A Negotiation Coach? What’s That?
By Chaim Steinberger (c) 2018
From time to time, I’m approached by people who don’t want to do their negotiating through lawyers. They may believe that lawyers might make matters unnecessarily complicated. They might inflame the situation. Or one party doesn’t want to hire a lawyer and doesn’t feel comfortable negotiating directly with the other lawyer. The person, however, wants to be informed. They want to know what their rights are and only after becoming informed, decide which rights they’re willing to waive. They want to make sure they’re not overlooking a future or long-range issue that might come back to bite them if they unknowingly waive it. And though they want the benefit of the years of experience and prior divorces that a seasoned divorce lawyer brings to the table, they want to control the flow of the negotiations themselves. How can they accomplish all this? By hiring a seasoned divorce lawyer and negotiator as a negotiation coach. Being a negotiation coach is one of the services I offer.
As a negotiation coach, I explain to my client the angles and considerations that are relevant to their issues. As with all clients, I give them the pros and cons and let the client make the decision that right for them. I explain the benefits of taking a proposed course of action and its actual or potential costs. I ask the client what risks they’re willing to tolerate and which risks are just too important to them to avoid. I help and support the client to make the decision that’s right for themselves.
As a negotiation coach I’ll also help the client develop a negotiating strategy that’s right for their situation. Because I believe negotiations should always come from a place of honor and dignity–for the other party as well as our own selves 1–my methods resonate deeply with my clients and my clients can usually “wear” comfortably the negotiation posture we develop. Moreover, because it is a caring, honorable negotiating strategy, it does not further erode or “traumatize” the relationship between the parties or make the future co-parenting of the parties’ children more difficult. In fact, this type of honorable negotiation often facilitates healing and helps the parties’ develop a new and empathetic way of relating to one another, and forms a stable and healthy platform upon which to build their future lives. 2 They are then better able to respectfully co-parent their children together, even as they pursue their lives individually.
Taking on the role of a negotiation coach is consistent with the latest trends in the legal industry today, that of providing “unbundled” legal services (also known as “limited scope representation”). This involves a lawyer taking on something less than “the whole case,” soup-to-nuts, and everything in it. 3
There are, however, issues a client should be aware of when hiring a lawyer for something less than the whole matter. Although a client may think they have discrete issue that they can negotiate themselves without effecting the rest of the case, most of the time every one issue is connected to an array of other issues. Moreover, every legal strategy must be consistent with the client’s “theory of the case.” 4 A client who is handling the one issue may not be aware of how it effects the others, or how it undermines the theory of the case. Similarly, a lawyer who is involved in only one angle of the case may not know about the others, to know whether they will be effected by what the lawyer does in this discrete matter. There is therefore great opportunity for some one thing to inadvertently damage another. Moreover, I’ve made many crucial discoveries in the cases I’ve worked on by hearing a nuance in the answer to an unrelated question, that lead to my asking follow-up questions. Limiting a lawyer’s role to discrete aspects of the situation effectively installs blinders on the lawyer keeping other potentially relevant factors out of the lawyer’s field of vision. Finally, as cases move through the process different parts of it become relevant while others are rendered irrelevant. A paper that might have been irrelevant yesterday becomes critical today. Even good advice received from a lawyer on Monday may no longer be good advice on Wednesday. A client who signs up for unbundled legal services must either keep the lawyer in the loop to ensure that the strategy and advice remains solid, or must take the risk of malpractice upon themselves knowing that the attorney has a discrete, limited role in the matter.
Knowing all this, the benefits and risks, clients are now able to make the decision that’s right for them and their situation.
- For an excellent treatise on negotiating difficult issues from a place of honor, compassion and dignity, see William Ury, The Power of a Positive No: Save the Deal, Save the Relationship, and Still Say No. ↩
- See “Divorce As a Healing Process” at https://thenewyorkdivorcelawyers.com/. ↩
- For more on unbundled legal services see, Woody Mosten, Unbundled Legal Services Today–and Predictions for the Future (printed in the ABA Family Law Section Advocate and available for free download at https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&ved=0ahUKEwjSgqOJpdPYAhWFx4MKHdUqDUUQFggvMAE&url=http%3A%2F%2Fwww.mostenmediation.com%2Fbooks%2Farticles%2FUnbundled_Legal_Services_Today_and_Predictions.pdf&usg=AOvVaw1bzUPoiNbPpTpWPwyjReYv). ↩
- See https://thenewyorkdivorcelawyers.com/resources/how-to-win-the-unwinnable-case/ and other sophisticated litigation treatises. ↩