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Negotiating Your Divorce
How you negotiate your divorce matters.
Most divorces are negotiated and then put in the form of a separation agreement. The alternative is taking your case to court and having a Judge decide, which can be a long, drawn out and costly process. Beryl McNeill is a firm believer that the negotiation of a separation or divorce should be based on the following key principles:
1. What are the clients’ objectives? What are the clients’ hopes and concerns? What are the hopes and concerns for the children? What are the clients’ hopes and concerns for their spouse?
2. What legal information do the clients need to know given their objectives?
3. How can the client reach a negotiated agreement that is legal and enforceable in a timely cost-effective way which is tailored to meet their objectives?
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How does this negotiation style set Beryl McNeil apart from a traditionally trained divorce lawyer?
Traditional divorce lawyers are trained to negotiate your case with a primary focus on legal rights and entitlements, with adversarial rules of court which inform their negotiation. The adversarial negotiation is an attack-defend style of negotiation. Most people are familiar with this type of negotiation. Lawyer A will put together a proposal which is your best case scenario if all of your stars were aligned, knowing that they would never get their entire best case scenario if they went to court. Lawyer B responds in kind. The Lawyers go back and forth with letter writing, lengthy court disclosure, questioning and possibly court applications before they finally negotiate an agreement. This style of negotiation takes more time and money for spouses to reach a negotiated separation agreement. It also tends to create more animosity and conflict between the spouses; and this ongoing conflict can be damaging to their children. This style of negotiation is often called Positional Bargaining.
The preferred negotiation style that Beryl advocates is called “Principled Negotiation” or “Interest-Based Negotiation” and is a style of negotiation that was defined by the Harvard Negotiation Project, described in a book titled Getting to Yes, Negotiating Agreement Without Giving In (1981). With this style of negotiation, Beryl focuses on what clients have identified as most important.
Beryl often asks her clients:
I want you to imagine that it is a year from now and you and your spouse have negotiated an agreement, and you have done it well. What are the values that inform your agreement? What are the positive hopes and objectives that you achieved in your separation agreement? What are the concerns that you addressed in the agreement? I want you to imagine that we are on the road to resolution and your positive hopes and objectives can be met at the end of the road. My job is to help you focus on the positive road to resolution. However I also need to know your concerns and I want you imagine that the concerns are in the ditch. As we are driving down the road to positive resolution we need to be aware of the concerns in the ditch, however we don’t want that to be your primary focus.
Beryl functions as not only an advocate for her client, but also a problem solver. Yes you need to know what your legal rights and entitlements are; what your best case and worse case scenario would be if you took your case to court, but often this is not enough to help you get to a point where you can reach a negotiated agreement with your spouse. Beryl has extensive training and experience with assisting clients negotiate a separation agreement that addresses their specific hope and concerns; and solves the problem.
What If Your Spouse Hires a Traditional Lawyer who is a Hardball Litigator?
Beryl has extensive experience with negotiating with the proverbial “Hardball Litigator”. A Hardball Litigator is quite simply using a traditionally styled Positional Bargaining approach to the negotiation. Beryl advises when she first started practicing law, this style of negotiation was more prevalent, and Beryl has over 25 years of legal practice and training to know how to deal with the Hardball Litigator. If your spouse has retained a Hardball Litigator she advises that you and your spouse attend mediation with an experienced lawyer mediator who can guide the process. She also advocates that you read the book “Getting Past No – Negotiating Your Way from Confrontation to Cooperation” (1991).
The statistics indicate that over 90% of divorces are settled without going to trial. Most divorces are negotiated. The big question for you and your spouse is what sort of lawyer and what sort of process are you going to use to negotiate your agreement? Beryl has extensive experience with negotiating divorces. Every situation is unique and should be assessed. Contact our office now to book an appointment to speak with Beryl.
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