FAMILY LAW: Relationships are at the crux of family law settlements

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By Gregg Herman

I feel like a new mom.

The American Bar Association recently published my book, “Settlement Negotiation Techniques in Family Law: A Guide to Improved Tactics and Resolution.”

Much like a pregnant woman, it was a great relief to end the lengthy germination period (three years!) and see the baby alive and kicking.

While most divorces eventually settle, many do so after a great deal of trauma and pain, both emotional and financial. For some reason, while settlement rates range from 80 to 90 percent of all cases, or even higher, about the same percentage of CLE programs are on how to litigate divorces.

While there is a tremendous amount of literature on negotiations in a business context, there is little, or none, in the divorce context.

My conversion to a settlement-based lawyer has been gradual. My first seven-plus years of practice were as an assistant district attorney. My first years as a family law attorney entailed quite a bit of litigation. However, over the years I began to realize the value of settlement to clients. So, I consider myself a recovering litigator.

Family law is one of the few, if not the only, fields where the opposing sides are likely to have an ongoing relationship with each other. As lawyers, it is critical we keep in mind that how we handle the dissolution will have an effect on the quality of that future relationship.

As proof — as if any were needed — when I first started serving as a guardian ad litem, I expected children to tell me they wanted their parents to reconcile. That rarely, if ever, has happened.

Instead, children of an age where they can express their desires all tell me they want the same thing: for their parents to get along.
To be sure, there are various methodologies in play designed to enhance the prospect of a more peaceful future. Perhaps the most well known recently is collaborative divorce, which avoids the litigation system entirely.

Yet, for a number of reasons, as shown by my past studies{ https://wislawjournal.com/2011/06/08/why-are-there-fewer-collaborative-divorce-filings/} of Waukesha County, collaborative divorce has not grown{ https://wislawjournal.com/2013/02/04/family-law-why-collaborative-divorce-continues-to-decline-in-popularity/} beyond a very small minority of cases, about 3 percent at best.

Similarly, cooperative divorce, which allows for litigation while trying to avoid it, has yet to gain a significant following, although new efforts are underway to promote the process.

Perhaps lawyers simply feel that being a good negotiator is intuitive. After all, you simply start higher (or lower) than you really want, then compromise toward the middle. Who needs to know anything more than that simple methodology?

To be sure, there are a fair number of cases where that would work perfectly fine. But, in this field we deal with amazing complexities of a wide range of emotions and family dynamics. Calculating them into a family-law proposal is not as simple as it seems. Sure, you can ignore these dynamics and engage in simple positional negotiations. Or, you can try to be creative.

Have you ever had a case where one party has an opportunity to make extra money, but needs the cooperation of the other? For example, one party might be able to work overtime or a second job and make more money, but does not have to do so. That party might very well say that he will not work the second job or extra hours unless he can keep most of the money. If he says “all of the money,” there is no reason the other party should agree. But, if he says “most,” at what point will the other party likely agree?

Fortunately, there is substantial research in a field called “game theory,” which studies this type of scenario. Other research studies “branding,” which indicates where it might be advantageous to make the first proposal of settlement. There’s also the “prisoner’s dilemma,” which studies where compromises can be made between two noncooperative parties.

To be sure, my book is not a learned treatise on game theory, or any other sophisticated or unique settlement methodology. Rather, it is designed as a practical compilation of divorce settlement theories and practices with ideas on how to make the settlement process better.

There is a saying that “a bad settlement beats a good trial.” My theory is that a good settlement trumps everything.

In my book, I quote Mahatma Gandhi from “My Experiments With the Trust,” where he discusses his 20 years of legal practice. He says he settled hundreds of cases, and as a result, “I lost nothing thereby — not even money, certainly not my soul.”

Gregg Herman is a shareholder with Loeb & Herman SC in Milwaukee, which practices exclusively family law. Herman can be reached via email at [email protected].