recognized leaders of the alternative dispute resolution (ADR) movement. I also value the editing and comments of ADR attorneys Charles Rowan and Ellice Halpern. Paul Smollar and Jim Korman, both divorce lawyers with extensive litigation and ADR experience, provided helpful reviews of the sections on attorney negotiating. The editing suggestions of Sarah Craig, the Executive Editor of ABA Publications, were invaluable in helping me find the real focus of this book, removing some extraneous and distracting elements, and finding further concepts and examples to implement the central themes.

My wife Joyce Holly, who is a retired therapist and mental health administrator, has been an ideal editor for clarity, proper usage, consistency, avoiding the extraneous, and making certain that ideas flowed freely. Above all, Joyce always made certain that everything was in harmony with sound mental health practices and common sense.

I could not have written this book without the interactions I have had over nearly four decades with the clients I have represented in their divorces and with the divorcing couples I have met in the quite different role of an impartial family mediator. I also wish to thank my former students in the family law school classes I taught at during the 1970s and 1980s at Washington & Lee and George Mason law schools.

Potomac Falls, Virginia, November, 2018

¹ There are no exact figures to support this percentage. It is based upon over thirty-five years of observations as an attorney in the adversarial system and on many conversations on this subject with other attorneys.

² These observations are based upon twenty years of experience as a full-time professor at the law schools of the University of Virginia,