How many clients have experienced the frustration of negotiating terms of a Separation Agreement with their spouse in an adversary process that has involved lawyers, and that has seemed to take forever and cost a small fortune? Just when you think you are close to reaching the final “deal” that you can live with, there is a “push back” from your spouse, that makes you feel like exploding. It may not be a major item, in fact, it may not even involve money, but could relate to the return of a “personal item” or the division of furniture, but it is the “straw that breaks the camel’s back”, and you just feel like having your lawyer tell your spouse’s lawyer that the deal is off. Why should you keep giving in? Why does your spouse have to always win? You tell your lawyer to take the case to court.
How many negotiations break down at this stage, and how many clients are feeling dissatisfied? How many lawyers are also feeling frustrated and dissatisfied?
The typical lawyer response would be to justify the “fairness” of the deal. I believe we are so ingrained in our defensiveness that we bring strategies used in war to our communication. We become defensive any time we feel the need to protect ourselves. We develop barriers in our communication. We are protecting our egos, our self-image. Many lawyers engage in power struggles with their own clients, to try to convince the client that the proposed settlement is fair, and is in the client’s best interests.
As a lawyer in this situation I know I have felt frustrated with my client. I would try to convince him/her that the deal is more than fair; it would cost a small fortune to take this matter to court, with no guaranteed result, and I would tell him/her that they need to look at the big picture. In effect, I would be engaging in a power struggle with my client. My client is in a power struggle with their separated spouse, and I am also in a power struggle with the spouse’s lawyer.
When I was faced with this situation recently I made a conscious effort to try the methods of “Powerful Non-Defensive Communication” taught by Sharon Strand Ellison.
I first asked the client “what do you mean by fair”? The client was most upset and angry and continued to complain that they were tired of conceding, why did their spouse have to always win, etc. I then said: I hear you saying that your spouse’s proposal to reimburse her for some income tax is not fair to you and you want me to dissolve the negotiations, and take this matter to court. Yet at the same time you have said to me on numerous occasions that you want this over, that you are finding it incredibly stressful, you are having trouble sleeping, and you feel ill at times. You also have told me that the legal costs are killing you. And I know I have told you under the law model the result is not always so crystal clear, and there is a range of likely outcomes in terms of what a court might order, and the amount they are seeking is within that range, then I believe that you are responding right now from emotion because you are upset, and I think you should think about how you want to respond formally before giving me any further instructions.
My client agreed, and shortly thereafter we reached a final settlement.
What would the client/lawyer relationship look like if we could remove the power struggle from our relationships? What if we could change the way we communicate and we could all model effective communication techniques for each other? What impact might that have on our negotiations with spouses, and other lawyers?
I believe it is possible to remove the power struggle from our relationships, even with our teenage children, our spouses, and with other lawyers. We can change the world one word at a time.
Karen Thompson-Harry, B.A.(Hons), JD.
Barrister and Solicitor, Mediator, Arbitrator, Collaborative Family Lawyer
1 Wellington Rd. 124
Erin Ontario N0B 1T0
Telephone: (519) 833 0040
Fax: (519) 833 0041
Toll Free: 1 866 969 0040