Author: Sharon O'Day

Top Twelve Questions to Ask your Divorce Lawyer

Posted by Sharon O'Day on February 9, 2014 with 1 Comment

“Judge a man by his questions rather than by his answers” Voltaire

I have had many perspective clients come to me for an initial consultations. During these sessions, which often last for more than an hour, the perspective client often wants to tell me a bit about their life and the reason for their divorce and then they want me to explain the law to them and how it applies to their case. At the end of the consultation I ask the perspective client if they have any question for me. The most common questions are “how much will the divorce costs” and “how long will this take”? It is unfortunate that there are rarely any other questions. Getting divorced is an extremely serious and usually stressful endeavor. The relationship you have with your attorney and their approach and expertise in handling your case can make all of the difference in how the case proceeds and the ultimate outcome of your divorce. Remember this is a “job interview” and you are the one hiring the attorney. Here are the top twelve questions to ask any attorney you interview for your divorce.

Are you trained in collaborative law? If you are interested in having a divorce that does not involve litigation and that puts your family’s interest and involvement first, consider a collaborative divorce. However, to have this option available to you and your family, you must first find an attorney that is trained in collaborative practice. Many attorneys are now listing collaborative divorce on their website because they know this is good marketing. It is up to you to make sure they are actually trained and qualified in this area of practice. Even if your case is not going to proceed in a collaborative model, hiring an attorney who is collaboratively trained will help ensure that the attorney understands the principles of problem solving and putting the needs of the family first. If you are not familiar with collaborative law or collaborative divorce, please check out my blog posts on this subject.
Are you Board Certified (or have special certification in your state)? Each state has their own credentials to identify attorneys who have attained a certain level of expertise and specialization in specific areas of the law. Board Certification is the Florida Bar’s “legal expert” status and only 285 family law attorneys have attained these credentials. In order to become Board Certified in Marital & Family Law in Florida, the attorney must have been practicing a minimum of five years with at least 50 percent of their cases involving family law disputes, during the five years prior to the application for certification they must have represented at least 25 clients in contested marital cases with at least seven having been submitted to the judge for decision, they must have completed at least 75 hours of continuing legal education in the area of family law, they must receive a passing grade on a very rigorous examination, and they must satisfy a peer review assessment for ethics and professionalism. While there are many extremely well qualified attorneys that have chosen not to apply for certification, a simple way to screen for qualified attorneys initially is to look for Board Certification when considering what attorney to hire.
Are you active in the family law sections of the local and statewide bar associations? One of the best way to determine if a potential attorney is up to date on what is occurring in the area of family law is to consider their involvement with other attorneys in their area of practice. These meetings are a good way to keep up to date on the latest changes in the law and most recent court decisions. Perhaps more important, these meetings allow the attorneys to network and develop professional relationships. I have had potential clients ask if I am “friends” with the opposing counsel in their case, and seem concerned if I tell them that I have a friendly professional relationship with this person. In fact, the best way to ensure that your case will be handled efficiently and professionally is if the two attorneys can work cooperatively towards a resolution. You should require that any attorney you select is active in their local bar association and collegial with their fellow members of the bar.
What other professional groups are you a member of? There are many local and national groups that family law attorneys can become active in which will further enhance their knowledge, skills, and commitment in family law. These include the Family Law Section of the American Bar Association, the International Academy of Collaborative Professionals, the American Academy of Matrimonial Lawyers, and the Associations of Family and Conciliatory Courts. In addition, you can investigate local organizations that allow for collaboration and networking among family law professionals in the legal, financial and mental health fields. Involvement in these types of organizations by an attorney will demonstrate a varied knowledge in the interrelated disciplines often used in family law cases.
What are the most recent continuing education courses you have taken in marital or family law? Attorneys are required to maintain a certain level of continuing education but you will want to investigate if the attorney has completed these course in the area of family law and if they are up to date on the most recent changes in the law. One of the most rapidly changing area of law has consistently been Family Law and if your attorney has not kept up with the changes they will not be able to properly represent you.
Have there been any changes in the law recently that will affect my case? It is always good to ask specific questions on your case and with this questions you will be able to evaluate how familiar an attorney is with proposed or recent changes to the law that may affect your case.
What would you say is the best strategy for my case? With this question you will be able to evaluate if the attorney considers a litigation strategy, a negotiation strategy or a duel track (litigation and negotiation tracks running simultaneously) to be the best approach to your case. Look for clues that will indicate that the attorney is setting the case in a very adversarial position such as advice to cancel insurance, close bank accounts or credit cards, make significant changes to existing parenting plans, or highly adversarial positions. In some jurisdictions these actions are not allowed, but in others they are permitted but will clearly set the case up to be very adversarial. This is not to say that in certain situations such advice may be necessary, but you must evaluate if your case is appropriate for such positions.
Do you encourage me to speak with my spouse during the time that the case is pending? Some attorneys tell you not to speak with your spouse and to allow all communications about the divorce to go through their office. Others will encourage you to continue to negotiate with your spouse and try to resolve as much as you can without attorney involvement. Based upon the answer to this question you will be able to judge the position of the attorney towards the clients having control over the case. While it is true that in some cases premature negotiations may be harmful to your case and in others there may be legitimate concerns about domestic violence that require limited contact between the parties, you should be cautious about choosing an attorney that insists on a black and white “no contact” rule.
What is your hourly rate? What is your retainer? And how do you bill for my case? These questions should be clearly discussed with the attorney and should be explicitly detailed in the retainer agreement that both you and the attorney sign. You should clearly understand how the initial retainer will be applied in your case and what are the expectations for replenishing the retainer. The last thing you want during this stressful time is to be surprised with a demand for a large retainer replenishment just days before you are scheduled to attend a full day of mediation or trial. Have this conversation in the beginning and keep the lines of communication regarding fees and retainers ongoing throughout the relationship with your attorney.
Who will be working on my case? Will the case be handled predominately by a paralegal or associate? The answer to this questions will be intricately tied to cost as well. If the attorney will handle everything personally then you will be most likely be paying for higher level services. If an associate or paralegal is to complete much of the work, make sure you have an opportunity to meet these professionals and have confidence that you will be able to work with them as well as the attorney.
During what hours can I reach you directly? How long will I have to wait for a return call from you or your office? Again, this question is specific to how the law office works. Understand the office’s policy for return calls, e-mails and emergencies. Make sure your expectations are consistent with the policy of the office.
How can we keep the cost of the divorce down? Divorce can often be a very expensive. However, there are ways for you to keep the cost of the divorce down. My next post will cover this in detail but for now make sure that you follow the directions of the attorney efficiently and discuss with the attorney the strategy of your case to minimize the costs.

You will notice that the questions I do not list are “how much will this divorce cost?”, and “how long will this divorce take?” The total cost of a divorce is impossible to predict and any attorney that tells you exactly how much it will cost if he or she is doing hourly billing is not being honest. Some attorneys will offer a “flat fee” divorce but in my experience these are usually for uncontested preparation of a settlement agreements and if the case results in on-going negotiations over the agreement or becomes contested then the costs will rise. If you decide to go with a flat fee divorce make sure there will not be added costs for additional hours spent negotiating. Similarly, “how long will this take” is not something an attorney has complete control over. If you have an uncontested divorce with a simple settlement agreement signed by both parties the attorney may be able to predict the time until a final judgment is issued. However, your attorney cannot control the level of cooperation of the opposing side nor the delays that may exist in the court’s calendar. This is one reason why the collaborative approach is often best, as it allows the parties to work cooperatively towards an appropriate resolution without the delays caused by the court system or uncooperative litigants.

Collaborative Law: What It Is & Why I Should Care?

Posted by Sharon O'Day on January 13, 2014 with 1 Comment

Many family law attorneys have heard the buzz about “collaborative law.” Other lawyers may not have heard much if anything about this new process. Many circuits in Florida now have Administrative Orders defining collaborative law, and the Florida Bar is working to establish statewide rules which will govern the process. Therefore, this is a good time to become conversant with collaborative law, and to learn how it might apply to your practice area.

Collaborative law has been around for twenty years nationally but only recently started reaching us locally in a big way. Where the relationship of the parties is an important element of the legal dispute and where there are emotional drivers, the lawyer should consider a collaborative approach as an appropriate method of dispute resolution. An obvious choice for using a collaborative approach is a family law case involving minor children. When minor children are involved, the parties will have to maintain a relationship if only to co-parent their children. Several studies establish that children who have been the subject of high conflict divorces are at significantly greater risk of experiencing both short and long term emotional and psychological issues. The sooner divorcing parents can settle their disputes and transition to co-parenting, the sooner they can focus their combined efforts on helping their children adjust to the new family dynamic.

Divorces with minor children are but one of the types of legal matter that may benefit from a collaborative approach. Probate cases, elder law guardianships, family-owned or closely-held business dissolutions, and other legal cases involving people with long term ties also may benefit from using a collaborative model.

The collaborative model removes the dispute from the entire court system. A collaborative team is established, consisting of a lawyer for each participant, and a collaborative facilitator. In many cases, the team also might include a neutral financial expert and a neutral mental health expert. Using a divorce as an example, each party would have a specially trained collaborative attorney, led by a collaborative facilitator who acts as the neutral, focal point of the process and who assures that the dispute proceeds in an orderly and respectful manner. This person is often, also, the mental health expert for the team. The neutral mental health expert will assist the parties’ with their emotional needs and, if relevant to the case, address parenting issues with the parties. If there are financial issues, the parties may hire one financial expert to work with them to prepare their financial affidavits and address other financial aspects of the case.

The primary difference between a collaborative case and a litigated case is that, in collaborative, the parties and the professional team all sign a contract agreeing that they will work together to resolve their issues without litigation. The parties make an agreement to fully and honestly disclosure information related to the case. There is no “hide and seek” or ambushing in a collaborative case. Additionally, participants agree to be respectful of each other and avoid all disparaging comments. If there are minor children involved, the parties agree to insulate them from the proceedings and to otherwise work together to minimize the impact on the children.

The agreement specifically states that there will be no litigation during the collaborative process. The only way that the case will proceed to litigation is if the parties withdraw from the process. If this happens, then all of the professionals on the team must withdraw and cannot be involved in a subsequent, litigated case. This usually leads many professionals to decide that this collaborative work is not for them. While the objection is understandable, the attorney is well-advised to consider collaborative practice as one of the tools in the attorney’s toolbox nonetheless. The possible withdraw of the attorneys is the “stick” that keeps everyone honest and at the table, and prevents the posturing that many of us have come to expect in a litigated matter.

In collaborative, no one threatens to file pleadings to gain advantage. Instead, the parties look for win-win solutions which can be reduced to an agreement. Professionals must go through separate training to work in a collaborative case. One is trained to undergo a “paradigm shift,” meaning that one learns to look at the dispute from a solution-oriented approach rather than from a “what is my best day in court” approach. The professionals are bound to respect that the parties have agreed that they want to find solutions via a collaborative process, and it is the professionals’ job to get them there.

.Over ninety percent of collaborative cases settle, and such a settlement may be maintained privately, which is another advantage. This is why celebrities such as T. Boone Pickens, Roy Disney, and Arnold Schwarzenegger have all chosen collaborative divorce over having their divorces litigated.

If you are interested in learning more about collaborative law or becoming trained as a collaborative attorney, there is a training scheduled in Tampa, March 20-22, 2014. Please contact the Family Court Professional Collaborative for more information.

Step Four: Establish the Ground Rules

Posted by Sharon O'Day on November 13, 2013 with 0 Comment

You have to learn the rules of the game. And then you have to play better than anyone else. Albert Einstein

Welcome back. If you have taken the first three steps you are now ready to enter into the negotiations arena. You have done your homework and are therefore well prepared. If the other side of the negotiations has not completed the first three steps then I can guarantee that you will be in a better, more confident position when you begin the formal negotiations. You will know not only what you hope to realize from the negotiations but also your underlying reasons for participating. You will know when it is best to walk away from the negotiations and how far the other side can go before they feel they must walk away. You will have determined a fair and reasonable value for any material items that are on the table and assessed the strengths and weaknesses of your case if this is a litigation matter. You have a strategy and understand the possible outcomes of the negotiations.

Now, the final step before anybody makes the first offer is to be sure that everyone is on the same page about the process. This may be a very easy step in the case of informal negotiations but it may take on huge significance in the case of more complicated matters. As negotiations become more complex, with a greater number of issues on the agenda and more parties seated at the table, the necessity for clearly defined rules becomes more important. Without clearly defined rules the negotiations can devolve into chaos or, worse, fail to take place altogether. You can easily imagine how hard it would be to participate in a six party negotiation with each party represented by zealous advocates but no agreement as to the rules defining the process. However in simple daily negotiations the rules may be set by regular custom and practice. If you are discussing where the family should go for dinner the ground rules may be simple: that everyone has a chance to make a suggestion, no one raises their voice, the options will be discussed and the majority wins.

In the case of more significant negotiations that occur in our daily lives, such as the purchase of a home, the rules become more formal and inflexible. The homeowner lists the property for sale at a given price, the buyer makes an offer to purchase the home perhaps with some specific terms regarding allowances or closing times, the homeowner makes a counter offer and the negotiations continue in this back and forth manner until a deal is made. The final agreement is then formalized into a purchase contract for the property and a closing for the sale is scheduled. While the terms of the sale may be more complicated and the process involve more people including the seller, her agent, the buyer and his agent, the overall rules of the process are fairly straight forward.

One form of negotiations that is becoming more popular in divorces and other legal matters is the use of collaborative representation. This is a process whereby the parties to a litigation agree to each hire a specially trained collaborative attorney and then all other professionals (accountants, appraisers, therapists) will be hired jointly as part of the team. In collaborative cases the initial meeting of the parties and the collaborative professionals will most likely be a time to establish the rules of the negotiations. In such cases the rules are commonly referred to as the collaborative agreement. This agreement will determine who will be included on the professional team, how the professionals will be paid, who will be the facilitator of the meetings, how often meetings will be held, the rules of confidentiality, what happens if the process breaks down and many other finer details of the collaborative law process. In my experience having a carefully written and considered collaborative agreement provides everyone with a clear understanding of the procedure and is critical to the success of the negotiations that are to follow.

If you are involved in a complicated law suit with a formal mediation process then there are several issues that must be decided before the mediation begins. You may have to decide who will be the mediator, where the mediation will take place, who will pay the mediator, what will be on the agenda of the mediation, will the mediation be subject to the local rules in your jurisdiction and if not what rules of confidentiality and neutrality will apply, can anyone other than the parties attend the mediation, and what happens if the person with ultimate authority to make a final deal is not present at the mediation. Usually these rules of mediation are established by local procedure or by the parties when the mediator is selected. If the parties are unrepresented the mediator may use the first meeting to reach an agreement by the parties as to the rules that will apply to the process. In some particularly litigious cases it is a good idea to have the professionals meet with the mediator prior to the initial session to make sure that everyone has accepted the terms of the mediation and are prepared to proceed with the negotiations at the initial session.

In particularly complicated matters such as international, diplomatic negotiations the rules of the process can become a negotiation unto themselves. In the case of the negotiations for the termination of the Vietnam War the parties spent months arguing over the size and shape of the table to be used. While this may be an extreme example of negotiations over process, there are many other times when the rules for the negotiations have taken on a life of their own. As a mediator I have had more than a few mediations cancelled or delayed because, at the last minute, someone tried to change the rules and the other side objected. I have had cases where, just before the mediation was to begin, one side has said they would only attend if the other side agreed to pay for the mediation or one party wanted to bring a relative when the other side had not previously agreed. Such last minute surprises are never helpful as they set a tone of mistrust and increase hostility before the process has even started. It is better, if possible, to discuss and agree to the “rules” prior to the onset of the negotiations.

If you have questions about the general process of mediation, please refer to my web site (www.odayresolutions.com) for examples of some of the standard rules used in Court Ordered mediations in my area. These may be different in your area but they will at least provide you with some areas to discuss with the mediator or your counsel before the mediation is set to begin.

Taking the Third Step

Posted by Sharon O'Day on November 10, 2013 with 0 Comment

Many a man had taken the first step. With every additional step you enhance immensely the value of your first.

Ralph Waldo Emerson

So now it is time to take the third step in preparing for negotiations. You have identified the issues, positions and interests of your situation in the first step. You have brainstormed possible options to resolve the situation in the second step. Now you must roll up your sleeves and dig into some research for this third step. In my experience this is when many people become overwhelmed and try to move right into the negotiations. This is a mistake, because the information that you gather in the research step will allow you to properly evaluate your options and develop your strategy for negotiations. In today’s technology age almost anything can be researched fairly simply online. We will look at some of the simple ways to find answers and evaluate options through some basic research, most of which is free and or inexpensive.

In our example in article two we considered a family looking for solutions if Mom is having trouble with driving. Below is a chart of some of the research tools that can be used to evaluate each of the options that we identified:

Options to Consider / Google terms	Research tools to find answers
Hire a driver	Google taxi services in your area Google “drivers for seniors” for local free or low cost services
Find ways to make driving safer for senior	www.aarp.org www.aaa.org www.safeandmobileseniors.org
We can drive for her	www.ourfamilywizard.com provides calendars to keep track of family activities such as doctor appointments and plan who will drive
She can take the bus	Google local bus routes
She can travel with friends	Talk to her companions and friends to see if other’s can drive. This step in the research may have to wait until after you have spoken to Mom if you do not know her companions well.
We can have other’s bring things she needs to her	www.mowaa.org google in-home companions or elder companions
She could move to a community with more local services or transportation	Google independent living in your area

If you are facing a negotiation over an offer for a new job, you would want to research similar jobs to the one you have applied for. You want to determine what the average salary is in your area. You may do this by researching market surveys online or by speaking to friends or mentors in the area of the employment you are considering. You want to look for ranges of starting salaries as well as other benefits that you have determined are important on your options list.

If you are involved in negotiations to resolve a legal case such as a divorce the research may become more complex. You have three general areas to research before you enter into negotiations. These are (1) the basic facts of your case such as the value of your assets and school calendars to develop parenting plans (2) the law as it applies to your case and (3) the costs involved in litigation if the case does not settle. The first area is conducted the same way as the research outlined above. You use the internet to research each option you have developed.

In some cases the information that you need to assess possible solutions may not be in your control but may be in the control of the other party to the litigation. This is when attorneys use one of the most powerful tools in their tool box to obtain the information needed. This type of research is called “discovery”. We can do this research through depositions (asking the other side and witnesses questions while they are under oath and in front of a court reporter), interrogatories (similar to depositions but asking the other side or witnesses questions in writing and asking them to sign the answers under oath) and “requests to produce” (asking the other side to produce documents that they may have in their control). We may also engage experts such as appraisers, accountants, vocational experts, mental health experts and medical experts to pull together the information and to evaluate our case to have a better understanding of the facts for settlement or trial. If you are involved in a legal dispute, you have to decide if you have enough information about your case and the other side’s case to complete the mediation before the discovery is completed. Many times it is possible to know enough to evaluate your options without all of these formal discovery methods, although this discovery may critical to presenting your case at trial.

Another area that you must be prepared for in the case of legal disputes is an understanding of how the law will be applied to the facts of your case. Attorneys are specially trained in conducting legal research and evaluating the likelihood of success in specific cases. It is always advantageous to be familiar with the law as it applies to your case, in order to know what your “best day” and “worst day” in court could be. This gives you structure and parameters to your negotiations that would not otherwise be present. It is important to remember that an understanding of the law does not necessarily confine you to the remedies that are provided for by the law. There have been countless times that I have represented clients who wanted a specific outcome in a case and I had to tell them that their preferred “option” to resolve the case was not possible under the law. For instance the parents may agree that paying for college education for their child is important even though the law in Florida only requires support of children through eighteen years of age. While the Judge could not order this solution the parties may, through negotiations agree to include this in their settlement agreement.

Finally, you should evaluate the costs associated with selecting different options. In order to evaluate how efficient an option is in meeting your needs you must be able to examine the costs associated with the option. In the case of a legal dispute such as divorce you should consider how much the trial is going to cost you if you do not settle. You must have a frank and honest discussion with your attorney to determine the costs of litigation. While attorneys can rarely give a guarantee about the costs as these are often determined by the facts of each situation and the actions of the other party, they can estimate how much is necessary for specific activities such as a full day deposition or the retainer for an expert. As indicated above, the costs of formal discovery can be quite high. While you may be able to mediate a resolution after conducting your own research on the options you have developed, your attorney will be able to explain how the rules of evidence may require more costly discovery to actually prove your case in trail.

In addition you should consider the costs of alternatives to settlement in terms of time missed from work to attend hearings, depositions, and trial. Another “cost” that is often overlooked in legal disputes is the anxiety of remaining uncertain about the outcome and living in the adversarial morass of litigation. While you may not be able to put a dollar figure on it, there is certainly an emotional and psychological benefit to reaching a resolution and being able to move on. This benefit may have a higher value than any of the costs associated with agreeing to certain terms of settlement.

As you can see, the research step in negotiation preparation requires time and a commitment. The more thorough a party is in conducting the research the more prepared they are when entering into their negotiations. I have too often seen mediations be delayed because the parties could not agree upon the value of an asset or the feasibility of a rehabilitation plan for a party. The time spent on this step can expand possible options, organize strategies for resolution and save time in the actual negotiations phase. Knowledge is power. By doing your homework you are in a more powerful position as you enter the next step of negotiations.

For more tools for research in specific areas please visit my website, www.odayresolutions.com.

Taking the Second Step

Posted by Sharon O'Day on November 2, 2013 with 0 Comment

“It is better to have enough ideas for some of them to be wrong, than to be always right by having no ideas at all.” Edward de Bono

So, now you have taken the first step in preparing for a negotiation: you have identified the issues that need to be addressed and the positions and interests of the parties involved. You are still in the preparation phase but now you are ready for step two. This is the fun step, but don’t get carried away. Now you are going to think creatively. We mediators like to say, “think outside of the box”. You are going to identify the possibilities for solutions to the issues.

To do this you consider ways to meet the interests that you identified in step one. Let’s consider an example of a problem that faces many families: The adult children are worried about mom continuing to drive because she has some significant physical limitations and had a traffic accident last week. Your sibling called you up and said “We need to talk to mom about taking away her keys, she shouldn’t be driving.” (You know by “we” your sibling really meant “you” need to talk to mom.) You agree that there may be a problem but you also know that Mom will resist any effort to stop her from driving. You have identified the issue: Mom’s driving. You have identified the children’s position: Mom shouldn’t drive any longer. And you have identified Mom’s position: I can continue to drive without a problem. You have also identified the interests: Mom needs (1) to be safe and (2) continue to have an active and independent lifestyle. Now, for step two, you want to consider options that will allow Mom to still live independently and allow her to safely get around town. You may consider options such as (1) we can hire drivers, (2) we can see if there are ways to improve her safety when she does drive, (3) we can drive for her (4) she can take a bus to her favorite spots, (5) she can travel with neighbors and friends to her favorite outings, (5) we can have delivery bring things to her that she needs (6) she could move to a residence that has more activities “in house” and limits her need to drive. Are there any other options to meet the identified interests?

This is the brainstorming time. The more input you can have the better. Sometimes it is good to talk to friends, family, mentors, and trusted advisers so long as you can limit the talk to brainstorming options and not just arguing over positions. You do not want to take anything off the table when you look for options to solve the issues. Often it is good to write down the list as fast as you can without stopping to evaluate each idea. This opens up the creative juices and allows for limitless thinking. In the next step you will research if any of the options are possible but here you just want to consider as many options as you can think of. With research you will be able to evaluate the costs involved to implement any of the options. As you do the research in phase three you may develop new options or find that some of the choices need to be reworked or eliminated altogether. For now though, do not limit yourself to what you think is possible or to “good” ideas.

This is also the time to look at what would happen if you don’t reach a negotiated resolution to the situation. In negotiation parlance this is called your “Best Alternative to a Negotiated Agreement” or BATNA. This theory was developed by Roger Fisher and William Ury in the book Getting to Yes: Negotiating Agreement Without Giving In (Penguin Books, 1981) and is used to train the top negotiators at Harvard. To consider your BATNA, you consider the options available to you if you walk away from the negotiations. In the situation of Mom continuing to drive, the answer may be that if the family cannot reach an agreement then no action will be taken and Mom may have another more severe accident. In the case of a negotiation for a job, the answer to your BATNA may be that you have to continue to look for employment (a weak option) or you may have the option to take another job offer (a stronger option). As an attorney we look at this question as “what is your best day in court” or what is the most favorable outcome if you take the case to trial. In legal negotiations we always consider the possible outcomes of going to court as a possible outcome if the case does not settle. In the next step we will look at what this costs in terms of time, money and anxiety. For now, you need only consider that one option to solve the problem may be a trial. The research phase in step three is where we evaluate the BATNAs.

You also want to consider the other parties possible outcomes if there is no negotiated settlement. Often the other party’s best alternative to settling may be your “Worst Alternative to a Negotiated Agreement” that is, you guessed it, your WATNA. (Also developed by our friends at Harvard.) In legal parlance this is “your worst day in court”. You should consider this alternative as well.

So, now you have completed your second phase by looking for all options that you may have to resolve the issues that you have identified and to meet the interests of everyone involved. As you continue on the path of negotiations you may need to come back to this step. It is important to remember that negotiations are a fluid process not a one way road. While you are constantly heading in the right direction you are not just checking things off the list and moving on. In step three you will evaluate the options you developed. Once you actually start the negotiations with the other side you may come back to all of the options you developed and re-evaluate them. But for now, by listing as many options for resolution as you possibly can, you have prepared to research the effectiveness of each option. This then allows you to be in a stronger position to open negotiations with a goal of finding solutions rather than perpetuating conflict.

Taking the First Step in Negotiations

Posted by Sharon O'Day on October 30, 2013 with 1 Comment

Have a bias toward action – let’s see something happen now. You can break that big plan into small steps and take the first step right away.

Indira Gandhi

For better or worse, we each have to negotiate all the time. Let’s say you have a problem that needs to be resolved. You may have a disagreement with your sibling about how to care for Dad, or a conflict with your business partner about the direction the business should take. You know there is a conflict and you want to resolve it before it gets worse. Or, perhaps it is not a problem but rather an opportunity. You have applied for a job and must meet with your prospective employer to determine what the terms of your employment will include. Or, perhaps you want to buy a car or a house. You know you have to bargain but the idea fills you with fear. In all of these situations your best option is to negotiate a strong deal. Very few of us have ever had a real class in negotiations so the mere thought of bargaining makes us a nervous. And yet we are faced with the opportunity (or saddled with the burden) of negotiating on a regular basis. This series of articles looks at the steps to take to effectively negotiate in any situation.

We have identified the six steps to effective negotiation: (1) identify the interests and positions, (2) Consider both side’s options to resolve the issues, (3) Research everything, (4) Establish the ground rules, (5) Bargain: Look for overlap and ways to resolve the issues that best meet the most concerns of the parties, and (6) Memorialize the agreement. Each of these steps requires a certain amount of work and skill. But with the right amount of effort you can be prepared to effectively negotiate in any situation.

The first step is to understand the difference between positions and interests and then to identify each in your situation. The easiest way to consider interests and positions is that the positions are the “what you want” of the problem and the interests are the “why you want it”. Positions are usually easy to identify. I have represented many people in divorces and it is not unusual in the first meeting to hear “I want the kids to live with me most of the time, I want my ex to pay me child support, I want alimony of at least $5,000 per month and I should get half of all the stuff. You can do that, right?” In a job negotiation the prospective employee may be thinking “I want $55,000 per year, good health insurance and a 401(k)”. The seller of a house may be thinking “I must get at least $300,000 for this house. That’s my bottom line.” All of these are the “positions” of the people entering the negotiations. The “what” I want. Positions are usually stated in “black and white”. They are often stated as “bottom line” places. And because they are stated as positions they do not allow flexibility. Either I get what I want or I don’t do the deal.

Contrast this with interests. Interests require you to look at “why” you want “what” you want. In the case of my divorce clients, I would often dig deeper to learn my client’s real interests. These may be a fast and amicable divorce with minimal disruption for the children and security for the family at the end. The “why” question will get to the bottom of the positions to find the interests. If I ask a parent in a mediation “why should the children live with you most of the time” I may find that it is because the parent perceives that they were the hands on parent that always helped with the homework and attended all of the school functions. I might also learn that this was one of the sources of anxiety in the family and that the parent would love it if their spouse would become more involved in the children’s lives. We may now have a new way to resolve the issue of parenting time if the other parent agrees to become more involved in the daily parenting activities. Similarly, with the negotiations for a new job, when you consider the “why” question for the position stated above, it may become clear that the reason that the person set the salary where they did was because they had parenting responsibilities that required them to pay a care giver for the afternoons, but a flexible work schedule may allow them to take a slightly lower salary while still meeting the needs of their family.

Knowing your “whys” is often the most difficult but critical part of the negotiation process. It is difficult because we become emotionally invested in our “whats”, that is our positions. It is easier to think in black and white. But to quote the title of a strangely popular book there may be “50 shades of gray”. It is by answering our “why” questions that we become open to the flow of negotiation and see opportunities that exist outside of our positions but that will meet our needs. The answer to the why questions, the identification of our true interests, allows us to explore possibilities that meet our needs in ways that we may not have considered. It also gives a justification to our positions that are truly immovable.

It is not only important to know our own interests but also to become familiar with the other sides interests. For the seller of a house the bottom line they want for the house is $300,000 (their position) and the buyer may not want to spend a dime over $270,000 (their position). This would normally mean the end results was “no deal”. But a savvy real estate agent may be able to structure a deal that could work for these two people if the agent is aware of the “whys” for each side. If we know that the seller has the ability to take back the mortgage on the property and this will provide them with a stream of income that they wouldn’t otherwise have and the seller is willing to pay a bit more on the price for favorable terms on a mortgage that they wouldn’t otherwise qualify for than there may be middle ground. Or perhaps the buyer is willing to pay more if the house has a new roof and the buyer has connections that will allow them to make some repairs and replace the roof at a reasonable cost. These solutions may meet the buyer and sellers interests more than the intractable positions they originally took.

The “whys” in negotiations are often our primal emotions: security, safety, trust, happiness. When someone says that they have a bottom line dollar number and will not take/offer a dime more/less, this is rarely the case. When I still litigated divorces, I often entered negotiations where my client had said something like “I will not accept a dime less than $3,000 per month in alimony”. But after hours of negotiations when the “final” offer comes from the other side that they will settle for $2,200 per month in alimony but will agree to more than half of the assets coming to my client, and pay for the child’s private school so long as they receive the tax deduction for the child, suddenly a deal is done. That is because both sides had their interests (the whys) met by the deal. Once we moved from a specific number to look at the bigger picture of tax consequences, special opportunities for the children, and overall family security we were able to meet the needs of everyone.

So, if you are facing a negotiation take a moment to plan. Identify what the issues are that must be addressed. Set an agenda for the negotiations. Then think a bit about what you want and why you want it. Next think about what the other side most likely wants and why they want it. You have now identified the issues, the positions and the interests. The first step is done and you are ready to start to explore the possible resolutions as part of step two.

The Six Steps to Negotiations

Posted by Sharon O'Day on October 28, 2013 with 0 Comment

“Life is a series of steps. Things are done gradually. Once in a while there is a giant step, but most of the time we are taking small, seemingly insignificant steps on the stairway of life” Ralph Ransom, Artist & Author

Every negotiation follows certain simple steps. We are often not even aware that we are following the steps. Sometimes we may skip a step but I would say this is at our own peril as the side that avoids or ignores a step is at a complete disadvantage. When we were young and in a hurry we may try to climb steps two at a time or jump down steps in even longer leaps. But an adult would always admonish us that it was not safe to miss steps and that we should be careful in using the steps as laid out for us.

In this series of articles I am going to break down each of the critical steps to a negotiation. These steps apply equally to a negotiation that is facilitated by a mediator and to any negotiation that you find yourself in on a daily basis. As a trained mediator I see many parties come to the mediation unprepared and without having gone through these steps. This is a sure sign that the mediation is going to be more difficult and may very well result in an impasse. This is so unfortunate because a little preparation could have saved the time and expense of the mediation and resulted in a signed agreement.

The steps in their simplest form are as follows:

Identify the issues and the positions.
Consider both side’s options to resolve the issues
Research everything
Establish the ground rules
Bargain: Look for overlap and ways to resolve the issues that best meet the most concerns of the parties
Memorialize the agreement

I will discuss each of these steps in some detail in future posts. For a simple “negotiation” like deciding on a dinner menu for the family or determining what time is curfew for your teenager, each step may be simple and require less than a minute. But for complicated issues like a divorce, the dissolution of a family business or resolving an international crisis each step may need painstaking attention and take days or weeks before the parties are ready to move on to the next step. No matter what type of negotiation you find yourself in, a thorough understand of these steps and a willingness to commit the time necessary for each will result in a better likelihood of reaching an agreement and walking away with a deal that each side can live with.