How do I negotiate with my spouse’s lawyer?

Family Law|October 28th 2014

There’s plenty of guidance available to lawyers and judges on how to deal with an unrepresented litigant but I haven’t seen much out there aimed at unrepresented litigants themselves on how to deal with your ex’s lawyer and the judge in your case. Personally I think there is a need for such advice because it is increasingly common to find yourself up against a lawyer representing your ex, especially with the effective abolition last year of legal aid for private family law matters.

In such cases, typically dealing with such matters as finances and children, a litigant acting alone is most likely to believe they have a huge disadvantage from the outset. I’ve had many readers write in to the blog with sad stories of just how stitched-up they were in court – or at least, just how stitched up they believed themselves to be.

So I thought I would address this increasingly prevalent issue and offer some general tips for the litigant in person struggling through a case involving children or financial matters:

1/ Always, always, check your position in law before proceeding. It is a completely false economy to go ahead without ANY legal advice. You probably can afford to see a lawyer. There are many ways to arrange payment of a lawyer and many will give you some free advice at the start. So please, please, check your position before doing anything at all. You wouldn’t pull your own teeth out, you wouldn’t rely on self-diagnosis of a medical condition, and if you did either, you’d be likely to get it all wrong and cause yourself even more long term damage. Exactly the same principle applies to law, which is a serious and rigiorous process for which lawyers will have trained hard for at least six years.

2/ Never forget that your actual opponent is not the lawyer, but your ex. Closing off all lines of communication may do more harm than good. It’s understandable that you are feeling emotional, but the legal process is not about emotion, it’s about cutting a deal that both of you can live with. Although you may want to go for the jugular, you are unlikely to succeed. If you are struggling with your emotions, undergo therapy with a counsellor. They’ll be able to help you accept the past and move forward before you do anything else. Feeling better and more confident will enable you to get a better deal.

3/ Make sure your correspondence is crisp and to the point. Sending lengthy rants just isn’t helpful. Don’t make admissions or offers that you aren’t happy to follow through with, and if you are prepared to make a significant concession, consider making it ‘without prejudice’ so that unless it is accepted it can still be withdrawn. Take a deep breath and consider this all-important question before you hit ‘send’: if a Judge read this, would I be happy or want to hide under the court room table? If it’s the latter, delete. Also, don’t send your correspondence late at night, however good it looks. The cold and clear light of the morning is a much better time for correspondence.

4/ Don’t be inflexible. Relax, be prepared to resolve things, don’t avoid a meeting with the divorce lawyer or dodge mediation if it is offered. Think carefully but you also should not rule out settlement just because a proposal is being put by the lawyer and not by you. Enter into a meeting or mediation meaningfully, with confidence. Give it a good go and put your case in a sensible, unemotional way. You can adjourn the meeting or mediation if you wish, if it’s becoming clear to you that resolution isn’t going to happen, and then when court proceedings are under way, and minds are more concentrated and more information is available, try again. Resolution always remains an option – don’t forget that.

5/ Don’t treat the opposite lawyer as an enemy, even if what he or she is saying is upsetting. It’s bound to be because it’s your case, but the lawyer is a conduit who is simply repeating their client’s instructions. If they’re getting too near the knuckle though, don’t be afraid to say so. Tell them that this comment or that comment isn’t helpful, just as we lawyers do if we feel the same, and explain that it is affecting your ability to resolve matters. Lawyers usually prefer a quiet life, a happy client, bill paid and file closed. A done deal out of court is usually a highly attractive proposition for most lawyers, whatever posturing there may be, and some divorce lawyers will be posturing because they aren’t born negotiators and are frustrated actors. You however, with far more grasp of the case, should see through that and ignore it. Enter into conversations that are designed to resolve matters. Put your position to the lawyer clearly and sensibly and always, be prepared to negotiate meaningfully. Don’t lose your temper, however emotional you may feel.

6/ At the same time, don’t behave like a victim. You aren’t represented, whether through lack of funds or because you don’t want to be, so you have to bite the bullet and go for it. If court is the only answer then court it must be. Don’t sit there seeing everything and everyone as “out to get you”, because they’re not. They’re doing a job and now you too are also doing that job. So stay focussed and objective and don’t expect to be treated any differently just because you’re unrepresented. You won’t be, whether by the lawyer or by the judge.

7/ Don’t treat the judge as your friend. He or she is paid to judge the case, impartially, on the facts and on the law. If a judge is friendly, it doesn’t mean you’ve won. Don’t assume that because the judge is being patient, smiling and considerate, it’s a sign you’ve won. Usually it’s because the judge wants to make sure both parties think they’ve had a fair hearing and an unrepresented litigant doesn’t have a lawyer to explain to him or her what happened in the court room from a legal perspective.

8/ Don’t write to the judge, or in the hearing ask the judge legal questions. The judge is not your lawyer and you must not expect him or her to do anything more than listen to your case and judge it. Writing to the judge or asking constant questions can annoy them and that is not a good idea in these cases, where the judge has discretion in the conclusions he can reach.

9/ At each stage of the process do your best to get some legal advice. Please don’t assume that conducting a case in court is easy because it isn’t. There are pitfalls every step of the way. No one wants you to end up tearfully ruing the day you decided to go into court without a lawyer, but reality is that you might. Of course, there are also litigants with lawyers who have regretted ever going to court. Not everyone steps through those court room doors and back into the light of day with a smile on their face. Many do not.

10/ Never underestimate the cost of litigation. This costs is more than financial. It can take up too much valuable time, can cost too much in terms of stress and pressure and damage what might turn out to be a future cordial relationship. Stand back, stay objective and if you can settle then go for it. But if not, if your ex is a nightmare, stand your ground, litigate your case with as much legal help as you can (my book might be a good start for 99p!) and let the judge decide when the moment comes.

If you are new to the divorce process, see here for more information and guidance.

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

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  1. paul apreda says:

    Marilyn I wish you wrote more of these sorts of posts. Extremely helpful and full of excellent advicea. Luckily we try to ensure that the LIPs who come to are given this advice. I was intrigued however by the comment about checking your legal position. What we tell LIPs to do when facing an ex’s solicitor is to ask what the lawful basis is that the other parent is interfering with the child’s right to contact. It would be very helpful if lawyers explained to their clients that legal point as it would significantly reduce disputes. If of course there is some child protection reason for interfering with contact then no doubt lawyers will explain to their clients that the correct procedure is a referral to children’s services rather than to unilaterally suspend contact. We’re really looking forward to working with you in North Wales. Best wishes, Paul

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