See note 36
Less than 4 percent of divorces involve a trial of contested issues in open court. People normally settle their differences by negotiation. If each spouse is represented by an independent lawyer, the husband instructs his lawyer, the wife instructs her lawyer, and the lawyers engage in negotiation on behalf of their respective clients. Although information may become distorted in its transmission through the lawyers, the emotional divorce usually presents obstacles to divorcing spouses negotiating directly with each other without the benefit of legal representation. Couples caught up in the emotional dynamics of marriage breakdown often have great difficulty in communicating with each other because their emotions cloud their judgment. Fair and reasonable settlements in the emotionally charged atmosphere of marriage breakdown or divorce may, therefore, necessitate the intervention of lawyers or other third parties, such as mediators, who can bring objectivity to the bargaining table.
Negotiation is the most effective way of resolving disputes. It leaves the decision-making authority with the disputants and is cost-efficient and timesaving when compared to other means of dispute resolution. Some people have the erroneous impression that lawyers spend most of their time in court. In reality, most lawyers spend the bulk of their time consulting with their clients and engaging in negotiations that will lead to settlements. Good negotiation skills are a prerequisite to the constructive resolution of family disputes.
There are three basic approaches to negotiation:
1) hard bargaining;
2) soft bargaining; and
3) principled negotiation.
These approaches are reviewed in detail by Roger Fisher and William Ury in their bestselling book, Getting to Yes.37At the risk of oversimplification, the following summary may shed some light on their differences.
Hard bargaining reflects a competitive or adversarial approach to negotiation. The hard bargainer takes a position and is difficult to shift from that position. He or she makes concessions reluctantly but demands liberal concessions from the other side. Hard bargaining does not necessarily involve unethical or improper conduct but does imply that the dispute involves a contest of wills that the hard bargainer is seeking to win.
Soft bargaining implies an excessive degree of co-operation and the avoidance of confrontation. Soft bargainers are inclined to make too many concessions without demanding a fair return. Soft bargainers are particularly vulnerable when negotiating with hard bargainers, although soft bargainers may reach a point when they say "enough is...