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
http://www.allfamilylaw.com/CM/Custom/Local-Knowledge-Local-Courts.asp

Why Not Expand the Pie?

Tonight's blog post is courtesy of Kairi Smith Gure, who is our Associate  in our Lawrenceville office.



http://www.allfamilylaw.com/CM/Custom/Attorneys.asp

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I am in the process of earning a masters degree in the Science of Conflict Management.  I am in my first semester of a four semester program and I have already begun to view most of life’s experiences as a series of negotiations, some simple, some complex.

In my negotiation's class we are learning about different types of negotiations.  Before a couple of weeks ago I really didn’t think that there was more than one way to negotiate.  I thought, like most, about negotiations as the classic exchange where both parties have competing interests and each gives up as little as possible and, in a best case scenario, each side walks away with 50% of what they wanted.  Both parties are usually leave the negotiation disappointed that they didn’t get more.  But, in some cases, if one party was more savvy (or conniving) than the other party, they are able to “win” and walk away from the negotiation with more than 50% (or maybe all) of what they wanted.  This is what I have know come to know as Zero Sum negotiating.

Zero Sum negotiating works on the idea that one party has to get less of what they want (or need) for the other party to get more of what they want (or need).  When you are zero sum negotiating you are working with a “fixed pie” meaning that you are focused on the idea that there is not enough to go around and, in order to “win,” the other party has to “lose”.

I propose that Zero Sum negotiating, while definitely the way to approach many negotiations, is not the best fit for resolving most of the conflicts that take place in realm of Family Law litigation.  Integrative negotiating would provide parties with more satisfying, durable, and successful agreements, bringing them one step closer to resolving the family conflict that brought them to court in the first place.

Integrative negotiation is based upon the idea that if both of the parties approach the negotiation with the thought that they can both “win,” the focus of the negotiation will create an agreement that achieves the goals of both parties.  Ideally this would happen because the parties could think outside of the box and come up with creative solutions to meet everyone's needs and/or goals.  This process would in turn “expand the pie” so that there was enough for everyone.

I know that emotions run high for the parties when dealing with Family Law conflicts because the stakes are generally very high.  As I work with my clients I do my best to facilitate an approach to their negotiations that “expand the pie,” so that long after the day the agreement was created and emotions are no longer raging, they are still satisfied with the outcome.  To me this it what it means to “win”.

Kairi Smith Gure

Do you have anything in crimson?

What is it?  The time on task, the integrity of the work, the "taking it to a whole new level" thing?

I'm talking about nuance.  Everywhere I look these days its is all about nuance.  And I am totally okay with it.  I like it.  I work within nuance.  I am nuance's main man.  I dig that space.  (Okay, maybe that last statement was a bit extreme.)

So much of my work is neck deep in nuance.  There are subtleties to each turn, each eddy, each choice taken, each phrase uttered, each proposition proposed.  It is an intesive diplomatic exercise.  The State Department would be proud.

How do you work a case?  How do you further the client's objectives?  Do you ram in like a steamroller, flattening everything in your path?  Is Blitzkrieg the best approach in a family setting?  I don't think so, not normally and hardly ever.  It's all in the approach, the subtle approach, the nuance. 

In litigation you have to dot your i's and cross your t's.  This is also exceptionally true in family law.  But family law is far, far more than just litigation.  True, you better know how to litigate with the best of them, up to the task of trying a case in the Old Bailey, but you also better know how to avert disaster at the Suez Canal.  You've got to talk them off the ledge, coax them to the negotiating table and leave them happy that they ever met you.  You've got to create the solution that moves everyone forward. No small feat.

So, is it the time I've been on this task, the integrity of my work or my taking it to a whole new level?  Like surfing, I think it is all of the above.  Like fine wine, it just gets better with age.  Like... oh, you get the point.
In short, nuance is my life.
It's hard work.  It is certainly tricky work.  But it is exceptionally rewarding work.  No nuance there.

Michael Manely