A bad marriage is hard. Divorce is harder. Negotiating a divorce is very hard. Dirty tricks in a divorce is not hard; It is shocking…But sadly it happens….often.
Amidst the delicate process of untangling shared lives, emotions, anger and revenge sometimes cause spouses to resort to tactics usually reserved for covert military operations. However, some divorcing spouses and their lawyers will resort to unfair tactics to secure advantageous outcomes in divorce.
Drawing insights from G. Richard Shell’s “Bargaining for Advantage: Negotiation Strategies for Reasonable People,” I will uncover some shady tactics deployed in divorce negotiations and how you can navigate through them.
The Red Herring: Similar to Hollywood producers adding unnecessary plot-lines, some lawyers introduce extraneous issues into divorce negotiations meant to distract and confuse the other lawyer and frighten the other spouse. Then they appear to concede on these non-essential issues to create a facade of cooperation while angling for concessions on other issues.
So how should you manage this? Uncover their true objective, call it out, force transparency and refocus on the important matters, facilitating a more productive negotiation process.
Authority Ploys: Playing the authority card is a common ploy in negotiations. Senior lawyers taking advantage of junior lawyers, using hire-gun expert reports, conflicting out the other lawyers, etc., some spouses or lawyers may exploit such tactics to disempower the other spouse, gain a tactical advantage and manipulate outcomes.
So how should you manage this? Establish upfront that the process will either be fair or unfair, that games will not be tolerated and that you can see through the tricks. Invite the other spouse or lawyer to play fair or leave it to the judges. By insisting that all negotiators and negotiations are even-handed and reciprocal, you are ensuring equality of bargaining power, accountability and transparency. That way, you mitigate the risk of falling prey to power grabs.
Good Cop/Bad Cop Routine: Divorce negotiations often involve a spouse and a lawyer, each playing a different role. The “good cop/bad cop” routine is often used to allow one of them to come off as the reasonable one and the other as the difficult one and then they use that self-created imagery to capitalize on the other spouse’s emotions, seeking to leverage an alignment with the good cop who really is serving their own goals, while appearing sympathetic.
So how should you manage this? Confront the tactic head-on by acknowledging the overt theatrical display and steer the conversation towards an even-handed collaboration. Invite a live or Zoom meeting forcing all to face one another to out the routine. Addressing the apparent good cop/bad cop routine can diffuse tension and refocus negotiations on substantive issues.
In conclusion, identifying dirty tactics early and head-on eliminates delays, cost and anguish. It will empower spouses and their lawyers to negotiate in good faith. In the realm of divorce negotiations, transparency, collaboration, and vigilance against unethical tactics are paramount. By understanding the playbook of dirty tricks and deploying effective countermeasures, spouses and lawyers can pursue resolutions that uphold their interests with integrity.
Steve Benmor, B.Sc., LL.B., LL.M. (Family Law), C.S., is the founder and principal lawyer of Benmor Family Law Group, a boutique matrimonial law firm in downtown Toronto. He is a Certified Specialist in Family Law and was admitted as a Fellow to the prestigious International Academy of Family Lawyers. Steve is regularly retained as a Divorce Mediator, Arbitrator and Parenting Coordinator. As a Divorce Mediator, Steve uses his 30 years of in-depth knowledge of family law, court-room experience and expert problem-solving skills in Divorce Mediation to help spouses reach fair, fast and cooperative divorce settlements without the financial losses, emotional costs and lengthy delays from divorce court. You can find his CV at https://benmor.com/wp-content/uploads/2023/12/Steve_CV_Nov23.pdf. He can be reached at steve@benmor.com
Share this article on: