I wanted to speak briefly to what happens when you are in a mediation process or a negotiation process outside of court and your spouse hires an attorney whose negotiating style is particularly aggressive.
I think, in some ways, that particular style is what people expect of attorneys, but for many clients who are in a mediation process or a collaborative law process, their hope and their goal for their divorce process is that it would be not acrimonious and not aggressive, that it would be civil, respectful, and by virtue of that, less expensive and less painful. And so the presence or the reality that your spouse has hired an attorney whose style is not those things, is more aggressive and more sort of traditional aggressive attorney stereotype, it can be really disappointing and frustrating.
I just wanted to give a couple of tips for dealing with that situation because it comes up not infrequently, and there are ways that you can deal with it effectively and there are ways that you can deal with it less effectively.
First of all, I think there’s a real tendency, and it’s understandable, to focus a lot of energy on the attorney and on taking issue with the attorney and their style and what they said and how wrong they are and how much they are ineffective at their job and whatever. All those things may be true, but the reality is that if your spouse has hired an aggressive attorney, that attorney didn’t force your spouse to hire him or her. That’s a decision that your spouse made. And if it was a decision that your spouse made unknowingly, and they didn’t understand the attorney’s style, they can fire the attorney if they don’t want the attorney. So you want to be careful to not direct too much not animosity, but just too much energy toward blaming your spouse’s attorney for the challenges in your divorce process.
And I don’t know if it’s better to necessarily blame your spouse, but you just want to sort of appropriately acknowledge to yourself that this aggressive attorney represents some component of your spouse’s wish or their sense of their needs for their divorce process. That usually means that they are coming from some kind of place of fear and insecurity, with the sense that if they don’t have a very loud, aggressive advocate, that they will not be okay in the process, that you will or someone will take advantage of them. It can also be punitive. They can also be angry at you.
Many different reasons for hiring, for being in a mediation process or another alternative settlement process and still choosing to hire a very aggressive attorney to represent yourself. Many reasons why that happens, but the first thing you want to acknowledge is just that it’s not something that happened to your spouse like a natural disaster that they didn’t have a say in. This is something that they have chosen, and you want to accept that. That is part of your process.
It’s not a part of the process that you wanted. You had hoped that it would be different, but this is what you have and it’s not likely to change. Your spouse chose it and there’s a reason or there are reasons for it. And so it is a component of your process that is likely to endure throughout the process. So how can you deal with it effectively?
The first thing to recognize is just that an aggressive negotiation style is a particular approach to negotiation. There are many different approaches to negotiation. Aggressive bargaining styles, statistically, they’re not particularly effective, but they are popular among certain people. And just recognize it for what it is.
It’s a particular style of negotiation and it’s not one that’s necessarily fun to work with, unless you yourself really love engaging in aggressive style negotiation, in which case maybe you will delight in the fact that your spouse hired an aggressive attorney to represent him or her. But it’s just a style of negotiation, not one to be particularly feared or to particularly despair around.
It is more likely than other negotiation styles to make your process feel a bit more unpleasant, a bit more stressful, and to take a bit longer than it otherwise might, but it doesn’t necessarily mean that you will end up ultimately in a worse place. It’s just maybe a little bit more work on your end to get through the process in a way that is effective for you.
And so how do you do that?
The first thing is to not take the bait and try to match fire with fire in an aggressive negotiating style. Again, if that is your particular style and you feel well-suited to negotiating that way, have at it. But don’t feel that if your own negotiating style or your attorney’s style is not aggressive that you need to match aggression with aggression. That usually ends up really prolonging the process and increasing the costs of the process and generally ending up in an overall worse settlement for everybody. But you don’t have to match fire with fire.
What you want to do is try to, as best as possible, not personalize the attorney’s style as having any bearing on the legitimacy of claims that you’re making in the divorce of where you’re coming from because from a more aggressive style of negotiator, you will not get any acknowledgment that where you’re coming from or what you’re asking for is valid in any way. Their style will be more in an animated way to point out the weaknesses in everything that you’re saying and point out why you’re not entitled to what you’re asking for, why it doesn’t make sense, which, as you will have firsthand experience with, is not a particularly effective way to negotiate.
But don’t let it get to you. What your spouse’s attorney says at the end of the day, if you’re negotiating outside of court, what your spouse’s attorney says really has no bearing on what you end up settling for. They can say whatever they want to say and you can still stick to your position on a particular topic and you can ultimately end up there in settlement. You just have to get through the initial, it can feel like an initial, onslaught of rejection of your position, criticism of you, of your position. And try not to personalize it and try not to take the bait.
And by that, I mean try not to respond in kind. It’s not helpful. And let me qualify that. You don’t want to simply say, “Oh, wow. You’re right. Good point. I really hear you that my position has absolutely no merit to it.” No. But more effective with someone who is particularly aggressive and attacking of your position is just to say, “Listen. We see this really differently. You think blah blah blah,” and reiterate that to them. It will calm them down slightly. “I think blah blah blah. We don’t see eye to eye, so what do we do now? How are we going to address that? Because I think we would both like to settle this out of court. So what are we going to do?”
Now it’s just don’t fight them. Acknowledge that they think one thing. Acknowledge equally firmly that you think another. And then ask them to engage with you in how to resolve that. So that’s one. Just don’t take the bait. Take what they say. Reflect it to them, but express with equal conviction what you think. And then see if they can engage with you in figuring out how to resolve your differences.
The other thing to keep in mind is that in a more aggressive negotiating style, at least initially and sometimes for much of the negotiation, a more aggressive negotiator will take positions that are pretty extreme. And you just want to not panic when they do that. And not go totally off the rails, like “That will never happen and I’m going to court,” and go to court. And also, you don’t need to say, “Yes. Okay. That’s fine. I’ll accept whatever you’re suggesting,” no matter how unreasonable it is.
What I have seen to be effective is to give a little bit of time and space to a totally unreasonable proposal or offer because on some level, people know when what they’re proposing is really, really skewed and really unreasonable. And you don’t have to lash back out at them and say that in a really biting way, but you can simply say, “Look. What you’re proposing doesn’t work for me on a lot of levels.” And you can give it a week or a couple of days to even respond and say that and let them sit with the uncertainty that they may not get to a settlement if they’re working in this way.
I think that’s one of the more effective ways to deal with someone who is particularly aggressive is to just not respond. I don’t mean not respond for three months, but don’t respond if they make an offer or they say something that’s super insulting or aggressive or skewed or totally unreasonable. You don’t have to engage with that.
And when you don’t engage with it rather than if you engage and fight with it, they don’t have to hold any of the anxiety that they’re going to lose your participation in the settlement process. And that includes even if you’re like “I’m not participating in this settlement process.” What I’ve seen be more effective is just not to engage around that immediately. Give them a little time and space to breathe, to calm down. And sometimes they will negotiate against themselves and say, “Okay, what about this?” or “We thought about this other way to resolve it.”
IF they don’t, you can, in due time, come back around and say like “Okay. I hear that this works for you and this is why you think this is fair and whatever. I’m not able to do that, but here’s what I can do.”
Keep a steady gaze on what your goals are and what your bottom line is. With the focus more on your goals, you don’t want to focus on your bottom line in the negotiation is because you’ll sort of trend toward that. But keep a really sort of intent, steady gaze internally on where you want to end up and sort of think of yourself as almost dealing with… It’s not exactly like a tantruming toddler, but just because they say something unreasonable, don’t let yourself despair that that’s where you’ll end up or feel like you need to engage with them around a totally ridiculous offer. You don’t.
And in fact, probably if somebody has a very aggressive negotiating style, they are used to people taking the bait and fighting back with them in a way similar to the way in which they fight with their adversaries. And so it can be disorienting in a way that’s productive for you to not engage on that level and, at the same time, not be so cowed by their demands or their aggression that you just acquiesce to get it over with, but to be steady and say nothing at first and see if they can settle down and make a reasonable offer and then to come back and say what works for you in a way that’s not attacking of them or intended to offend them, but is just plainly and confidently stating where you are and expressing that reality alongside their reality.
At the end of the day, no matter how aggressive someone’s style, and I’m sure there are a few exceptions to this out there, but the vast majority of attorneys want to settle their cases. They don’t want to go to trial. They do want to get the settlement that their client is willing to accept.
That’s the leverage that you have over them. They need your buy-in in order to get to a settlement, just as you need theirs.
So, if you can ignore the blustering and some of the more volatile, I call it acting out and a volatile way of engaging during the process, which is distracting and annoying, but if you can ignore that and just remind yourself that despite appearances, they actually do want to get to a settlement. They probably don’t have a vastly distorted idea of what would be a range of fair settlement results, but their style is just to really offer at one extreme end at the outset and maybe in the middle of the negotiation and then probably to end up somewhere relatively reasonable.
If you keep that in mind, you can sort of weather the storm, the stylistic storm of a more aggressive negotiator, and help them, help yourself, but help them make their way to a more reasonable resolution which obviously serves both you and your spouse.
That was our mini-episode on what happens and how to handle it when your spouse hires a more aggressive style negotiator. I hope it was helpful for you.