When separating couples and their lawyers come to the table to explore settlement, interruptions, defensiveness, and premature conclusions can derail and impede progress toward resolution. While it’s a good idea to prepare and identify settlement goals before negotiating, keep an open mind about how those goals can be achieved. This is true for the parties who need their issues resolved, and also for the lawyers. If we all practice curiosity as a first step, it will pave the way to respectful communication and settlement.
Good judges who preside at trial will consider all evidence and review it after the trial ends before reaching a conclusion and issuing a final judgment. A judge may also ask witnesses questions directly to better understand the evidence. Similarly, good lawyers will avoid making assumptions and reaching conclusions early in a negotiated or litigated case. Lawyers may size up the situation accurately right away, but it takes time to appreciate nuance, and to understand the dynamics well enough to effectively negotiate. Without an understanding of each party’s perspective, settlement can be elusive.
Mediators are expected to be curious because we are neutrals. We are valued for our ability to listen and feel compassion for both clients. Lawyers are often expected to be the opposite, to take a position from the start and be as inflexible as possible in the pursuit of zealous advocacy. But here’s the thing: if lawyers are open minded and curious, then everyone feels heard, and the lawyers know what’s important to both parties, increasing the possibility of a good outcome for all. At the negotiation table, too many lawyers approach topics with an inflexible position and start sentences with messages such as “I’m not going to advise my client to agree to that” instead of “tell me more about your proposal and its rationale.” Lawyers, and more importantly their clients, benefit by coming to the table with curiosity. Do prepare and set goals prior to negotiating, but then listen, read, consider, and be genuinely curious when settlement discussions get underway.
Lawyers can also help their clients foster better communication with their former partner, helping them break away from old dynamics and co-parent more effectively. I have helped many clients learn how to respond to a former partner’s emails with boundaries and grace. I encourage clients to speak directly to their former partner, and to ask open-ended questions, to be curious. This can dramatically change the dynamic. For example:
A busy mom who works shifts on the weekends when the children are with their Dad, picks the kids up from school on Monday. They get home, and the children are bone tired. They report plenty of screen time that weekend, and their homework is incomplete. She tries not to react, but she can feel steam rising in her body. Why can’t he be more responsible? Now they’re going to have a tough start to the school week. That night after the kids are tucked in, she sends her ex-husband an email: Bruce, Thanks for not even attempting to think about the kids’ needs this weekend. Now it’s going to take me several days to get them back into their routine. What were you thinking? Amanda
After work on Monday, Bruce comes back to his apartment. It’s a mess. He sits down on the couch and puts his head in his hands. He begins to cry, quietly. A few days earlier, he learned that his sister Nell has stage 3 ovarian cancer. To say he and his sister are close is an understatement. He wanted to connect with kids that weekend but wasn’t his best self. They played a lot of board games and he took a few naps on the couch while they sat nearby and played on their tablets. Meals were off schedule and when his sister called, they had long, difficult phone calls while the kids had more screen time. He felt like the bottom fell out of his world. After a few minutes, he stands up and walks over to his desk. And checks his email….
We know that “What were you thinking?” is not a real question, it’s a rhetorical and accusatory question. Are you feeling as sad about this misunderstanding as I am? How could it have gone differently? If Amanda were curious about why the kids came home so tired with incomplete homework, she could have emailed this instead: Hi Bruce, The kids seem really tired tonight and they were out of sorts. How did the weekend go? Do you know what might be going on for them? Amanda. Then from Bruce: Amanda, This weekend was really tough. Nell had a biopsy last week and she has Stage 3 ovarian cancer. Tough weekend. Sorry. Bruce. Amanda knows how close Bruce is with Nell. Suddenly it all makes sense. She picks up the phone to call Bruce to ask if there is anything she can do to help. No steam, no accusations, no conflict.
Make sure that you are working with a divorce professional who values curiosity, and who has good listening skills. That lawyer or mediator will have the greatest chance of success at being effective at resolving issues and will help bring the matter to a reasonable settlement as part of a respectful process.