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Negotiating Pitfalls: Criticism and Labels

This is part two on negotiation from Kevin Hannah Q.C. To read about why negotiation is such a powerful tool in family law please see our June post. This month we can look at some things to void in the negotiation process.


Criticizing:

I have been involved from time to time in evaluating law students in mock negotiations. The students each represented a husband or wife in a divorce situation. In one negotiation the issue was the parenting arrangement (a.k.a., custody). The husband was quite critical of the wife’s parenting style as being too laissez faire.  He believed in consistency and structure. He was ex military, or an engineer, I can’t recall. Either stereo type works well here. In any event, his lawyer, during the negotiation and while explaining why alternating weeks was best, referred to the wife as being a “lax parent”. 

Now most parents would probably not take kindly to being described as lax. It has connotations of being uncaring and negligent.  The mother’s lawyer in the mock negotiation took the comment in stride and didn’t let it rattle her.  It was as if it hadn’t been said. But outside of a law school mock negotiation – in the real world – the actual husband and wife would likely be present. The wife in this example would probably take offence. She might find the husband’s parenting weaknesses and zero in on them. She might get mad and make her anger known. She might be silent but seethe inwardly. In almost any scenario the criticism will be counterproductive if the goal of the negotiation was to find a mutually acceptable parenting arrangement.

So I pointed this out to the student lawyer when I evaluated him at the conclusion of the unsuccessful mock negotiation.  I asked the other student how she felt when he said it. She said it was easy to ignore in a mere exercise, but both acknowledged that it had the potential to derail the negotiation in the real world.  I also asked them both about how the difference in parenting styles might be addressed differently.  Both were at a loss.  I made two observations:

  1. If it is important to the dad that the kids have more structure and supervision in the mother’s care he might ask her whether she would consider some common rules and parenting approaches in both homes – e.g., limits to time on cell phones; set bed times; or homework completion. When a criticism is not being leveled it is often possible to introduce parenting issues in a more neutral way that are more likely to be received and considered.  Any parenting criticism is capable of being framed as a neutral issue or objective. That way it has the best chance of being received well and adopted.
  2. And, there are certain parenting issues that are just not “legal issues”. The courts usually do not get into the business of micro-managing parenting.  If the children are not malnourished a judge won’t likely make an order about avoiding sugar cereals for breakfast or donuts for desert.  Different judges and jurisdictions have different willingness to make decisions about certain parenting issues.  You need legal advice about whether, in your jurisdiction, an issue that is bothering you is really something that a legal contract or court order could effectively address.

Labels:

Labels are good and bad.  They are good when they can be a short-cut to communicating a complicated idea (e.g., “fly fishing” vs “spin casting”). They can be bad when they are loaded, or parties do not agree on what they mean (“conservative” or “liberal”).

A parenting label that can hinder rather than help a negotiation about parenting is “helicopter parent”.  This label implies a fear-driven, paranoid approach to parenting.  Few would welcome that label.  For example, if the specific parenting concern is when Suzie should stay home from school whenever her tummy hurts, and the parents are looking at options in a contract to make their decisions like this more structured and predictable, it will likely not be productive for one parent to accuse the other of helicopter parenting.  It will, rightly, be taken as a criticism and possibly responded to with a counter attack.

Rather than using a loaded label likely to hijack the discussion and move the focus to who is the better or worse parent – a debate no one will win – one could avoid the label and offer options capable of implementation.  For example, the parties could agree that once a child has missed more than two days of school in a month due to illness the other parent should be notified and the child should be examined by a medical professional.  Or, they might agree to leave any such decisions entirely to the discretion of the parent who has care of the child, understanding that they will be given freedom to decide such matters when it is their parenting time. This could lead to a discussion about which parenting issues might require consultation with the other, or rules, and which are relegated to the “day-to-day” category of parenting decisions that any adult responsible for a child may make in their own discretion. 

Look past labels to the substance behind them and try to avoid using them at all if possible.

Our lawyers are experienced and expert negotiators. If you have any questions about negotiation please contact us. If you have questions about fly fishing vs. spin casting please contact Kevin directly.

Moe Hannah LLP

Client safety is important to Moe Hannah and so is client service. The health of our staff and clients is our top priority.  If clients and counsel prefer to work remotely during this difficult time, options exist for us to provide this service. Moe Hannah is able to do “virtual” non face-to-face meeting through internet conferencing.  We can do virtual consultations, mediation, or mediation/arbitration.
 
We can make it easy!
 
We will email a link for the conference to each person. The only requirement is internet access and a device suitable for the conference, ideally a camera and microphone.  Some people just use their cell phones. 
 
If you have any questions, please call or email us to talk about how we can make this work. 
 
We can still meet at Moe Hannah LLP for those people that would prefer to personally attend.  Everyone entering our office will be screened in accordance with the latest Alberta Health Guidelines. 
 
Our lawyers and assistants are set up to work remotely and we will continue mediation, mediation/arbitration and client meetings using Teams Video Conferencing, as well as our regular telephone conferencing.
 
Consider Alternative Dispute Resolution
 
The Courts have announced that they are limiting access to urgent family law mattes. In light of this, parties may want to consider the mediation/arbitration process.  Please get in touch with your lawyer and/or assistant if you have any questions regarding your matter.
 
We look forward to working with you and helping you move forward during this difficult time. 
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