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Survey: More training needed for negotiations rather than litigation

Gregg Herman is a family law attorney with Loeb & Herman in Milwaukee. He is board certified in Family Law Trial Advocacy by the NBTA, a fellow of the American Academy of Matrimonial Lawyers and is a former chairman of the Wisconsin Bar Association and ABA Family Law Sections. In addition to writing for the Wisconsin Law Journal on family law issues, he operates Wisconsin Family Law Case Finder, a legal research site for family law practitioners. He welcomes comments at gherman@loebherman.com.

Gregg Herman is a family law attorney with Loeb & Herman in Milwaukee. He is board certified in Family Law Trial Advocacy by the NBTA, a fellow of the American Academy of Matrimonial Lawyers and is a former chairman of the Wisconsin Bar Association and ABA Family Law Sections. In addition to writing for the Wisconsin Law Journal on family law issues, he operates Wisconsin Family Law Case Finder, a legal research site for family law practitioners. He welcomes comments at gherman@loebherman.com.

Several months ago, my friend, Dr. Ken Waldron, a (semi) retired psychologist from Madison, and I were discussing the importance to children of their divorcing parents peacefully settling their disputes when Ken noted the lack of empirical data on settlement negotiations.

Well, that lack of data presented an opportunity for us to gather some. So Ken and I decided to conduct our own study. Although the title of our final product does not accurately describe our article, our work has now been published in the State Bar of Wisconsin publication, Wisconsin Lawyer: Gregg M. Herman and Kenneth H. Waldron, “Beyond the Divorce: Crafting Successful Settlement Agreements,” 93 Wis. Law. 34 (December 2020).

Our study consisted of a survey of attorneys, mediators, judges and Family Court Commissioners. We asked about thirty-one questions on settlement negotiations, clustered into five topic groups.

Not surprisingly, most of the respondents said they believe that divorcing clients are better served by negotiated settlements rather than by litigation. We were surprised, however, by several of the responses. For example, some people rated the relationship between the attorneys involved in a case as being significantly more important than the influence of courts in reaching settlements. We would have thought that the influence of courts was actually of higher importance.

Also surprising was a lack of emphasis on training in negotiation and settlement strategy. Since most divorce cases (as many as 90% of the total – and maybe more) are eventually settled, I have long been surprised that most CLE courses in family law (again, maybe as many as 90%) include or are dedicated to litigation rather than negotiation. In other words, it seems that 90% of all training is about what lawyers do about 10% (or less) of their time. This anomaly exists notwithstanding the importance of settlement and the existence of substantial literature and training opportunities in negotiation.

Certainly, a great deal of that disparity is due to a feeling that negotiation is intuitive (start high and settle lower or vice versa) whereas litigation requires substantial training. However, we believe that even experienced negotiators can become more effective by learning about negotiation strategies.

Our survey, however, shows the importance placed by those in family law on negotiation and mediation. For that reason, our article concludes by listing various ways lawyers can become better negotiators.

Such improvements are indispensable to lawyers who can serve as mediators or Guardian ad Litem for minor children. Indeed, all lawyers might benefit from learning to help clients reach agreements in a manner that’s most conducive to their future ability to parent their children.

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