In the Collaborative Practice or Collaborative Law model of dispute resolution – we find a potentially transformative way to find solutions to our client’s problems. As most lawyers are now aware – the concept of “Collaborative Practice” is rooted in a commitment signed by the clients and their lawyers that they will negotiate in good faith, with full disclosure, in a respectful manner – under the assurance, in writing, that the lawyers retained are limited to the negotiation process.
However – simply signing the Collaborative Agreement is no guarantee that the process will be successful. Our clients are, typically, in stress and left to their own devices, will often allow their anxiety and anger to infect the process and make efficient negotiation impossible. Clients may fall into typical patterns of combative communication, they may seek to delay or refuse proper disclosure, and they may seek to engage in “positional bargaining” – not only undermining the efficacy of the process – but in the bargain, reducing their opportunity for resolution of their problems without litigation.
To assist the process – a system of initial “Ground Rules” are often reviewed with clients in advance of commencing Collaborative negotiation – which rules illustrate the “Do’s and Don’ts” of Collaborative Practice to give clients their best opportunity for a negotiated outcome.
These “ground rules” are equally effective outside of the formal collaborative process, so, while these may be most often used as the ground rules for effective negotiation in the Collaborative Practice – I would suggest that they are in fact broader than that – and can apply as rules to effective negotiation generally.
Do’s and Don’ts of Effective Negotiation (Collaborative or Otherwise)
1. Do Attack the problem, Don’t attack the other party.
The bottom line in negotiation is being effective. Our goal in negotiation ultimately is to communicate your client’s needs and concerns in a manner which induces the opposing party to reconsider the differences between their current position and your own.
Attacking the other lawyer or the other party will never make them more likely to fully consider your argument – and will typically provoke a defensive or hostile response. To illustrate – consider a situation where the other party has suggested their income in a child support matter is significantly less than you suspect. Whether or not they have been honest is actually not the problem – the problem is that you don’t have sufficient information to respond properly. So – rather than communicate in a hostile fashion – consider taking a more professional and in fact confident approach by simply asking for more information to allow your client to fully understand their position. Such an approach is less likely to increase hostility and is much more likely to create an opportunity to find a mutually acceptable settlement position.
2. Do seek to Express Your Clients Needs and Interests – Do Not Assert Positions
Our client’s “positions” do not facilitate settlement. Telling the other party or their lawyer than your client is demanding “X” dollars to resolve a matter ultimately has no meaning to the other party. Effective negotiation requires that you effectively communicate your client’s interests and needs (in the context of their legal issues) in a manner which induces the other party and their lawyer to see why it is in their interest to find settlement.
“Positional bargaining” is what we find on used-car lots – “I want $5,000.00 (but I’ll take $3,000.00). This form of bargaining actually makes settlement more difficult because it increases distrust and casts doubt on all further assertions by your client. (If I know he’s not being honest about what he suggests the car is worth – what else is he not being honest about?) It is much more effective to suggest, “My client needs to receive fair value for this car. Other similar vehicles have sold between $3,000 and $4,000.00, and he would like to receive something in that range.”
Often the clients have shared interests – which can also be used to also facilitate settlement, the most common shared interest being a desire to avoid the delay and expense of litigation. Do not hesitate to illustrate where shared interests exist – such as reduced legal expenses, a desire to have matters resolved quickly, and the best interests of the parties’ children are a few examples.
3. Do Assert Terms of Agreement that are Reasonable and Constructive – Do Not Over-reach or Assert Clearly Unreasonable Terms
What is your response where you receive an offer or a proposal which is patently unreasonable? Does it encourage trust and good faith? If we look at our proposals from the perspective of the other party – it helps us understand the problem. A grossly unreasonable suggestion is worse than no suggestion at all. Again – it reduces trust and casts doubt on all communication that follows. It increases animosity and rather than assist in moving the parties closer together – it moves them farther apart.
4. During settlement meetings (both attorneys and both parties present), for the meeting to be effective – stress to your client the need to communicate in a respectful fashion – as they would like to be communicated with themselves.
Do not assume your client will be able to do that – in advance of any such meeting, do provide your client with the following advice:
1) Do not interrupt when the other party or his or their attorney is speaking. You will have a full and equal opportunity to speak on every issue presented for discussion.
2) Do not use language that blames or finds fault with the other. Use non-inflammatory words. Be respectful of others.
3) Speak for yourself. Make “I” statements. Use each other’s first names and avoid “he” and “she”.
4) If you share a complaint, raise it as your concern and follow it up with a constructive suggestion as to how it might be resolved. Again – seek to attack the problem – not the person.
5) Listen carefully and try to understand what the other is saying without being judgmental about the person or the message.
6) Talk with your attorney about anything you do not understand. Your attorney can clarify issues for you. Often clients will become frustrated or angry when they are having difficulty understanding an issue – and may project that to the other party – normalize this for the client in advance and assure them that you will explain anything that they become uncertain about during the meeting.
5. Do assure that you commit the time required to advance negotiations.
Be prepared for meetings. Too often we allow our work loads to delay negotiations unreasonably – and again, this will serve to escalate client anxiety and frustration – which reduces a client’s ability to negotiate rationally and reasonably.
6.Be Patient.
Taking the foregoing into account – Do advise your client that there is a need to be patient – delays in the process can happen with everyone acting in good faith. Occasionally, when seeking to obtain disclosure necessary to advance negotiations, seeking documents from third parties will take some time. Normalize this for a client and assure them that minor delays are not indications that the other party is seeking to frustrate them.
