Negotiation Is Not A Waste of Time


Ask an Expert 2015-2-25-10:3:32

Negotiation is not a waste of time

For some reason, there are attorneys out there, and especially divorce and family law attorneys, who think attempting to resolve issues outside of court is a waste of time.

I had an evidentiary hearing in a case recently. There is actually a rule that requires the parties to meet and attempt to resolve their conflict prior to the hearing. That rule can be found in Arizona Rules of Family Law Procedure, Rule 47(G). The rule states that the parties shall meet and confer and submit a joint written resolution statement to the court detailing any issues the parties agreed to and which issues are left for the judge to decide. Opposing counsel couldn’t be bothered with that. I asked about the joint report, and she said she would write one herself and I could write one for my side. This is actually common practice in the family law bar.

I had another case where the other party did not have an attorney. My client was the one who told me that meeting before the hearing was a waste of time. Seems their disagreements had gone on for years and years with no resolution. I insisted that we meet and confer before the trial. It wasn’t so much because I’m a stickler for the rules (rules are meant to be bent), but that I just believe in the power of negotiation and compromise. There were a total of four contested issues in the case. We sat down and went through them one by one. After about two hours, we had managed to come to a resolution on two of them. Our scheduled trial was set for an hour. Each party gets half of that time. Typically, some of the time is taken up by preliminary matters such as swearing in the parties and announcing the case. So in the end, we had perhaps 20 minutes to make our case. I am convinced that had we not settled those two issues, we would have run out of time and my client would have had to wait even longer for a new hearing to be scheduled before his concerns could be heard. In other words, negotiating and compromise were keys to swift justice. (We ended up winning on the main issue).

The processes of meeting (preferably in person) and negotiating settlements are good to do even if the parties cannot ultimately come to an agreement on the big items. First, it allows the issues to be narrowed for trial, as happened in the positive case I just mentioned. Second, in family law cases, the parties often must maintain some kind of relationship after court, especially when children are involved. Preserving those relationships is critical to long-term happiness and mental health. Meeting and negotiating allows both parties to see the case from the perspective of the other. It fosters cooperation and understanding. Additionally, there is an issue of environment. How much easier is it to come to an agreement while sitting around a table, than in a court room where both parties are separated by attorneys on the inside of them, they are at two separate tables, and in front of them sits an authority figure in a dark robe? Lastly, there is something wonderful that happens when people voluntarily enter into an agreement. They tend to be happier with the agreement, and they tend to be more inclined to follow it in the future if it’s something they helped create. It makes sense doesn’t it? Who wants to follow the dictates of a piece of paper that a judge forced upon them?

The next time you are looking for an attorney to handle you family law matter, one of the questions you should ask them is what they do to avoid the expense of a trial and to find meaningful ways to settle your case. Statistically, you will be happier in the long run if you do.


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