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Negotiation

Photo by Grendl on Flickr

There are steps you can take to transform a potential zero-sum competition of wills into an interaction that is aligned toward problem solving—even with the hardest bargainer.

First, beware the common tendency to equate being collaborative with being nice. There’s nothing inherently wrong with being nice, but niceness is not the point of mutual-gains negotiation. Rather, a collaborative approach is more of a bargaining stance than a personality style. Some negotiators view their counterparts as competitors with whom they must spar. Others jointly identify the issues up for discussion and work together to address them. It’s possible to be nice or less than nice when you’re taking either approach. Call them on their behavior, demeanor, and tone. Point out to them what they are doing to obfuscate or derail the process. Do it politely.

Second, examine your assumptions about the hard bargaining you expect to face. Consider that the other party may have a policy of acting difficult, or he/she may be unaware of the damage he/she’s doing. Regardless, when you try to collaborate, you may feel you’re stuck between either conceding or reverting to an old-school game of haggling. In most cases, this perceived either/or choice is a false one. Look for options, suggest alternatives, identify solutions not yet discussed. Think creatively.

Third, an effective antidote to troublesome behavior is active listening. Active listening doesn’t mean waiting patiently for the other side to end a rant or nodding and saying, “I understand, but… ”. Instead, active listening entails proactively interrupting the other party to paraphrase what they said, asking follow-up questions to better understand confusing assertions, and acknowledging the highly charged emotions that may lurk below the surface. When done well, active listening can tame the hardest bargainer—which is why it’s a central component of hostage- and crisis-negotiation training.

As you Master the Tactics & Strategies of Communication Skills you will find yourself bringing people together in Win-Win Solutions more frequently. It is simple. It is not easy. It is aspirational. It takes time.

The Seven Options for Divorce: Number Seven

Alec Baldwin wrote a book last year called A Promise To Ourselves, decrying “the corrupt California divorce industry” (his words).  He describes a nightmare divorce that lasted eight years and cost over three million dollars, after a ten-year marriage to Kim Basinger.   That is the seventh option:  Litigation.

A few years ago there was a case all over the newspapers.  A short marriage; a two-year-old child.  Dad was voluntarily giving Mom $50,000 a month in child support, but the mother wasn’t satisfied.  Mother wanted $350,000 a month in child support for the two-year-old.  Why?  Because Dad could afford it.

The couple spent over a million dollars – each – on the Order to Show Cause Hearing.  At the end of the day, after hearing all of the evidence and testimony, after concord jets and race horses and all the other evidence put in for a two-year-old child, the judge raised the support from $50,000 a month to $60,000 a month.   A hundred thousand for a million.  That’s litigation, straight up, all the way.

The good news is that you have options.  You don’t have to spend your life’s savings on legal fees or spend years fighting in court.  It’s your money, it’s your family, it’s your choice.

Option 1:  The Kitchen Table
Option 2:  Mediation
Option 3:  Collaborative Divorce
Option 4:  Arbitration
Option 5:  Negotiation in the Shadow of Litigation
Option 6:  Rent-A-Judge
Option 7: Litigation

The Seven Options for Divorce: Number Six

Your sixth option is Rent-A-Judge.  If California were a business, it would be bankrupt.  The courts are under-funded and over-crowded.  The lines waiting for trial dates go on and on.  The supervising judge in the family law department is anxious to get rid of cases.  Any time two attorneys stipulate to file an application for Rent-A-Judge, the court will immediately appoint a retired judge in good standing as a judge pro tem*.

But how does it work?  The court appoints a retired Superior Court judge, an appellate court justice, or a Supreme Court justice, and you rent their time.  In most instances they apply the same rules they would if they were sitting in a courtroom.  They may even work in a courtroom.  But if Angelina and Brad Pitt decided to get married and then decided to divorce, they wouldn’t go to court.  They’d hire a retired judge and they’d have their divorce at Chateau Marmont and it would be catered.**

Los Angeles County is host to a “Rent-A-Judge” program wherein retired Superior Court judges are available as arbitrators or will sit as judges on a private basis.  In the “Rent-A-Judge” program you try your case in a conference room just as you would in a court room, but without the delays and interruptions you experience with a judicial officer who is subject to the interruptions of a heavy caseload.  If you know you have a case that will be in court for a long time, this option can save you a lot of money.

Option 1:  The Kitchen Table
Option 2:  Mediation
Option 3:  Collaborative Divorce
Option 4:  Arbitration
Option 5:  Negotiation in the Shadow of Litigation
Option 6:  Rent-A-Judge
Option 7: Litigation

* temporary judge

** The Law Collaborative does not represent either of the Jolie Pitt’s and is in no way making any claims about the state of their relationship.  It was a harmless, fictional example.

The Seven Options for Divorce: Number Four

The fourth option for divorce is Arbitration, which is quite different from our first three options.  The Kitchen Table Divorce is casual, creative, quick and inexpensive.  Mediation is a cooperative effort between individuals to reach a mutual agreement based on consensus and compromise.  Collaborative Divorce provides you with a team of professionals that rally and support you, ensuring that all your needs are met.  Though Arbitration is similar to mediation, it is more like litigation in that the parties present their respective positions, evidence, testimony and witnesses to a trial of fact.

Arbitration is a settlement technique in which a third party reviews the case and imposes a decision that is legally binding for both sides.  The arbitrator may be a retired judge, an experienced trial lawyer, or some other professional selected from a panel of competent arbitrators, such as the American Arbitration Association.  Arbitration can be either voluntary or mandatory and can be either binding or non-binding.  The principal distinction between mediation and arbitration is that whereas a mediator will try to help the parties find a middle ground on which to compromise, the (non-binding) arbitrator remains totally removed from the settlement process and will only give a determination of liability.

Arbitration is most commonly used for the resolution of commercial disputes, but it is desirable in divorce cases when agreement cannot be reached but the parties still wish to save the costs and expenses of litigating through the usual judicial system, which has built-in delays and attendant increased costs.  The Los Angeles County Superior Court sponsors an arbitration program and a “Rent-A-Judge program wherein retired Superior Court judges are available as arbitrators, or will sit as judges on a private basis.  But we’ll talk more about Rent-A-Judge in a later post.

Option 1:  The Kitchen Table
Option 2:  Mediation
Option 3:  Collaborative Divorce
Option 4:  Arbitration
Option 5:  Negotiation in the Shadow of Litigation
Option 6:  Rent-A-Judge
Option 7: Litigation

What’s new at The Law Collaborative

Dear Friends of the Law Collaborative,

This April we celebrate an anniversary. Although Ron and Robert have been practicing family law for a sum total of fifty years or more, this April we celebrate the First Anniversary of The Law Collaborative, LLP, formed by Ron and Robert with the stated aim of ‘Bringing Peace to the Legal Process.’

With this in mind, we offer our readers one simple suggestion for establishing peace in our daily lives.

Thankfulness.

Even in tough times, there is plenty for which to be thankful. If we establish a habit of noting the small things that mark us as fortunate, we cultivate Thankfulness and Appreciation. Establishing these qualities in our lives benefits our health, our relationships, and our general well-being. They also have a way of overflowing into the lives of others. Realize that there is no actual risk attached to exercising Thankfulness and Appreciation, and that such attitudes come with much potential benefit. Thankfulness and Appreciation may be experienced on a daily basis if we apply ourselves to forming the habit.

COLLABORATIVE LAW – The attorney who wishes to employ collaborative law in his practice must have a thorough knowledge of negotiation skills, and understand the underlying theories and strategies of negotiation. Minimum standards for collaborative family law practice are continually expanding, as the work continues to attract more followers throughout the country. The State Bar provides education on an annual basis, making available new tools, technology, and information generated by the professionals engaged in the practice. This month, on Saturday, April 10th, Ron will be the closing speaker at the “Helping Families” conference at Pepperdine Law School in beautiful Malibu. Any professional interested in learning more about collaborative practice would do well to attend. For more information, check www.CDR4-10-10event.com

We would like to share a testimonial, and our new blog –

www.RonandRobertonDivorce.com

Testimonial:

The Law Collaborative is a team of divorce lawyers and paralegals who advocate for the family. I have yet to come across another group of lawyers who take as much care in preserving family values, keeping costs down and protecting children, as the good people at The Law Collaborative. TLC focuses on keeping families together, even in the middle of a crisis. This concept has so enraptured me that I’ve been inspired to write “A Serious Girl,” a blog that focuses on marriage and family. The Law Collaborative opened my eyes to the many options we have for our marriages, our children, and our lives.

Visit Ron and Robert on Divorce on ITunes for additional information. Please call us if you have any questions. We are here to serve you.

Follow us on www.Twitter.com/TLC_Law
Add us on www.Facebook.com/TheLawCollaborative

Best,
Ron Supancic and Robert Borsky

In Plain English

Two children are in the kitchen fighting over an orange.  Their father walks in, sees what’s going on and decides to put an end to it.  He grabs the orange from their hands, puts it on the chopping block, cuts it in half and gives half to his son and half to his daughter.

Both children burst into tears.  Astonished, the father turns to his son and says, “Johnny, why are you crying?”
“I wanted the whole orange!”  Johnny says, sobbing.
“You can’t have the whole orange, there’s only one orange.  You have to share it with your sister.  Stop crying.”  Then he turns to his daughter and says, “Suzy, why are you crying?”
Suzy sniffles and says, “Daddy, I didn’t want the orange at all.”
“What? What are you talking about?”
“I only wanted the peel.  I need it for an icing recipe for a cake I just baked.  But I have to have the whole peel.”
The father scratches his beard, thoughtfully.  “You only wanted the outside of the orange?”
Suzy nods her head sadly, a fat tear dripping from her chin.  “Yes.”
“Can Johnny have the inside of the orange?”
Her eyes widen and she bounces on her toes.  “Yes!”
“Johnny? Will you give your sister the orange peel if she lets you have the inside of the orange?”
Little Johnny’s face brightens and he clasps his hands together.  “Yes! Of course! I didn’t even want the crummy old peel!”

***

The truth about litigated divorce is that the judge doesn’t have the time, the inclination or the imagination to find out what your interests are.  When you get a traditional, litigated divorce, you get distributive bargaining.  The judge is following the law.  He’s lead by the rules and the statutes.

With Collaborative Divorce, as well as with mediation or The Kitchen Table Divorce, there is creativity and imagination.  Your wants, your needs, and your fears are heard, acknowledged, and understood.  Your spouse’s wants and needs and fears are heard, acknowledged and understood.  It’s impossible to be angry or hateful towards someone you understand.

You went into your marriage with love.  If you’re getting a divorce, you have the opportunity to reorganize your life with love.  It’s your choice.