Category: Negotiation

2023 Case Law Update

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Once again I was invited to present the Annual Case Law Update to this years Family Court Professional Coalition (FCPC) Annual Conference. It is my great pleasure to work with this organization and serve on their Board of Directors in order to help improve the Family Court system in my local area. It is also an annual highlight to present this update of all legal cases involving family law decided in the last year from the Florida appellate courts. While I do not litigate, it remains important to stay up to date on the current law in order to assist my clients in reaching the best resolution to their cases. To view the update click here.

Expanding Your Options Can Produce Great Results!

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shorty head

Once You have had a wonderful dog, a life without one, is a life diminished.  Dean Koontz

Soon after my last dog, Sally Mae Ride Astronaut Girl Dog, (my family believes that dogs with longer names seem to have more importance) passed away suddenly from cancer, my daughter and I decided to visit the local animal shelter to find a new dog to join our family.  Before we left home I made a list of my priorities for the new dog: It would be smaller than Sally who was a Gordon Setter mix, it would definitely have short hair (dear Sally had left piles of her hair around my house during her life), and it would be female as they are calmer and easier to train (sorry guys, but you know it is true).  With my relatively short list in hand, we traveled to Bishop Animal Shelter in Bradenton.  As soon as we got there and started to walk through the aisles of the kennel, my heart was touched by one dog that was so happy looking despite the small conditions allotted to each dog.  I asked my daughter how she felt about the dog and she was also immediately drawn to the dog’s bright eyes, expressive face and wagging tail.  We asked to meet the dog and right away I knew this was the one.  We named the dog Shorty and took him home.  So, how did I do with my list of priorities?  Shorty was a one year old male Rottweiler Shar Pei mix bread (we call him a Ra-pei) and weighs about 65 pounds.  Okay, he has short hair but pretty much failed on all other must-have criteria.  But we love him!

So, what does this story have to do with negotiations and mediation?  Actually a lot!  Very often I see people come to negotiations with a checklist and if they don’t get everything on their list they will not agree to anything.  They may have very good reasons for the things on the list and they believe that without attaining each of their goals the negotiations will be a failure and they will leave.  In negotiation parlance we call this positional bargaining.  This means a person takes a position and will not move from it.  They are not open to options that may meet underlying needs or desires if it is not a complete match to their pre-decided list.  Had I approached the search for a new dog this way, I would have walked into the shelter and told the clerk at the front desk my list: female, small, calm, short haired.  The clerk would have evaluated my list and told me if there were any dogs that met my priorities and if not I would have left.  Instead, the clerk invited me to walk through all of the kennels and see if I found the right dog.  By exploring options, I found the right dog for my family, now named Einstein Short Tail Entomologist Guy Dog (I won’t explain this name but there is a lot of irony in his name, which is obvious when you meet this bug hunter).  I was open to the possibilities outside my initial position and because of this we have a happy, funny boy in our family that has brought us years of joy and security.  My interests were met by this happy dog who fits in with our family, even if he does not exactly match my initial position.  So, when you enter into negotiations, make your list of goals, prioritize them in importance (short hair was clearly a deal breaker for me) and then be open to the possibility that there may be other ways to achieve happiness that you have not thought of yet.

 

Women Bring Something Different to Negotiations

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swanee hunt Swanee Hunt, Former Ambassador to Austria

I was driving back from the grocery store this morning and listening to CNN’s Fareed Zakaria GPS show.  He had a group discussion that made me wait for the conclusion of the segment before taking my groceries into the house.  The topic was international peace negotiations with the lead guest being our former Ambassador to Austria Swanee Hunt.  She was discussing a peace negotiation that she had been involved with to bring peace to the Balkans.  I was particularly interested in this as I was working with the UNHCR in Croatia during this same time.  The negotiations had been very difficult and complicated.  When the day came to sign the agreement finally reached she said she looked out at the room filled with men in grey suits and it hit her.  Perhaps it was the lack of women at the table that made the negotiations difficult.  When she then discussed with women around the world why they were not included she was told that the warlords did not want the women there because they “would be more likely to compromise”.  After all the men with the guns had a specific agenda and they wanted to negotiate from a place of power and the women had different priorities.

In fact, the women did have different priorities, and these included peace, security for their children, and the ability to provide their family with stability, education and health care.  This is not to say that many men don’t also have these as priorities for their society but the political and military men who were negotiating for land, rights to assets and power were not the men that may have these priorities.  The results are that the international negotiations are too often inclusive of only one group, the ones with the guns that benefit from war or at least “power negotiations”.  As was discussed in the piece on GPS, this too often make negotiations difficult and the agreements reached tenuous.

The lessons to be learned from this piece struck me hard.  Almost all of the negotiations that I am involved in on a daily basis do include women as they mostly involve family negotiations and mediation.  However, the participants may approach the negotiation priorities very differently.  It is important to ensure that everyone is clear on the goals of a lasting agreement.  Also, it is important to ensure that all parties affected by the agreement have a voice at the table.  The children are usually not included in the adult negotiations of divorce and sometimes the elder suffering severe dementia or health problems are not included in negotiations that seek to resolve their situation.  However, it is often helpful to have a picture of these “parties” present at the negotiations to keep them “present” while we discuss their priorities.  In more expansive societal negotiations, whether it be community relations, politics or international peace negotiations, it is critical that we include representatives from all aspects of the society at the table.

For more information on Swanee Hunt and her programs to include women on an international scale, please visit her website https://www.swaneehunt.com/

A Cautionary Tail

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Lawsuit: A machine which you go into as a pig and come out of as a sausage.

Ambrose Bierce

The front page of the Sunday Sarasota Herald-Tribune was filled with an extremely sad story entitled Love & Lawsuits, by Barbara Peters-Smith.  (http://www.heraldtribune.com/article/20140406/ARTICLE/140409778/2416/NEWS?Title=First-came-love-Then-the-litigation-)  The subtitle says it is the story of “a Longboat Key couple found true love late in life.  But what might have been a happy ending has instead morphed into an epic lawsuit with millions of dollars on the line, and long, bitter legal arguments made mostly by strangers.”    The story covers much of the front page and two full interior pages and I highly recommend that it be read in full to have a complete understanding of the facts and issues.  For purposes of this brief post, the important facts are that after many happy years of marriage, allegations have been made that the elderly couple suffered from dementia and that relatives began to take advantage of them financially.  Both the Husband and Wife had attained some level of wealth, although the Wife was substantially better off than the Husband.  The allegations are that the Husband’s family members then began to take advantage of the couple and had transferred millions of dollars from the Wife, through the Husband to the Husband’s relatives.

For purposes of this post, the cautionary tail that I see is how the internal problems of this blended family have turned into a very public and very expensive legal battle, destroying any hope that the couple had to live out their final years in happiness together.  The family members have now divided the couple and each lives near relatives but apart from each other.

On one side it is easy to say that this couple had done everything right as befitting their wealth.  They had a prenuptial agreement and estate planning documents.  They reviewed and updated these documents as needed.  However, the allegations are that by 2005 the Wife and perhaps the Husband were suffering from early stages of dementia and some relatives began to take advantage of them.  My first concern from this is why did it then take six years for any relative to realize what was going on and intervene.  I do not mean this to be as judgmental as this may sound.  I realize that every individual and every family is different in how they address financial issues, but in this case perhaps the long costly court battles could have been avoided had there been more direct involvement and conversations when concerns were first noticed of the couple’s failing health.

My second concern is that mediation did not take place in this case until after it had been pending for over two and half years.  The mediator in this case is extremely professional and one of the best around.  Unfortunately the case did not settle.  The timing of a mediation is a careful balancing act.  Often if the mediation is set too early the parties may not understand the full ramifications of the case and be unwilling to settle.  However, if it is set too late, after each side has become cemented in their positions and invested vast amounts of money in the litigation, they may be too entrenched to consider settlement.  However, mediation can begin early and continue throughout litigation.  Much of the issues provided to the judge can be resolved through careful mediation.  There does not appear to be other forms of alternative dispute resolution services employed in this case.  The end result is a legal battle played out in public and the concerns for the elderly couple seems to have been lost in the process.

The law suite was filed in May 2011 and now has 1,675 docket entries (that is documents filed, orders issues, or notices of court hearings, etc.)  There are fifteen lawyers involved in representing parties to this case.  The case will have taken over three years from start to finish and that does not include possible appeals from the final decision.  Two of the defendants have died and one of the previous attorneys is now allegedly suffering from dementia as well.  Ours is a wonderful legal system but this case shines a bright light on the deficiencies of the system.  I have seen divorces take on a life of their own and spiral out of control.  It appears that this very sad guardianship case has done the same.

Things a Judge Cannot Do…

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sonia sotomayorJudges can’t rely on what’s in their heart. They don’t determine the law. Congress makes the law. The job of a judge is to apply the law.  Justice Sonia Sotomayor

 

 

 

Throughout the years that I have been practicing in Family Law, I have had a few clients who refused to negotiate and would instead demand to have “their day in court”.  Their theory was always that, once the judge heard their story, the judge would be so moved that my client would get whatever it was they wanted.  I often had to inform my clients that, no matter how moving their story was, the judge just could not give them what they wanted.  In most cases this was because the law did not provide the relief they expected or thought was fair.  Here are a few of the things that the law in Florida does not provide for:

Visitation or “shared parenting” of pets.  Under Florida law, Fluffy is just a piece of property to be distributed to one party or the other.  I love my dog and I love my cat and I have even loved my daughter’s snake, rats and other various creatures that have filled our house with love.  If I found myself in a situation of a divorce, I would want to make sure that my daughter and I could continue to have regular interaction with our pets (although I admit, some more than others).  However, under the equitable distribution laws, the pet is given a value and that value is placed in the column of the party receiving the beloved pet.  The judge simply cannot order that the other party have visitation or any other “contact” with the pet after it is “distributed”.

College tuition or child support past high school.  Except in the most extreme situations of continued dependency, Florida law provides that child support ends when the child turns 18 years of age unless then child remains enrolled in high school with an expectation of graduation prior to their 19th birthday.  Even if the child remains enrolled in high school but will not graduate until after their 19th birthday, child support does not normally continue.  This is different in some other states, but Florida does not provide for college support or support past 18 years of age in most cases.

Continued joint ownership of a family business.  Florida law states that once you get divorced the idea is to separate such things as ownership of property and businesses.  Therefore, if the parties are not in agreement, the court will not order that they remain co-owners of the family business.  This means that one party is more than likely going to have to buy out the other party.

This is just a sample.  There are many more examples of things a judge cannot order because the law does not provide the option.  There may be exceptions to any one of these rules (after all, every good rule has an exception).  However, in most cases, Judges are not going to create new law or make a special exception for your family.  The one way to ensure that you achieve these and other creative solutions that meet your family’s needs is to come to an agreement through negotiations.  The best way to increase the chances of a negotiated settlement is to start from a non-adversarial process such as mediation or collaborative law.  With the skilled assistance of a good mediator or collaborative team, your family can come up with very creative solutions that meet all of your family’s needs and desires.  This is why alternative ways to resolve these disputes is often referred to as the way to find “win-win” solutions.

Best Lawyer Quote

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young gandhi“My joy was boundless.  I had learnt the true practice of law.  I had learnt to find out the better side of human nature and to enter men’s hearts.  I realized that the true function of a lawyer was to unite parties riven asunder.  The lesson was so indelibly burnt into me that a large part of my time during the next twenty years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases.  I lost nothing thereby — not even money, certainly not my soul.”

Mohandas K. Gandhi, 1957 from “An Autobiography: The Story of My Experiments with the Truth”

Although there are many quotes from great lawyers that remind us of our calling to serve and assist our clients, this is my favorite.  At a time when lawyers are too often the punch line in jokes, it is, I believe, helpful to remember the true good that the vast majority of our profession does on a daily basis.  I aspire to be a peacemaker for those who have hired me as a professional and to serve them in finding resolution to conflict.

Step Four: Establish the Ground Rules

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rules 2

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.