Let us never negotiate out of fear. But let us never fear to negotiate.
— John F. Kennedy
John Lande is trying to help us “escape the prison of fear” by negotiating settlements that work well for our divorce and family law clients, add value, and provide satisfaction to clients and lawyers alike. Too good to be true? Consider this message and see if it rings true for you:
Parties normally benefit from a process that treats them respectfully, de-escalates conflict, efficiently obtains the information needed to resolve disputes, minimizes legal costs, and promptly produces a result that satisfies their most important goals—or at least provides a result that they can live with. Satisfying your clients’ interests should lead to more referrals, job satisfaction, and income.
Lande is the director of University of Missouri’s LLM program in dispute resolution. He began mediating 30 years ago and has focused much of his efforts over the years on improving mediations and negotiations, designing systems for dispute resolution, and helping lawyers (including divorce and family lawyers) transform their practices. For Lawyering with Planned Early Negotiations: How You Can Get Good Results for Clients and Make Money, Lande supplemented his own wisdom with the interviews of 16 movers and shakers in the world of dispute resolution. As suggested by his title, his guiding principles include principled planning for negotiations, applicable to divorce and family lawyers, and negotiating as early as reasonably possible.
Sooner or later, most lawyers negotiate in their cases. You are likely to spend much of your time negotiating about substantive and procedural issues . . . . The truth is that settling sooner is usually better than later for parties.
LAWYERING WITH PLANNED EARLY NEGOTIATIONS
Lande’s book provides principles, techniques and advice on all matters of negotiation for use in divorce court and family law courts: improving skills; promoting relationships; minimizing conflict; managing problems; achieving outcomes that meet client interests; making money; developing a more enjoyable professional life. His book is centered on civil disputes, and he uses examples from the world of divorce and family law on a regular basis. In addition to negotiation, Lande delves into the areas of the collaborative process, the cooperative approach and the settlement counsel process. Throughout, he delivers methods for striving toward an efficient, effective and enjoyable divorce and family law firm practice.
For Lande, “early” cuts to the core of our mission. He generally encourages divorce and family lawyers to “take the initiative to manage cases from the outset rather than wait to negotiate until late in a negotiation process” and “to take more responsibility for early handling of cases rather than rely on litigation as usual or unplanned late negotiation.”
Lande encourages best practices that many divorce and family law lawyers avoid due to traditional, fear-based notions. These practices are addressed in Lawyering with Planned Early Negotiations and include: developing strong communication and relationship skills; understanding divorce and family law client interests and managing expectations; developing creative fee arrangements with mutually-beneficial incentives; expecting and managing problems that are an inherent part of human relations as all divorce and family lawyers understand; planning the negotiation process with counsel; setting up and conducting planned early negotiations in your divorce and family law cases; and following the rules of ethics.
Lawyering with Planned Early Negotiations includes a chapter on general negotiation techniques that’s a great read for divorce and family lawyers and examines the division between positional negotiation and interest-based negotiation. After the compare-and-contrast discussion, Lande notes:
In practice, negotiation is much more complex than is suggested by either of these conceptions, and many negotiations blend elements of both approaches. Getting trained in and becoming comfortable with these concepts can be very helpful for parties and lawyers in planning and conducting negotiation so that they can consciously adopt elements of either or both approaches.
Lande devotes another chapter to handling problems in negotiation, which is critical in collaborative divorce cases. He highlights the tension between diligent advocacy and being cooperative, and he notes common problems and types of uncooperative behavior often seen in divorce and family law practices. While the discussion surrounds a table with nearly 50 practical techniques for dealing with negotiation problems, accepting the challenges in the normal course is a most useful attitude for all divorce and family lawyers:
Even with the best skills, planning, and implementation, many—perhaps most—negotiations will run into problems. This is normal. . . . [Y]ou should expect this and prepare your client to expect it as well.
The book addresses the use of third-party professionals, including mediators, financial experts and appraisers, mental health professionals, evaluators and adjudicators that is often required in divorce and family law cases. It includes 23 appendixes with practical forms, such as divorce and family law client questionnaires, case assessment guidelines, factors for evaluating possible approaches to dispute resolution, client information sheets, divorce and family law attorney retainer agreements and clauses, letters to clients, checklists for various stages of negotiations, engagement agreements and stipulations, and assessment forms for divorce and family law practices. The bibliography section covers seven different topics, including legal practice, negotiation and problem-solving, collaborative practice, cooperative practice, settlement counsel, dispute system design, and promoting quality of dispute resolution — all useful information to use in your divorce and family law practices.
With the guidance provided in Lawyering with Planned Early Negotiations, divorce and family lawyers can escape the prison of fear, never negotiating out of fear, but never fearing to negotiate. We can treat participants in our divorce and family law cases with respect, deescalate conflict and manage problems, efficiently exchange information, minimize costs, and produce prompt and satisfying results for our divorce and family law clients. Plan early and plan often, my friends.
John Lande, Lawyering with Planned Early Negotiations: How You Can Get Good Results for Clients and Make Money (2011, American Bar Association) $74.95.