Thursday, May 14, 2009

Negotiating Effectively: Why You Shouldn't Hurry

One of the most common reasons some people sign up for a Collaborative divorce (or other family law matter), is that they expect it to be a fast process. Relatively speaking, that's an accurate expectation. Compared to how long a traditional divorce takes, a Collaborative divorce is normally much faster, although it isn't always. Most can be finished in three to four months, some sooner and some later. In contrast, a litigated divorce in Tarrant County which is resolved at trial or shortly before trial (when mediation often occurs) will usually take at least a year to finish, and it's not unusual for a divorce to take longer.

Unfortunately, many people going through a Collaborative divorce start feeling the process is slow and bogged down if it doesn't settle in two to three months or if it just requires several meetings. As a result, they start looking for shortcuts and ways to move the process along faster. When one side gets very anxious to settle the case and get it over with, they will usually experience one or more of the following problems:

1. The anxious party tends to give away too much. It is quite easy for the party who isn't ready to divorce, or who just isn't in a hurry, to start to drag their feet and slow down the process. That increases the anxiety level of the spouse in a hurry, which normally leads the hurried spouse to sweeten the pot and offer a better settlement to the other spouse. Over and over, I have seen one spouse maintain a position on settlement terms and refuse to budge, leading to the other spouse moving closer and closer to what the first spouse demanded. Sometimes, the anxiety is self-imposed and sometimes it comes from an exterior source. Whatever the reason, the person making the concessions is often making a mistake and offering more than would be necessary without the anxiety.

2. Hurrying reduces the amount of time to conduct due diligence. When on or both of the parties want to move quickly through the process, the attorneys and other professionals may not have the time to fully explore the facts of the case. Even when the parties both think they know all the issues and both think they understand the information relating to the issues, they may be wrong. It is very common for the parties to not understand various technical issues about assets and debts. For example, they often have mistaken ideas about what to do with retirement funds. The attorneys and the financial neutral need time to gather records and analyze them. Similarly, a child specialist may need some time to explore the issues about sharing time with the children. A superficial review of either property or kid issues can lead to serious problems later on.

3. Another problem is that the parties tend to lose sight of their interests and focus on positions. Often, when the parties get in a hurry, they become very willing to skip over setting and explaining their goals. Even when they have identified their goals, needs and interests, they sometimes stop thinking and talking about them when there is pressure to move quickly through the process. When that happens, they inevitably fall back into positional bargaining, relying on traditional, arbitrary guidelines or percentages, instead of analyzing how to best meet each other's needs.

4. Hurrying usually is associated with reduced listening to the other side. Listening to each other is one of the key values of Collaborative Law. Sometimes just seeing improved communication skills provides a great deal of satisfaction. When a party, who has not been listened to during a marriage, experiences discussions where the spouse begins to listen and speak more respectfully during the Collaborative Process, that party will feel much better about any agreement and it will be easier to reach an agreement. Hurrying devalues listening. The objective becomes primarily to reach an agreement, and true listening bogs down the process. The result is that the parties fall back into old communication patterns, and that usually doesn't emphasize good listening. In other words, the parties stop listening to each other and just try to negotiate the same ways they used to argue. That leads to skipping steps in the Collaborative process and sometimes overlooking options, idea and analysis of facts.

5. The other side may get upset by feeling pressure to finish early, making agreement less likely. Many people, when negotiating, will become very resistant if they feel like they are being pressured into something they don't fully understand or which they may not fully agree with. Some people just automatically start opposing something when they feel a lot of pressure to decide quickly, especially if they are a little uncomfortable or if they don't trust the other party.

As frustrating as it may be for someone going through a divorce, it is usually necessary for one party or the other to slow down some during the process so they can advance at the same pace as their spouse (or the other party). Trying to rush the other party can cause delays or failure to reach an agreement.

And by the way, in a traditional litigated divorce, if one party wants to slow down the process and drag it out for any reason that's easy to do. Collaborative Law is not worse than litigation, in terms of speed. In reality, Collaborative Law generally is a faster means to reaching an agreement than is litigation.

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