Beyond Winning

by Robert H Mnookin

  The next two chapters suggest how to establish relationships that will support problem-solving with your own client (Chapter 7) and with the other side (Chapter 8). With each, you will often have to lead the way. This requires that you:

  • Get your head straight: having the right mindset and being clear about your purposes are critical prerequisites.

  • Engage in critical problem-solving activities with the appropriate skills: implementing the general approach by knowing what to do and how to do it.

  • Change the game as necessary: overcoming resistance when your own client or the other lawyer has a more traditional adversarial approach.

  In Chapters 9 and 10, we deal with disputes and deals independently and offer specific advice about how best to meet the negotiation challenges posed in each domain.

  We start out with the example of divorce for a number of reasons. First, divorce negotiations are a hybrid of dispute resolution and deal-making. On the one hand, Jake and Samantha are clearly negotiating in the shadow of the law: if they don’t resolve their dispute, a court will. On the other hand, their negotiation has deal-making qualities because they are structuring their ongoing future relationship in a way that meets their interests and minimizes opportunism. While divorcing parties may consider what a court would order if they don’t reach agreement, they have broad freedom to structure a negotiated settlement to reflect their own unique situation. As a formal matter, a court reviews the arrangements made for the children before issuing a divorce decree, but courts typically rubber-stamp a parental agreement so long as children will be cared for adequately.

  Second, in divorce negotiations the tension between distributive issues and value-creating opportunities is ubiquitous. The division of property, the allocation of future income through alimony, the ongoing financial support of any children, and child custody and visitation arrangements all present tough distributive issues. At the same time, in almost every case, value-creating opportunities can be found if the parties are willing to search for them. Alimony, for example, can be paid over time or in a lump sum up front. Alimony and property division can be combined creatively to best meet the interests of the spouses. In a variety of ways, financial issues can often be structured to minimize tax consequences. And custody and visitation arrangements can be tailored both to promote the interests of the children and to reflect the preferences of the parents.

  Finally, many divorcing spouses have little experience with the legal system and thus lean heavily on their lawyers to manage these distributive issues and value-creating opportunities. The sad truth is that lawyers sometimes make matters worse, not better. Some divorce lawyers are notorious for fanning the flames of conflict and distrust rather than dousing them. Instead of negotiating a marital dissolution that minimizes transaction costs—both financial and emotional—and preserves the possibility that the divorcing spouses can have a productive future relationship, some attorneys eagerly engage in hardball tactics, claiming that this is the only way to win as much as they can for the client.

  The good news is that lawyers have great comparative advantages over their clients in divorce negotiations. Even if two divorcing spouses are distraught, their lawyers can negotiate calmly and work with each other to resolve differences amicably. And most important, lawyers may help their clients through a divorce while preserving, rather than destroying, what is left of the clients’ underlying relationship. This is particularly important in the case of divorcing parents, who will have to maintain a working relationship into the future so that they can manage the responsibilities of child-rearing. Among other things, Chapters 7 and 8 show what a divorce negotiation—and, by extension, other legal negotiations—could look like if lawyers take a problem-solving approach both behind and across the table.

  7

  Behind the Table

  Behind the table, a lawyer’s goal is to establish a client-centered, collaborative relationship that supports problem-solving negotiation.1 A client-centered orientation is important because the lawyer’s energies and skills should be focused on helping the client understand better his own interests and priorities and then pursue those priorities effectively through negotiation. Collaboration is important because both lawyer and client have skills and resources to contribute to their joint enterprise and information that the other needs to make wise decisions about their negotiation.

  Our approach rests on the core values of informed choice (that a lawyer should help a client see the true costs and consequences of different approaches to the client’s problem) and autonomy (for both lawyer and client). It is based on the conviction that clients deserve respect; that lawyers must be committed to serving their clients and to acting loyally; and that lawyers must also respect themselves and their own interests as people and professionals.

  GETTING YOUR HEAD STRAIGHT: ADOPTING A COLLABORATIVE, CLIENT-CENTERED MINDSET

  A lawyer may need to change her mindset about her client and the lawyer-client relationship to support problem-solving. To align her stance with the goal of establishing a collaborative and client-centered relationship, a lawyer must shift her thinking in several basic ways:

  • Sharing control: Rather than assume that either lawyer or client must exert unilateral control in their relationship, a lawyer can share control, both respecting the client’s views and expressing her own.

  • Mutual learning: Rather than believe that the lawyer’s role is simply to educate the client about the law, she can approach the relationship expecting to learn from the client as well. Although weighing legal opportunities and risks is often critical, a lawyer will be more able to negotiate effectively with the other side if she understands the client’s views, interests, resources, capabilities, and priorities.

  • Expecting differences: Rather than being frustrated that her client doesn’t see the benefits of problem-solving, she should expect that a client’s orientation toward negotiation may often be different. Such differences are properly a subject of negotiation between lawyer and client.

  • Discussing conflicts: Rather than pretend that her economic interests are always perfectly aligned with those of the client, and that such concerns are best left unmentioned, principal-agent issues can be treated as shared problems.

  Sharing control, mutual learning, expecting differences, and discussing conflicts are elements that should inform a lawyer’s approach toward her client.2 With these in mind, we now explore four critical tasks in the lawyer-client relationship and suggest how the lawyer’s mindset can either help or hurt.

  Talking about Interests

  Unless a lawyer understands his client’s interests, resources, capabilities, and priorities, it will be nearly impossible for the lawyer to create value. Nevertheless, lawyers sometimes fail to probe for this information because of limiting assumptions about negotiation, their clients, and the lawyer-client relationship.3

  THE CLIENT’S INTERESTS

  Lawyers often assume that they know, or should know, their clients’ interests, and therefore they don’t probe to uncover those interests (see Box 11). Other lawyers feel foolish probing for a client’s concerns; they believe that being professional means wearing a mask of omniscience, and that asking about a client’s priorities would expose their ignorance. A stance of genuine curiosity toward one’s client is critical. Even if a lawyer has negotiated a dozen similar transactions or disputes, treating each client as an individual with special needs and interests is the only way to find out if, in fact, this particular client has idiosyncratic concerns. Although some clients may prefer that their lawyers simply say, “Sit back and let me work my magic,” more often clients appreciate their lawyer’s willingness to listen and learn.

  Box 11

  THE OTHER SIDE’S INTERESTS

  Because any agreement must necessarily satisfy some of the other side’s interests and priorities, understanding them facilitates the search for value-creating trades. But even though a client can often shed light on the other side
’s concerns, many lawyers do not raise these issues with their clients. A lawyer may assume that his client doesn’t care about the other side’s interests, that discussing such interests will raise doubts about the lawyer’s loyalty, or that understanding the other side might weaken the client’s resolve. A lawyer must help the client see that understanding the other side is not tantamount to acquiescing to their views (see Box 12).

  These assumptions handcuff attorneys and keep them from trying to work with their clients in a problem-solving way. And underneath “My client wants war and therefore I shouldn’t talk about the other side’s interests” may be a fundamental but unspoken conviction that the client is unable to learn, cannot change her views, or fails to see the complexity of the situation. A lawyer must challenge these fundamental stereotypes and try to assume that a client can learn to see the importance of the other side’s interests and will come to understand that her lawyer is faithfully serving her interests by discussing those of the other side.

  It can help simply to explain why thinking through the other side’s perspective will often benefit your client and is an essential part of preparing for a negotiation. You can also try coaching your client to see things from the other side’s point of view. You can ask your client to take on the role of the other side and to argue the other side’s view of the case. Have the client physically move from his chair into a chair assigned to the other party. Insist that your client speak in the first person—using the word “I”—as if your client was the party on the other side. Begin by asking your client some basic questions to put him in role, like “How long have you been married to Jake?”—when your client is Jake. This can help the client get used to speaking as if he were the other side. Then ask questions about how the other side feels about the case, what she hopes for, and how she sees your client.

  Box 12

  Role reversal can yield helpful and sometimes profound results. Often clients have known the other party in a dispute or deal for a very long time—especially in the case of marriage or business partners—and they understand much more about the other party’s concerns than they may be willing to admit. Role reversal helps clients express this buried knowledge. In some cases, clients return transformed from their journey into the other person’s shoes.

  Discussing Legal Opportunities and Risks

  Assessing the legal opportunities and risks at stake in a negotiation is another key task in the lawyer-client relationship. Lawyers and clients often grapple with a host of limiting assumptions about this task (see Box 13).

  Lawyers may assume either that they must point out everything that could possibly go wrong with a client’s case—thus hedging against disappointment—or that they must assure the client that everything will be all right. It is the lawyer’s job—in part—to identify and to explain to the client the risks associated with any particular course of action. But exaggerating and elaborating on all the extremely unlikely things that might go wrong is rarely helpful. It is more useful to communicate the nature and magnitude of risks in light of the client’s articulated interests. This involves identifying those risks most likely to arise and planning creatively to constrain them.

  Nor is the lawyer’s primary role to persuade the client that everything will be OK. Certainly a lawyer should reassure her client of the lawyer’s continuing commitment when bad news arises. But sugar-coated assessments designed to make a client feel good prevent the kind of rational and thorough deliberation that allows the client to make an informed choice.

  Box 13

  When lawyers try to manipulate their clients’ expectations, it is often out of a desire to control the outcome of a deal or dispute. To some extent, of course, a lawyer is responsible for the outcome—a lawyer is supposed to work diligently to get a good negotiated agreement or litigated decision. But some lawyers implicitly take too much responsibility. If the stock market dives, environmental contamination leaks, markets change, or a witness dies, it is not the lawyer’s doing. If a client gives terrible testimony on the stand, of course the lawyer should take appropriate responsibility if he didn’t prepare the client sufficiently. But is the client’s demeanor ultimately under the lawyer’s control? Probably not. Letting go—just a little—of the urge to control the outcome can free you up from needing to manipulate a client’s expectations and can therefore make it easier for you to be candid with your clients.

  Broadening the Lawyer-Client Relationship

  Sometimes lawyers have limiting assumptions about the scope of the lawyer-client relationship (see Box 14). Specifically, some lawyers feel that business issues or the personal dimensions of a deal or dispute are off limits. Clients predominantly seek legal advice from their attorneys, not management advice, economic forecasts, or family counseling. At the same time, the boundaries between personal, legal, and business issues are permeable and difficult to define precisely. To solve a problem well, lawyers often must delve into the personal and business dimensions of the situation.4 This is not to say that lawyers should try to be all-knowing. But they often accumulate interpersonal and business skills and experience that clients find helpful.

  Obviously, boundaries between personal and professional life are necessary, and lawyers cannot spend all of their time discussing personal matters with their clients. Still, some lawyers are so afraid of establishing any personal contact with clients that they act like machines, not people. A lawyer should try to remember that clients often are very emotional by the time they arrive, as a last resort, at a lawyer’s door, that clients may require some personal contact to feel at ease with their lawyer, and that there is very little at risk—and lots to gain—by connecting with a client at an emotional level. Similarly, if a client asks for business advice and a lawyer has relevant expertise, he should feel free to offer his opinion—with qualifications regarding his training or experience in the area.

  Box 14

  Negotiating Fees

  Finally, some lawyers have great difficulty discussing fees with clients. An attorney may feel embarrassed or uncomfortable. Some fumble their explanation and confuse their clients. Others deal with fees in a rigid, cursory fashion. This can waste an opportunity to solidify the lawyer-client relationship.

  Several limiting assumptions keep lawyers from talking about fees effectively (see Box 15). Setting a lawyer’s fee is a primarily distributive negotiation, but not exclusively. Fee negotiations include more than setting the dollar amount or the contingency percentage. As we’ve pointed out, lawyers and clients can create value by designing incentive schemes and monitoring arrangements that facilitate a strong and efficient working relationship.

  Box 15

  Similarly, it is certainly true that it would be awkward for a lawyer and client to engage in hard bargaining over the size of the lawyer’s fee. But lawyers and clients can discuss compensation agreements without treating each other like adversaries. Of course, if a lawyer and client cannot agree on what a reasonable fee would be, it’s better to discover that disagreement at the outset rather than after the representation has begun. A fee arrangement is usually much harder to negotiate after the work has been done than before, especially if there is no expectation of future work together. Talking about fees candidly up front lays a strong foundation for the lawyer-client relationship.

  MEETING WITH THE CLIENT

  Mindset is one part of the equation; action is another. When meeting with the client, what critical activities should a lawyer engage in to establish a relationship that is client-centered, collaborative, and supports value creation across the table? Managing the three tensions effectively requires that a lawyer keep certain basic objectives in mind.

  • Understanding (and helping the client understand better and prioritize) the client’s interests, needs, resources, and capabilities and those of the other side

  • Letting the client tell his story and demonstrating empathy—without necessarily agreeing

  • Explaining the legal process and helping the
client weigh legal opportunities and risks

  • Evaluating (and perhaps improving) the client’s BATNA

  • Exploring value-creating opportunities with the client

  • Allocating roles and responsibilities

  • Discussing the lawyer’s negotiation orientation, professional boundaries, and fees

  When Tony Watson meets Jake Greene for the first time, Jake appears somewhat nervous and upset. He explains that he has hired a lawyer only once before—when he and Samantha bought their house. Before their meeting, Jake sent Tony a copy of the divorce petition that Samantha had filed, together with some basic information about the family’s finances. Jake confesses that he had hoped that he and Samantha could do the divorce themselves, without lawyers. But since Samantha has hired a lawyer, and he really doesn’t understand how divorce law works, he figured he needed representation. He got Tony’s name from a friend at work whom Tony had represented in her divorce.

  Tony does not feel compelled to achieve the goals outlined above in any particular order. These are not phases or stages that his discussions with Jake will proceed through. They are goals to achieve in an interwoven process that will depend in large part on what Jake wants to discuss and how Jake reacts to Tony’s thoughts and input. Tony wants Jake to feel at ease and to trust him. For this reason, he will encourage Jake to talk, and work to mix empathy with explanation. Tony will seek to demonstrate his commitment to understanding Jake’s story, interests, and concerns by listening actively, and he will begin the process of educating Jake about how the legal system functions and how they might work together.