Do Divorce Attorneys Use Negotiating “Tricks”?

Do divorce attorneys use negotiating tricks?  Yes. Not all of them, but a lot of them. After all, they went to law school, they are attorneys, and they want to get the best deal for their client in any (legal) way they can.

Many attorneys who use “positional bargaining” tactics use various “tricks” to try to get their way. The problem is, if the other attorney has some negotiating skill and savvy, these tricks do not work very well.

For example, a well-known ploy is the “one more thing” trick. Imagine that you and your attorney have been in intense negotiations with your spouse and your spouse’s attorney for several hours. You’ve finally hammered out what appears to be a reasonable agreement. As you are just about ready to close the deal, your spouses attorney says “Oh, we want one more thing.”

That “one more thing” can be anything. It could be that your spouse wants “a little more” parenting time. It could be that he or she wants “a little more” money for alimony or child support. It could be that he or she wants the brand new 80 inch plasma TV that you just purchased with your bonus.

In extreme cases, I have seen attorneys and their clients renege on signing a Marital Termination Agreement after it has been fully written up, and even though it accurately reflects the terms of the agreement that the parties reached in mediation. The other side wants “one more thing.” This kind of comportment can be considered to be unethical, and it certainly shows bad faith, but that does not stop attorneys from engaging in it.

Your spouse’s attorney knows that you have just spent a lot of time and effort to get to an agreement. The attorney knows that you have a lot invested in the negotiating process. The attorney knows that you have an emotional interest in getting done with the divorce and avoiding trial. The attorney believes that, instead of looking at the total balance sheet with the “one more thing” added and realizing that it is now unfair, you will just say “okay, I give up–take one more thing.”

You do not have to say this. You can evaluate the “one more thing” and decide how important that issue is to you. Usually its important to you and your spouse knows this, which is why it was held up as “one more thing,” for him or her to grab at the end of the negotiations. If your attorney is experienced, he or she will have held something in reserve. Often, this is not so much the “one more thing” that you want as it is the possibility of proceeding with the process if negotiations fail. Or, your attorney will know how to say “No” in a way that communicates to your spouse that if he or she insists on getting “one more thing” it will end up costing her more than it is worth.

Daniel Fiskum is a Minnesota divorce attorney who has been practicing since 1992. He is a graduate of the University of Minnesota and has been named a "Super Lawyer" by the Minnesota Journal of Law and Politics. Mr. Fiskum is currently writing a book for attorneys and non-attorneys entitled "The Streetfighter's Guide to Divorce," which is scheduled for publication in May, 2010. Many of his blog entries will appear in the book. You may contact attorney Fiskum directly at (952) 270-7700. His office is located in the Carlson Towers in Minnetonka, Minnesota. The Fiskum Law website is found at www.fiskumlaw.com.

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