Tuesday, December 14, 2010

Negotiation 101

There has been a lot of press about the art of negotiation this week.  A very good argument can be made that any deal which divides a pie with 16 pieces to one party and 1 to the other is not a good deal.  Yet that is the result of a significant deal which the national press has extensively covered. 

I think an argument can also be made that no one is that bad of a negotiator.  This leads to the direct inference that the negotiator who accepted one for his side while conceding 16 to the other may not have actually been playing for his side. 

So how is this relevant to family law?  Only in that sometimes clients jump ship, they move from one attorney to another.  When I am consulting with a potential client who has left his prior counsel, I sometimes hear that the former counsel was so bad  at negotiation that he must have been bribed or at least favored the opposing party or opposing counsel to such an extent that he took a fall against the client's interest.

In my several decades long experience that doesn't happen.  It is true that extremely poor results can be attribued to counsel.  Attorneys, like people everywhere, fall somewhere along a continuum.  Some are great.  Some are awful.  But poor results can also be attributed to other factors.  If it is the potential client's facts, that is usually easy to spot.  Harder to spot are issues related to the Judge such as immutable pet peeves. 

However, if the deal is 16 to 1, you can probably figure that the fix was in.  But how often has that happened?  Except for the recent infamous deal,  I've never seen such a bad deal.  Usually negotiations work more like my recent experience where we tortured numbers over months of work, analysis, research, offer and counteroffer to finally arrive at a settlement that cut both ways to both parties and was about as fair and equitable as you could ask.  After a very long term marriage which accumulated significant assets, the parties were finally able to let go the years of building vitriol to allow each other, and most importantly themselves, permission to move on.  The parties maturation allowed counsel to cross the Rubicon to end the litigation and strike the deal. 

So if you think your counsel is taking a dive, if the deal is something like 16 to 1, you are probably right.  If the deal is much closer to equal, then something far less sinister is taking place.  It is probably the nuance of law, particularities of your history and vagaries of circumstance operating directly on your experience. 

Michael Manely

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