By Gilbert B. Feibleman and Paul Saucy, Family Lawyers
Understand Your Role in the Settlement Process
Shakespeare said “to thine own self be true.” You cannot enter the settlement arena without knowing your own limitations. Understand when to call in a specialist. Other professions and occupations call in specialists for the difficult problems. Do not let your client suffer because of your own ego. Protect yourself by writing the client in advance to advise what you think will be the outcome at trial. Understand the nuances of genuine communication with your client. There must be “real communication” between the client and lawyer throughout the entire case for the negotiation process to succeed. Your goal is a client who is happy with the result not only on the day of settlement, but two years later as well. Explaining the process, the dynamics, how you will work, and what you “plan” to concede will build confidence.
Your client should respect your advice before, during and after settlement if you have cultivated the proper working relationship. Once this has been achieved the client will heed your instructions as to what should or should not be done during the case. Effective communication is the key to developing this level of trust and rapport. As stated above, this relationship begins at the initial interview and builds with each contact the client has with your office.
Create an environment where you can educate your client. The lawyer must be realistic with the client and be able to define what a good settlement is. Explain what probably will happen if the case goes to court. As the case progresses, keep the client fully advised of developments, including a reassessment of goals as needed. An educated client will be a true partner in the settlement process
The Mechanics of Settlement Negotiations
Many lawyers bargain by telephone because they prefer to avoid a face-to-face situation. Statements can be made over the telephone which would make many lawyers uncomfortable to say directly. The telephone is primarily useful for short interactions where procedures are established for the exchange of information, to exchange tidbits of information, or to resolve isolated issues. Using the telephone gives you the opportunity to not take the settlement call if you are not yet prepared for it. Be straightforward and tell the opposing lawyer if you are not yet ready to talk settlement. Such a call makes clear that you have enough self-confidence and knowledge of the settlement process to avoid a situation where you could have been taken advantage of. It also saves your client money. Keep in mind that this is a short time solution. Using the telephone also gives you the opportunity to gauge your opponent’s responses and correct
misunderstandings before they grow out of proportion. It also provides the opportunity to defer any settlement call if you are not ready. Calls do not involve a great expenditure of time or the client’s money.
Some lawyers prefer to bargain by mail, fax or E-mail. These mechanisms are also frequently used to establish procedure and to exchange larger bits of information. As with telephone contacts, these mechanisms are very popular with lawyers who do not like face-to-face meetings. Some disadvantages are that they do not provide the instantaneous ability to read a response or correct a misunderstanding. And too often, the lack of immediate response allows the recipient time to read too much into what was said. On the other hand they can provide a measure of protection against misunderstanding as to specifics since there are written documentations. Letters help summarize what has been resolved and identify what remains in dispute. Copies of letters will also keep the client advised and can be used as a checklist in preparing the final agreement. Some disadvantages of letters are that they are time-consuming and can be expensive for the client.
Fax transmissions create their own issues. Faxes provide the instant gratification of the telephone without a face-to-face meeting. Faxes seem to get immediate attention -unlike regular mail. On the other hand, faxes are often abused: beware the “scud mail” fax or the after 5:00 P.M. fax man.
The use of E-mail is rapidly becoming a popular method of client-lawyer and lawyer-lawyer communication. It is a wonderful tool but, like all tools, it can be dangerous if mishandled. E-mail transmissions between lawyers are often quick, short notes that are mistyped and are as casual in style as telephone conversations. This is especially true in divorce work since, as noted above, the same lawyers often work together. Do you know that your opponent is forwarding your E-mail message directly to her client? Did you intend it to be forwarded? What if it goes to the wrong person? Protocols need to be developed as to how email will be used. Develop a clear understanding with those with whom you correspond that E-mail is to be forwarded to the client only if it says “cc: client” at the bottom, or prepare your E-mail with the same level of care that you would a letter. This mutual professionalism may save you some embarrassment when your casual note to your “good buddy” opponent is forwarded to her client, who in turn forwards it to your client. It is just as important that you be circumspect when communicating with your own client by E-mail. While clients can copy your letters and send them to others, they seldom do. On the other hand, your E-mail message to the client is easily forwarded to parents, friends, members of the client’s support group and even the spouse with only a keystroke.
There is no better way to communicate directly with the other party than by face-to-face negotiation. You have the power to present yourself, and your position, in any manner you wish (i.e. confrontational, supportive, a conciliator, a problem resolver, etc.) and since the negotiation process begins with the first contact with the opponent, everything that you do or say will make a difference.
With this in mind, initially consider whether your client should even attend the settlement conference. Some clients should not for a variety of reasons, most of which have to do with temperament, demeanor or a history of abuse. If your client does attend, decide whether it is appropriate for the client to actively participate, be present but non-participatory, or to be in another room available for immediate consultation.
There are many advantages to having the clients present. You have the opportunity to impress the other party with your reasonableness without opposing counsel being able to filter what you say. You have the opportunity to gauge the parties’ reactions to proposals and gain insight into their driving emotions. There is an opportunity for the negotiations to evolve in a natural give-and-take atmosphere with all parties present.
There are also disadvantages to having the clients present. Your client may misinterpret posturing by your opponent that is designed primarily to impress her client or intimidate yours. There is also a danger that your client will compare you unfavorably with the opposing lawyer. A client may seek to control or interfere with lawyer-to-lawyer discussions. Your client may be intimidated either by opposing counsel or their spouse.
Or more likely, your client will not be able to keep his mouth shut, thereby destroying even the most carefully crafted negotiating plan.
A face-to-face negotiation is the forum where a lawyer’s negotiation skills are at their highest premium. Like trial, there is no margin for error. You cannot take back verbal statements or nonverbal cues once they are given without losing considerable “face” and negotiating strength. This unforgiving atmosphere is why many lawyers dislike face-to-face meetings. If you do your homework, however, this is the arena where you can utilize all of the above concepts to obtain the most satisfactory result.
Strategies for Face-To-Face Negotiation Sessions
Now that you understand the actors, the law and the facts and you have planned your objectives and your methods, it is time to establish the strategies by which you will accomplish your client’s goals. For example, there is a split of opinion as to whether it is useful to make the first offer. Your initial offer may have been substantially better than expected and may spur settlement while creating a sense of fairness. However, it is likely that the party who makes the first offer is also likely to make the first concession. That will not be a problem if the concession is pre-planned.
Put your negotiating plan into effect by setting the stage and selecting the venue. Outline all areas to be addressed before the session begins. One method is to work from a proposed stipulated judgment which is written exactly as you would want the judge to rule on your behalf. Send it to the opposing lawyer well in advance of the meeting so that she and her client have a chance to review and discuss it. This document takes advantage of the old adage that it is easier to edit than it is to create. In addition, using the judgment assures that you will not forget an issue nor argue about language after the settlement. Usually the lawyer who starts the document gets to draft it in final. This also allows you to fine-tune the language the way you think it should be.
Start the meeting by going through the document page by page to identify where there are disagreements. Never make concessions at this stage because the one concession you really need to make may be on the last page. You will no longer have anything to “bargain” with if you made all of your concessions as you went through the document for the first time. Negotiations will really begin as everyone goes through the form of judgment for the second time during this face-to-face meeting.
One of the fringe benefits of this approach is that, while a full settlement may not have been reached, you have reached an agreement on all of the language of the proposed judgment which is not in dispute. This may sound sophomoric, but how many times have you and your opponent argued for weeks over how the judge’s two-page opinion letter should be set out in the ten-page final judgment? One of the chief benefits of holding the settlement conference in your own office is that your secretarial staff can bring in revised versions as the negotiations progress. For example, pass along the first four pages with handwritten corrections to be retyped while negotiations continue on through the remainder of the judgment. This can also be done with a laptop in the conference room, but lawyers usually cannot type as fast as their secretaries. More importantly, it distracts from your ability to focus on the settlement process because you are so busy typing. The goal of using a proposed judgment in such a meeting is to have the participants leave the negotiations that day with a signed agreement. This prevents litigants from taking a few days to develop “buyer’s remorse” and reneging on the deal.
A disadvantage to using a proposed judgment is that it may send a message of inflexibility or create a perception that you are controlling. Some lawyers feel intimidated by this approach and may actually be more combative because of it. These fears can sometimes be allayed by calling the meeting with the purpose of resolving final “tough” issues after counsel have been “jointly” working on the form.
Throughout the process be aware of what is happening around you. Always keep in mind the opposing counsel’s personal skill, negotiating experience, personal beliefs and attitudes, the negotiator’s perception of the current situation, and the resources available to her client. Do not make an offer that causes the opponent to lose all interest in settling. Instead you should present your offer in a confident manner so that your beliefs set the stage and your assumptions form the basis from which the negotiations will proceed. At the same time, try to be aware of false issues which they are prepared to “give up on.”
Prepare your client ahead of time by explaining the process and the need to make concessions. Explain that your goal in presenting issues to be conceded and making more valuable concessions is to create a concession-oriented attitude in your opponent. Even false issues which are obvious to the opposing lawyer help elevate the opposing party’s confidence in his own lawyer. He feels good about the result when the opposing lawyer is convinced to give up on other issues. Making a concession (even a red herring) builds an atmosphere which is conducive to the opponent “giving up” on items about which you care for.
Working the psychological angle of the process is where it all comes together. Focus on areas of interest, not on a position — (i.e. refer to the children’s needs, not to the custodial label). Choice of language is just as critical. President Clinton in his 2000 state of the union address was skilful in describing each new spending proposal as an “investment” in the future rather than an expenditure. After all, everyone thinks investing is good whether or not they believe spending is bad.
There are many nuances that often affect the tone and pace of a negotiation. Consider injecting an emotional element into the negotiating strategy. There is always a psychological position to be taken:
- The welfare of the children and their need to enjoy the same standard of living.
- A reluctance to involve the children in a fight over support or custody.
- Loss of the children’s respect.
- Past practices of the spouse.
- The wife’s initial financial investment in the marriage and her role as a homemaker.
- How a wife assisted in her husband’s career.
- The wife’s inexperience in the business world.
- The husband’s business reverses.
- The poor health of one of the spouses.
- An affair and the attendant negative reaction of family and friends.
Another effective technique in lowering settlement barriers is to personalize the negotiation by calling the opponent (and sometimes the parties) by first name. Other common techniques are argument (legal or non-legal), flattery (genuine or not), silence (people often talk to fill a silent void, thus inadvertently disclosing information) and patience (good things do come to those who wait).
Humor can be an effective negotiation technique, but it is very difficult to use because the situation is not a humorous one for the clients. Stay away from humor unless you are a very good negotiator with a good feel for people. Clients seldom think you are as humorous as you think you are.
The most important thing is to demonstrate that you are willing to work at being a problem solver. You can do that by talking directly to the clients and not just to the lawyer. Focus on issues without attacking or defending. Recognize that mild threats can sometimes be effective if carefully communicated and completely understood by the opponent. Major direct threats, however, will break down the communication. “If you do this, I’ll do _________.” Try to create opportunities for the parties to “save face”. Even ask for criticism of your own position. “This is my solution, do you have a better one?”
Client preparation will ensure that your client does not lose confidence in you as you solve the other side’s problems.
Listen to the opposing lawyer, the other party, and the clients. Try to discern what is really being said. Listen to verbal signals where the meaning is apparent on its face (i.e., “I cannot offer more.”) or where the meaning is equivocal (i.e. “My client is not inclined to offer any more.”).
Observe nonverbal signals. Some obvious examples are the loss of temper or open expressions of pleasure or relief, etc. Careful observation may disclose more subtle varieties such as furtive expression, telltale mannerisms, gross body movements, etc. Try to make good eye contact throughout the negotiation. This helps you focus on the opponent’s verbal and nonverbal signals. In your own actions try to use questions rather than statements to avoid resistance to your words. Learn to restate in your own words the opponent’s position as a means of verification and clarification. Also, questions will get answers and information from the other side which can be used to effectuate settlement.
Closing the Deal
Now that the process is near its end you should aim for a total package, not a piecemeal disposition of some issues, though support or custody can easily be bifurcated. Creating a win-win atmosphere encourages cooperative behavior and increases the likelihood of a successful negotiation. Demonstrate your willingness to “tell” your client to “give” on an issue. Doing this in a negotiation is often a critical component of making the other side feel that you truly are interested in resolving disputes. It also helps you project an image of honesty and candor.
Save larger concessions to be the deal clincher made at the end of the negotiation meeting rather than at the beginning. By the end of the session the opponent has, hopefully, forgotten her carefully planned out concession pattern and thought out tactics. At that stage, the posturing is over and everybody sees what really is going on. Excessive demands have fallen away and the party is going to lose face if he backtracks.
Use the computer to get the agreement finalized. If you have worked from a form of stipulated Judgment, get it printed and signed while everyone is still together. If you have any doubts that an agreement will be signed call the court and put the settlement on the record by telephone.
If there is a problem bigger than the lawyers can solve try to seek out an independent third party such as a mediator or judge to insert some reality.
Never forget that this is likely not a one-time interaction between the parties. Winning a battle will not always win a war, and a major coup will be later discovered and used to punish the client in other areas in the years to come. If you remain conscious of the emotional dynamics of settlement, you will have a happy client who will pay your bill and tell all their friends for years that “they were happy with the result and you were worth every penny.”
Gilbert B. Feibleman is a Fellow of the American Academy of Matrimonial Lawyers and Past-chair of the Oregon Chapter. He has been acknowledged by his peers in “The Best Lawyers in America” since 2001. He is also the past chair of the Oregon State Bar Family and Juvenile Law Section and serves on the board of the Oregon Academy of Divorce Practitioners. He is a frequent speaker and author on matters of divorce and ethics. www.feiblemancase.com
Paul Saucy is a Fellow of the American Academy of Matrimonial Lawyers and the past chair of the Oregon State Bar Family and Juvenile Law Section. He is a frequent speaker and author on matters of divorce. www.youratty.com.
Reprinted with Permission