After discussing what skills are needed for effective negotiation behavior, the Article then looks more closely at how family lawyers in particular are negotiating. Examining some troubling data, this Article finds that family lawyers appear to be more adversarial and less problem-solving than other types of practitioners - even though their field of law, which involves emotion-laden disputes and ongoing relationships, seems to call for more problem-solving and a less adversarial approach. This article concludes by discussing why this might be so and what the family law bar and family law professors should do in the future to address this problem.
Available at SSRN. As the author points out, perhaps in part this is due to more easy middle class cases going pro se, leaving the messy ones to the divorce lawyers. See Indiana Law Blog post from October 7, 2007, "More often than not, in civil courts these days lawyers are being replaced by their own clients" here. Clearly, though, there is much improvement to be had and better and more CLE in negotiating is needed. Thanks to Geoff Sharp of Mediator blah...blah...for alerting DLJ to the article.
Thanks to Kentucky Cases for giving the "heads up" on Navigating Emotional Roadblocks for Effective Mediation set for April 17, 2007 in Lexington, KY. It is bound to be a fabulous program, featuring Dr. Dan Shapiro, associate director of the Harvard Negotiation Project, and author of Beyond Reason: Listening To Emotions As You Negotiate. The brochure is here.
Settle It Now Negotiation Blog turns to Robert B. Cialdini's Six Rules of Influence That Could Make Or Break Your Next [Commercial] Negotiation. The same principles apply to negotiation in any mediation and this post is excellent. Check it out.
The AAML annual meeting in Chicago was filled with the best yet CLE. I often return from these meetings feeling the material is indispensable; this year was over-the-top fabulous. I am not unaware of the furor in some circles about blogging the content of paid seminars over the internet. Of more concern to me is the possibility that blogging could chill the candid nature of the discourse. From the outset we have decided to post a synopsis of seminar content only with the approval of the speaker.
I did not even ask two of the fine presenters for permission to post about their remarks because it was obvious I would not have time to do their material justice and we may try to land a couple of them in Louisville for our seminar in April. I did ask Robert H. Mnookin, Williston Professor of Law, Harvard Law School; Director Harvard Negotiation Research Project, Chair, Steering Committee, Program on Negotiation, for permission to post about his talk, “Negotiation Techniques by the Expert”, Negotiating in the Shadow of the Law. A first for me, he asked me to email a draft to him and he said he'd email me back if OK. Since he is "in residence" in California for a year and is limited in his opportunity to travel, I will email him a draft and hope he OKs it. No point stepping on toes. It is exactly the negotiation and mediation content that we seem to desperately need in these parts.
P.S. If you think you missed a week of posts after this seminar was over on November 10, you are correct. Sick. Out for an entire week. Now swamped. Clients come first and there is catching up to do. In the spirit of this thankful season, though, doing the best you can is almost always good enough, and now I know to add health to the long list of things for which I am thankful.
One of the reasons I like writing this blawg is that I learn so much. Just as teaching a CLE is the best way to learn a topic thoroughly, researching online resources and posting about them is a discipline that brings much more information across my desk than I would otherwise discover.
A printout of The Threatened Walk Out has been sitting in my inbox waiting to be blogged. As I went to Diana Mercer's website, PeaceTalks, I found another gem, Impasse In Negotiation. In fact, the entire "for professionals" section of the website is useful and the concept of a combo lawyer-therapist mediation service is interesting.
From Victoria Pynchon: "I just noticed this post & agree with what you say. I, too, feel the tension between negotiation and mediation. As my friend and mentor Ken Cloke says, there are 5 responses to conflict -- conflict avoidance, conflict suppression, conflict resolution, conflict transformation, and conflict transcendence. As women, we are trained by the culture to avoid and suppress conflict. This is one of the reasons why we chronically fail to negotiate on our own behalf -- bigger salaries, more time off, better working conditions, etc. In the case of marital dissolution, I wouldn't be surprised to find that protecting the children AND the estranged partner often trumps being willing to engage in tough negotiation tactics that will ensure a better (not worse!) future for the children. I'd be interested in hearing anything you or your readers know about this. For more on women's negotiating styles and reluctances, see http://womenlawnet.blogspot.com."
I went to that site and found this great article from Women Don't Ask: Negotiation and the Gender Divide.
Any takers on letting me and Victoria know what you know about this?
You will notice a new category to this blawg, negotiation. Prior mediation posts have contained negotiation tips, but they are really two separate animals and each deserves attention. Victoria Pynchon's post, Anchoring Redux, jokingly referring to "Kumbya University" brought this in focus for me.
"Although we are often told that only "reasonable" first offers influence negotiation outcomes, I am unaware of the existence of any research to support this dictum. Unfortunately, I suspect that the "reasonable first offer" theory is from the Graduate School of Feeling Good About Ourselves at Kumbya University."
Victoria summarizes Adam Galinsky's studies. He is a Kellogg Graduate School of Management Professor. His conclusion is that people aren't aggressive enough in their opening offers.
"MAKING THE FIRST OFFER
The author found that when a seller makes the first offer, the final settlement price tends to be higher than when the buyer makes the first offer. The amount of the first offer affects the outcome, with more aggressive or extreme first offers leading to a better outcome for the person who made the offer. Initial offers better predict final settlement prices than subsequent concessionary behaviors do.
HOW EXTREME CAN IT BE?
The author's research suggests that first offers should be quite aggressive but not absurdly so. The fear that an aggressive first offer will scare or annoy the other side and perhaps even cause him to walk away in disgust is typically exaggerated. Most negotiators make first offers that are not aggressive enough.
A nonaggressive first offer requires small concessions or a decision to stand by the original demand. Because one of the best predictors of negotiator satisfaction is the number and size of the concessions extracted from an opponent, aggressive first offers give your opponent the satisfaction of extracting significant concessions from you. In that case, you'll not only get a better outcome, but you'll also increase the other side's satisfaction.
For the full text of this article, see "When to Make the First Offer in Negotiations" from Negotiation, July 2004, by Adam D. Galinsky , an assistant professor at Northwestern University's Kellogg Graduate School of Management, in Evanston, Illinois."
Transition now to divorce negotiation. As an advocate you want a better outcome for your client, and increasing the other side's satisfaction has to be a huge plus, especially where the parties have the ongoing responsibility to raise children. Solid negotiation skills benefit the process, but you won't learn those at Kumbya U. Some attorneys, particularly some less experienced. are eager to avoid the blood and guts of not only litigation, but of difficult negotiation. No can do. In the family law arena we see little negotiation CLE. We must step out of our element to learn how to negotiate and keep up with advances in negotiation theory and techniques.