“I know exactly how this case has to be settled.”
A veteran lawyer (I’ll call him Greg) made this comment as he walked into my office. He was there for a divorce mediation. He set down his bag and iPad and outlined the terms he insisted were necessary to reach an agreement.
In rapid fire he ticked off exactly how he thought each issue should be settled — custody, parenting time, child and spousal support, and the division of assets and debts.
“Have you talked to your client about this?” I asked.
Greg’s client, a mother of two, had not arrived yet. Her husband, and the other lawyer, were in the adjacent room, speaking privately.
“I have excellent client control,” Greg replied, nearly winking at me. I understood what he meant:
My clients do what I say.
Over the next few hours, Greg maintained a relatively inflexible negotiating position based on his initial ideas. His positions were based on his understanding of the law and his prediction of the trial outcome if the case were not settled.
Greg dominated the settlement discussions. He told his client what was best for her how and how she needed to settle her case. This included the parenting plan for the children.
Greg didn’t want his client to speak to her spouse. Also, his client was given little room to express her own thoughts and feelings to the mediator.
This kind of strategy has worked for Greg before. He has settled many cases using just this approach. Indeed, Greg is well-respected and receives all sorts of honors and recognition for his success. Although Greg’s style was more domineering than many attorneys, it was consistent with the approach many traditional lawyers take to settlement negotiations.
By “traditional lawyer”, I refer to lawyers who were trained to practice in the traditional adversarial litigation system. These lawyers view mediation and settlement conferences as virtual trials. They come to mediation with the same goal as trial (winning), and use adversarial strategies of argument, control and domination to settle their cases.
These lawyers have not been trained and educated in, nor do they offer, the best contemporary practices of negotiation and settlement.
Greg is a traditional lawyer and has not been trained in modern negotiation practices. As a result, despite his reputation, and even though the case settled, Greg missed an opportunity to offer his client his best representation in mediation.
Here are 10 steps Greg could take to improve his settlement negotiations in mediation that may serve his client better:
Photo: Parker Knight
1. Client-Centered Legal Services
Settlement negotiations are about the client, not the lawyer. A lawyer’s duty is to advocate for what’s most important to his client.
I had the impression that Greg did not understand this important concept. Instead, he seemed more focused on “winning” the settlement negotiation. He argued about the law and bluffed and postured about terms of settlement.
If Greg could be more focused on what is most important to his client, and even try to understand what is most important to his client’s spouse, he could approach the mediation very differently. Instead of trying to “win” the mediation, Greg could explore terms of a settlement agreement that would be mutually agreeable to both clients.
2. Listening For What’s Important
To find out what is most important to a client, a lawyer must listen carefully. This may may be surprising, but many lawyers like Greg have not been trained to truly listen to their clients.
Instead, they instantly translate what they hear into legal categories and begin shaping a winning legal strategy.
As a result, these lawyers often miss the feeling and meaning of what a client is trying to convey. Then they fail to advocate for what is truly important to their client in settlement negotiations.
A lawyer using modern communication strategies and negotiation practices will learn to listen with the care and skill of a therapist. If Greg learns to listen deeply, he will better advocate for his clients’ most important needs and concerns.
3. Helping Preserve Relationships
Many people, especially parents with children, come to mediation because they want the relationship to remain amicable. They need to make a successful transition from married couple to co-parents, and they are afraid of the negative emotions that the litigation system frequently produces.
A lawyer skilled in contemporary settlement practices understands that preserving a co-parenting relationship is very important to many clients. Sometimes this goal is more important than maximizing one’s financial position.
If Greg were to understand this, he might consider changing his goals and tactics. He could discuss with his client the interplay between financial and co-parenting goals in light of his client’s desire to preserve a good post-divorce parenting relationship. He could also begin to explore the other party’s needs and interests so that both parties cooperate in developing a mutually satisfactory settlement agreement.
Like a traditional doctor-patient relationship, the traditional lawyer acted as the expert while the client was assumed to know little or nothing. Often, acting in the interest of the client, the lawyer took over full control of the client’s case.
Perhaps this was appropriate when cases ended in trials, because litigation (like surgery) requires special knowledge and expertise (such as rules of evidence and procedure).
But today, most cases settle without going to trial, and a lawyer’s trial skills are not needed. In mediation, although clients may benefit from a lawyer’s advocacy, many clients are capable of negotiating the terms of their settlement without significant help from attorneys once the clients have been educated about their legal rights. This is especially true for the child-related issues of custody and parenting time. Also, only a client (not her lawyer) can say whether proposed terms feel fair and just, and whether she wishes to enter into a settlement agreement.
A lawyer trained in contemporary settlement practices understands that this creates a large change in the attorney-client relationship. Greg could begin (like a good contemporary doctor) to see his relationships with clients as partnerships. Greg could learn to offer counseling advice and advocacy that supports and empowers his client.
Self-determination is one of mediation’s most important values. This is based on a deep respect for the right of clients to create their own agreements.
This is quite different from the adversarial trial system, where a judge determines the rights and obligations of the litigants.
When Greg assumed command and did not understand and promote what was most important for his client in mediation, he did not honor his client’s right of self-determination. This undoubtedly resulted from Greg’s lack of familiarity or agreement with this important value of self-determination.
If Greg could understand the importance of self-determination in mediation, he will learn to help his client participate in the creation of her own settlement agreement. He will probably learn what studies show-- that clients who create their own settlement agreements are far more satisfied with the outcome. As a result, they do not return to court as frequently.
6. Use of the Law
Clients in mediation should have an understanding of the law. They need to consider the alternatives to a negotiated agreement.
So it is appropriate that Greg counsel his client about the law.
However, if we respect the rights of clients to create their own agreements in mediation, the terms of settlement may or may not reflect the predicted trial outcome. The clients will determine whether to follow to law or create a different result that feels more fair and appropriate to them based on their unique circumstances.
If Greg adopts this approach, he will advise his client about the law, and then he will help her assess whether she wants to create a settlement that wholly reflects the law or might be also based on other factors.
7. The Limits of Predicting Trial Results
Studies show that lawyers do not make very accurate predictions about trial outcomes.
Greg spoke with great confidence when he gave his opinion regarding the law. This was based on his prediction of what would happen at trial if the case were litigated rather than settled. While he was no doubt posturing to me and the other attorney, he spoke to his client as if he knew precisely what the outcome would be.
Very experienced lawyers will generally make better predictions than inexperienced lawyers, but the best lawyers speak with humility about the law because they know how unpredictable trials can be. Greg could improve his representation if he shared this information with his client.
8. Making Room for Emotions
As a traditional lawyer, Greg has become quite skilled in legal analysis, as well as written and spoken rhetoric. But he has never received any training in working with his client’s, or his own, feelings.
So when his client wished to express her feelings in mediation, Greg felt uncomfortable. As a result, he worked to stifle her attempt to convey her feelings.
Time and again, I have heard traditional lawyers tell clients there is no room in the law for feelings; that feelings do not matter; and that the client would take her feelings to a therapist.
Yet clients are in conflict because of their feelings and emotions. And it is impossible for clients to discuss the terms of settlement, and determine what feels fair to them, without allowing them full access to their feelings.
The contemporary lawyer knows how important it is to receive training in the area of emotional intelligence so he or she is capable of truly providing empathic support and representation. Greg will only become a complete lawyer when he gains comfort with the emotional aspect of conflict.
Photo: John Larkander
9. Shifting from Competition to Cooperation
Greg treated his opponent and the other spouse as if he were engaged in trial -- a winner-take-all battle. This is not surprising; it is how he was trained to act as a traditional lawyer in the adversarial litigation system.
Modern lawyers appreciate that mediation offers an opportunity to move from an adversarial arena to one that promotes solving problems and creating agreements.
Modern lawyers know that an adversarial approach is ruinous for families. All experts agree that children are harmed when the parents are in conflict, and by the adversary system’s tendency to worsen the conflict between parents.
With an understanding of modern negotiation practices and non-adversarial approaches, Greg might take a different approach. He might adopt a problem-solving model that attempts to create agreements based on what’s important to both parties in a divorce.
10. Working with the Mediator
Similarly, Greg’s traditional, adversarial approach spills over to his relationship with the mediator. He treats the mediator as a judge. Greg works to convince the mediator that his positions are “right” and he wants the mediator to put pressure on the other lawyer and party to settle.
If Greg were a truly skilled lawyer, he would understand that a skilled mediator does not act as a judge. And the mediator would not coerce a party to settle in violation of the principle of self-determination.
We can see, however, why Greg “protects” his client from the mediator by blocking anything more than superficial conversation. Whenever the mediator tries to learn what is important to Greg’s client, Greg intervenes and speaks for the client. This is because Greg fears the mediator will put pressure on his client to settle.
Greg would represent his client more effectively if he can understand that a mediator tries to help the parties create an agreement that contains everything that is most important to both of them. If he can understand this, Greg will promote conversations between mediator and client instead of blocking them. Conclusion
Some cases need to be tried need in a court of law. But not as many as you think. Today, most cases can be settled out of court. In fact, most cases are settled out of court.
Unfortunately, there are many traditional lawyers like Greg who were trained to litigate cases and now find themselves trying to settle their cases without training in modern settlement skills. They try to settle their cases in mediation using old-fashioned techniques that are carry-overs from their trial techniques.
Fortunately, there is also a growing numbers of lawyers and mediators who have undertaken specialized training and embraced non-adversarial settlement practices. These lawyers and mediators are equipped to help families create the best agreements and make the transition through divorce with the least possible harm.
I’m Michael Dwyer and I specialize in family mediation, including child custody mediation, in Portland, Oregon. I’ve worked with hundreds of families in conflict. I teach and use contemporary settlement and negotiation practices to help families reach the best decisions possible.
If you’d like to learn more, please get in touch or give me a call at (503) 241-9456.