Bob Bordone, founder of Harvard’s Negotiation and Mediation Clinical Program, recently spoke with Family Lawyer Magazine’s Diana Shepherd about crucial skills and mistakes, changing the tone, and handling difficult clients.
Diana Shepherd: Negotiation is a crucial lawyering skill. What are some of the most common mistakes that family lawyers make in negotiation?
Bob Bordone: The common mistakes that family lawyers make are probably similar to the kind of mistakes that most of us make when we negotiate. The foremost one is that we tend to think of negotiation as a battle of wills, a back-and-forth process where the goal is to make the fewest, smallest, and least important concessions that take other side the longest amount of time to extract from us. Some family lawyers think of negotiation as a battle – but the most skillful attorneys see negotiation as an opportunity to advance not only the interests of their own client, but also the interests of the other side and the family members, both in the short and long term.
The second, related mistake is missing the opportunities – particularly in family situations – to achieve mutual gains. Family lawyers sometimes fail to look beyond their client’s demands, which often involve anger, bitterness, and rancor, to identify the deeper underlying interests. These interests can provide opportunities to move beyond a mere distributive negotiation to something we call “mutual gains” or “interest-based negotiation.”
Some people contend that family law is not well-suited to interest-based negotiation because the issues are primarily distributive. What do you say about that?
Bob: Family lawyers often tell me that family situations are different because they’re so distributive. I would say, “Yes and no.” There are some distributive questions in family situations, including everything from child custody and who gets the marital household to the division of assets. But because it is a family situation where there are lots of emotions, differing needs of parties over time, and ongoing relationships, there are many opportunities to create real value between the parties.
There are opportunities to turn those purely distributive questions into ones that actually are quite amenable to a mutual gains approach. For example, people may have different preferences with respect to how things get divided, what’s most important to them, and how things might change or evolve over time. In fact, many times what looks distributive can actually be an opportunity for mutual gain. One parent says they want more visitation; the other is reluctant. When you look deeper, the parent who is reluctant is actually concerned about last minute cancellations and thinks they will be less likely if the parent demanding more visitation has fewer opportunities to see their children. But once you unearth the real concern – worries about cancelled visits – many more creative outcomes are possible.
Lastly, I think part of the argument or claim that family negotiations are primarily distributive can be tracked back to a psychological bias where we tend to over-focus on the areas of difference and ignore or downplay the areas where there might be shared or differing and non-competing interests.
What is the most important skill of a great negotiator?
Bob: It’s easy to identify and hard to do well: active listening. This can be counterintuitive to those who are new to the field. They may think, “Wait a minute, isn’t negotiation supposed to be persuading somebody? How am I persuading them if I’m listening to them?”
Active listening, which is asking curious questions, acknowledging underlying emotional content, and making sure that you’ve carefully understood everything the other side has said, has a number of valuable impacts in negotiation. First, just making the other person feel understood reduces their own kind of repetitive behavior and moves them into a place where they can be more constructive and problem solving.
It can also provide critical information that can help you better understand what might be persuasive to them.
While I rank active listening as number one, it is also perhaps the hardest thing to do and the most tiring, because good active listening is not a passive event. It is, in fact, active. It’s training your mind to be present when the other person is speaking and making sure you do what is necessary to make them feel truly heard and seen.
Is it possible to actually change the tone of a negotiation if only one person is doing active listening? I can see going in there with all of the best of intentions that you are really going to listen to the other side, but if the other side comes back and tries to run you over with a Mack truck, maybe your listening goes out the window?
I think it is much harder to do when the other side is not inclined to do much listening. When I am asked to mediate family situations, especially those involving multiple family members, I’ll often try to persuade them to do some training with me first, because it’s clearly better, as your question indicates, when both sides participate in active listening.
Having said that, I think that even if just one side is doing the listening, there’s an increased likelihood that you can move to more constructive problem solving. At some point, the person who is doing the bullying or yelling in the face of really skillful listening typically moves away from whatever it is they’re doing. Their intransigent behavior really isn’t working; it’s not causing a fight back, a surrender, or a cave in, and it starts to look ridiculous.
Of course, this doesn’t always work. But I would distinguish really good listening from caving in or making concessions, even if the listening is not effective, because it changes the negotiation dynamic. And you lose nothing by doing it, except maybe a bit of time.
What if the difficult client is yours? Can you negotiate effectively when you have an unreasonable client? Or is litigation the best choice for really difficult clients?
Bob: When people come to their lawyer for a family situation, they’re not typically feeling good about their relationship, themselves, or their life. From a negotiation perspective, it is critically important for lawyers to see their interactions with their clients as negotiations. It would be an error to agree to their client’s demands or to say, “Here are the reasons why you’ll never get that in court, or here are the reasons why that doesn’t make sense.”
Both of these approaches could get a lawyer in trouble when they’re negotiating across the table with the other side. Instead, it’s important to use active listening skills to acknowledge the challenging emotions that are coming up, and to help the client distinguish their emotional needs from what they’re asking of the other party. This requires the same set of negotiation skills around listening and perspective, taking their time, of course, when a client is exhibiting challenging behavior that they’re not going to change. In this situation, I think the lawyer should “reality check” their client. Attorneys are familiar with the term BATNA, which is, in negotiation parlance, the best alternative to a negotiated agreement.
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