Making a Deal When the Parties Want to Fight

Christopher C. Melcher

Walzer Melcher LLP

When a long-term personal or business relationship sours, exiting that relationship isn’t easy. Lasting agreements cannot be reached without trust, respect, and communication—all of which are missing in a broken relationship. How can parties come to financial terms when there is no trust, they hate each other, and aren’t speaking?

There are many ways things go wrong in a negotiation. A settlement requires reasonable parties and reasonable counsel. What are the chances? While we focus so much on how unreasonable parties can be, attorneys have the same capacity to make a dispute worse, than resolve it.

Some parties and attorneys have a need for conflict, which may come from a mental health or substantive abuse problem. They do not want to settle because it will end the conflict that feeds them, or take away their power to terrorize the other side.

Others may not be emotionally ready to address the problem, or have unrealistic expectations.

Most of these issues can be overcome, if something bad were to happen, and there is no agreement. Although settlement is a consensual process, there are consequences for not agreeing. For some, the failure to reach an agreement is enough of a cost to keep them negotiating. Others need a hearing or trial date facing them.

Experienced lawyers know what a case is worth, and want to tell our clients, or the other side, how it should turn out. But that may be rushing things. Before addressing the deal points, it is more effective to attack the problem at its source. If we restore some trust, respect, and communication, we will be on the road to agreement.

My negotiations involve spouses who are divorcing and need to divide property, set support, and make a coparenting plan. These parties typically do not trust or like each other, maybe because one cheated, or was abusive. Family law disputes are highly personal, reaching into every aspect of their lives. They cannot move forward until their issues are resolved by agreement, or by the court, which can take years.

Business disputes are less personal, but the stakes can be just as high. The tactics for overcoming resistance to settlement can apply to any conflict between parties who have a strong dislike for each other. It can also work whether the parties negotiate directly or through their advocates.

Trust may never be restored completely, but we can build enough of it to make a deal. In the divorce world, I use financial disclosures as the first step. The parties are required to make a financial disclosure, but many practitioners delay, or fail to take the process seriously. It is a missed opportunity to show the other side that, despite what happened before, there will be transparency on finances. Doing a great job with disclosures can reduce the temperature of the negotiations. Honesty is refreshing. Conversely, a poor disclosure will only reinforce negative views about our client.

Respect is developed by listening to the other side. We tend to talk more than listen. I try to do the reverse. Conflict cannot be resolved without understanding what the other side wants and why they want it. Allowing parties to express those thoughts makes them feel like they were heard and understood. They might be willing to hear our perspective after we have listened to theirs. Clients can get upset when their lawyer talks to the other side, thinking their lawyer is disloyal or weak, so it is essential to let the client know the plan.

Communications are easy to send, but usually the wrong messages are sent. We must choose our words carefully and pay attention to tone. It is hard to resist the urge to blast the other side by telling them all the things they have done wrong. I try to avoid that by asking the other side what information they need and what their timing is for making a deal. That keeps the conversation forward looking. I model that behavior for my clients, assisting them with messages to their spouses that avoid rehashing the conflict.

Following these steps will set the table for agreement. Along with laying this groundwork, I find it essential to use a mediator to keep everyone on track. This is most effective when the mediator is brought in early, to set a timetable for exchanging information, and reaching a deal. It is a lot of work, but it is the best way out of these disputes.

Addressing the roadblocks underlying the conflict is more effective than diving into deal terms. Listening to the other side, and treating them with respect, reduces the temperature of the dispute, and allows our client’s wishes to be heard.