dougnoll’s posthaven

Clients have interests, needs, goals, and desires. Some of these cannot be fulfilled by the legal system. You need to help your client sort through all of this so that he or she understands what is possible through negotiation. The trick is to listen to your client deeply.
This is not a skill that is taught in law school. There are places to go to learn how to listen. I strongly recommend to young lawyers that they take a course in coaching, motivational interviewing, or the like. Learning how to probe the client's true needs and helping the client clarify them is essential in the process of preparing for negotiation.

As you prepare your client for negotiation, be sure to set clear boundaries of responsibility. Who needs to be in the decisional loop? In many cases, the settlement decision affects more than just the direct client. Make sure that you know who has to participate in the decision early on. Have all decision makers and influencers been thoroughly informed about the case, the negotiation, and a range of reasonable outcomes?

Spouses and business partners can easily be forgotten about. It is your job to make sure that they are fully informed, consistent with protecting attorney-client privilege. At the very least, you must inform your client to keep influencers up-to-date on case developments and the negotiation strategy. Again, a letter outlining all of this can be an important protection for you.

Who will be present during the negotiation? Generally speaking, you want all of the decision-makers at the negotiation if the negotiation is in the form of mediation or some other group conference. Sometimes, for strategic or tactical reasons, certain decision-makers might not be physically present. They should be available close by or available by telephone or Skype for consultation as a negotiation unfolds.

Who will have to be present to make a settlement agreement binding? Settlement agreements made during mediation are not binding unless all of the parties have signed the settlement agreement. Therefore, you must take great care to make sure that you know who will have to be present to bind everyone to a deal.

What will be the role of the client during the negotiation? This one is overlooked all the time. Most of the time, you want your client to be an active participant in the negotiation. Sometimes your client will take the lead; sometimes you will take the lead. This should be discussed ahead of time so that there is no confusion over roles during negotiations.

Another related problem has to do with personal accountability. Very few people have the courage to take personal responsibility for their actions. Many times, people will come to lawyers, hoping to shift responsibility for their actions away from themselves. In negotiation, clients are often confronted with the need to take personal responsibility for their actions for the first time. This can be a difficult pill to swallow. A conversation about personal accountability well before negotiation begins is therefore a good idea.

Some clients can become very emotional, often with ample justification. I will give you more information about emotions in the context of decision-making later on. However, recognize that all human beings are 98% emotional and 2% rational. Conflict and stress tend to shut down the prefrontal cortex and activate the emotional centers of the brain. Be prepared to deal with your client’s emotions.

Remember, the best way to win the game is to call it yourself.

Better still, change the game completely.

Douglas E. Noll
Mediator, Author, and
California Lawyer 2012 Attorney of the Year
for Pro Bono Service
Creator of Negotiation Mastery for the Legal Pro –
A new online course in cutting-edge legal negotiation
legalpronegotiator.com

 

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Tune in tonight to the Doug Noll Show 7pm PT. My guest tonight is Judithe Registre, the program director at Plan International USA for the Because I am a Girl campaign, which creates sustainable projects in developing countries to give girls access to the most basic of human rights: clean water, food, healthcare, education, financial security, and protection from violence and exploitation. The lines are open for your questions and comments at   877-474-3302, or Internationally, 01 858-623-0126.

http://Bit.ly/8Sf4m

 

 

Segment 1: Social Justice and Basic Human Rights.

Our guest on this edition of The Doug Noll Show is Judithe Registre, Program Director for the Because I Am a Girl campaign at Plan International USA.  Judithe holds a Master’s degree in Philosophy and Social Policy from American University and a Masters Certificate in Advanced Social Research from Afrikaans University in South Africa, in addition to being a Fellow Alumnus of the Salzburg Seminar, a forum that brings together thinkers and leaders from different global institutions to develop ideas geared towards solving international issues.

 

Judithe was born in Haiti and discovered a passion for justice and social change at a very young age. At 9 she first realized that young girls have to wash, cook, and clean, while young boys got to play. That idea did not resonate well with her. She wanted to understand how society is structured and how people relate to one another, as well as learn about social justice. Judithe defines social justice as the idea that we are all born with innate human rights: education, quality of life, access to food and water, basic things we need to grow up as dignified human beings.

 

Segment 2: Invest In Kids Today.

Judithe has been in some of the most difficult places in the world, one of the most challenging being the  Democratic Republic of Congo. Spending time there taught her the true meaning of trauma. In any post-conflict environment, the population experiences trauma and violence at a greater rate than a mainstream population. We need to take into consideration the trauma that the women and girls in those environments have experienced when we attempt to rebuild their society.

 

The process of healing takes multiple generations. Change happens if we are patient and committed to the long process. The process needs to be centered around the community. If we want to get rid of the problems that occurred 20 years ago, invest in the kids of today. If we educate women and children, change can happen faster than anticipated.

 

The Because I Am a Girl campaign focuses on girls and invests in educating them before they become women. By 2016 they estimate they will have helped 4 million girls with education, financial skills, basic life training, issues of early marriage, and improved maternity health. The heart of addressing women is to address girls before they hit puberty.

 

Segment 3: Steady, Persistent and Consistent Efforts.

In developing or post-conflict countries, when young women start to reach puberty they become objects of reproduction and lose opportunity, whereas when young men reach puberty in those same countries, they gain opportunity. The expectations for boys and girls are very different. If we invest in the girl’s education, her contribution to society will be far greater.

 

Plan International was founded in 1937. They operate in 50 developing countries and have over 600 volunteers all over the world, primarily working with children. They work to ensure education and protection for the rights of kids so they can grow up to become active citizens who hold leadership roles in the community. Their mission is 3-fold: they work at the grassroots level, and at the government level, as well as the international level. Change in any environment is difficult, even when we know change is good for us. Steady, persistent and consistent efforts lead to change.

 

Segment 4: The Discussion Changes.

The moment someone believes they can do something, the moment we start believing that we have the confidence and the intelligence to make something happen…everything changes. When you have a nation of young women and young girls unable to realize their full potential, it prevents that society from realizing its full potential. It goes far beyond the individual girl. When people start recognizing the overall benefits to investing in girls, and that an educated and intelligent woman makes a better partner, mother, and role model as a whole, the discussion changes. Everything changes.

 

To listen to the entire interview:

 

Segment 1

Segment 2

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On the Doug Noll Radio Show Thursday February 21st at 7pm Pacific, Doug interviews International Advocate for Women Judithe Registre, the director of Plan International USA for the Because I Am A Girl Campaign which creates sustainable projects in developing countries to give girls access to the most basic human rights: clean water, food, healthcare, education, and protection from violence and exploitation. The lines are open for questions and comments at  877-474-3302, or Internationally, 01 858-623-0126.

http://Bit.ly/8Sf4m

 

 

This post is about assessing the intangibles of a lawsuit and factoring them into your preparation.

The first thing to realize is that trials are beauty contests. A significant amount of social psychological research has established that jurors form opinions about the case very early in the proceedings. Jury selection and opening statements are the two most important parts of the trial. If you have not convinced the jury by the close of opening statements of the righteousness of your cause, you will probably lose. For the rest of the trial, each juror is going to use the confirmation bias to seek facts that support his or her initial belief. Therefore, you have to assess what kind of story you can tell, and how that story compares to the story that the other side is likely to tell.

You also have to assess how likable your client is and how likable the other guy is. You have to be brutally honest in this process. You want to believe your client and thinking that he or she is going to be liked. However, any warts are going to be magnified intensely in the courtroom.

You also have to assess your experience and opposing counsel's experience. In all likelihood, you have had very little trial experience. Do not be surprised if you are up against a more senior lawyer who also has very little trial experience. I have known senior partners who portray themselves as litigators who have never tried a jury trial.

Experience does count, however. So if your opponent has a lot more trial experience than you do, you have to take that into account. That does not mean that you will lose just because you lack experience. You simply have to factor in that the more experienced trial lawyer is less like to make mistakes that you are.

You can find out a lot about opposing counsel on the Internet. It is amazing what people disclose about themselves in social media, on blogs, in podcast, and videos. It is much more likely that you will get this kind of information about younger lawyers. The vast majority of lawyers in their 60s do not even know what social media is and do not want to mess with it. However, you can still research counsel through verdicts and settlements to see what kinds of verdicts, if any, they have experienced.

Another factor concerns the type of typical juror found in your jurisdiction. You need to think about your best jury and your very worst jury. Some cases lend themselves well to jury trials, while other cases would put a jury to sleep. Think about the kinds of people that live in your community, their political beliefs, their ethnicity, their religious beliefs, their interests, and their hobbies.

You also have to consider who the trial judge might be. If you have a judge assigned for all purposes, as is usually the case in federal court and in some state courts, you will have a pretty good idea of what you are facing. Make a few phone calls to colleagues about their experiences with your judge and learn as much as you can about his or her background, beliefs, biases, and attitudes. Judges are human just like everyone else and are not immune from cognitive biases and decisional distortions. The more you can understand how your judge processes information, the better you can assess what might happen in that court room.

Remember, the best way to win the game is to call it yourself.

Better still, change the game completely.

Douglas E. Noll
Mediator, Author, and
California Lawyer 2012 Attorney of the Year
for Pro Bono Service
Creator of Negotiation Mastery for the Legal Pro –
A new online course in cutting-edge legal negotiation
legalpronegotiator.com

In this post, I want to talk a little bit about the attributes of a master negotiator.
I have mediated thousands of conflicts of all different kinds, both litigated and non-litigated. I have had the opportunity to work with some truly masterful negotiators. There are some uniform attributes and characteristics that are worth keeping in mind as you develop into a powerful, kick ass negotiator.
The first attribute is to recognize that negotiation is a process, not an event. In law school you are taught that the ultimate outcome is either a verdict or a decision on appeal. The focus is on the outcome for the client and not a lot of time is spent on all the processes. Thus, the conversations are around how to avoid mistakes, how to obtain the best outcomes for clients, and the focus is on winning.
In negotiation, the outcome will be defined by how well the process is managed. Master negotiators understand that process determines outcome. Master negotiators will spend considerable time making sure that the process is functioning properly to move the parties towards settlement. In short, master negotiators focus on process.
 Master negotiators also recognize that legal negotiation involves decision-making in the face of great uncertainty and risk. For the client, the stakes of a lawsuit can be very high. No one can predict what a jury will do in any given case. Therefore, sending a dispute to trial for decision is not quite as random as a roulette wheel, but sometimes seems that way.
Master negotiators study disciplines far beyond the law. They want to understand the principles behind cognitive biases and decision-making errors. They understand that emotions drive decisions and therefore knowing about emotions in human brains is just as important as knowing about the applicable principles of law in a case.
Master negotiators also know that negotiation always contains a tension between competition and cooperation. On the one hand, negotiators wish to obtain the best outcome possible for their clients. But if they are too competitive, the negotiation will collapse in impasse. Thus, cooperation is needed. However, if cooperation is to freely given, the possibility of exploitation by the other side is always possible. The master negotiator manages that tension effectively.
The master negotiator cultivates a strategic mindset directed towards helping the client make the best decision possible with an eye towards the deep consequences of that decision in years ahead. Master negotiators recognize hardball players instantly. They have learned how to identify hardball tactics, label them, and deal with them by focusing on the process of negotiation. They do not stoop to emotional, ad hominem attacks or gratuitous comments at the ethics or behaviors of opposing counsel or parties.
Master negotiators also recognize that being a lawyer does not equate to being a master negotiator. Master negotiators have learned that law school teaches analysis based on an adversary ideology. Law school teaches students how to become appellate judges, read appellate decisions, and write appellate memorandums. Generally speaking, those skills are not used in negotiation. Although more law schools are offering elective courses in mediation and even in negotiation, these offerings are considered to be fringe courses. Many law professors do not consider the skills of negotiation to be worthy of instruction in the law curriculum.
Since so much of the law curriculum is based upon the reading and analysis of appellate decisions, litigation is taught as a zero-sum game in which there can only be a winner and a loser. In every case, law students must understand why one side lost, and the other side won. As they distill out the rules of law from the cases, they are indoctrinated in a philosophy that lawyering is about winning cases for clients. The core values of negotiation, which include cooperation, compromise, and collaboration with opposing counsel and parties are not only ignored in law school, they are disdained.
Master negotiators recognize that negotiation outcomes are not always as gratifying as trial outcomes, but neither are they as depressing. Since negotiation involves compromise, there is no high similar to the rush of winning a jury trial. In addition, lawyers do not measure themselves by their skill in negotiation. Rather, they seek reputations for toughness, trial competency, and dogged persistence against all odds. When was the last time you heard a lawyer described as a great negotiator?

Remember, the best way to win the game is to call it yourself.
Better still, change the game completely.

Douglas E. Noll
Mediator, Author, and
California Lawyer 2012 Attorney of the Year
for Pro Bono Service
Creator of Negotiation Mastery for the Legal Pro –
A new online course in cutting-edge legal negotiation
legalpronegotiator.com

Segment 1: Ambiguous Loss: Never Any Closure.
It is rare that we think about how military life can disrupt the career aspirations of its servicemen and women and how coming home from war zones and returning to normal life is difficult for all involved. On this edition of The Doug Noll Show we speak with Stacy Swearengen, founder of www.portablecareerplanning.com, a website to help guide military spouses in their career choices and professional goals.

 

Stacy tells us that there are a multitude of unique challenges to being a military spouse, the most obvious being having to manage a household single-handedly. According to Stacy, when a spouse first leaves there is a learning curve during which you have to learn how to do everything yourself. Then you start to develop the independence, and then the spouse comes back. Finally, there’s the whole process of adjusting to them coming home. Everything feels temporary and there is never any closure. As soon as they’re gone, they’re coming back again, but even when they’re back, they’re not really back (they’re in training or on leave).

 

Segment 2: Emotional Inconsistency.

Military spouses endure great emotional inconsistency. They are very resilient --- there isn’t any choice. The homecoming is extremely emotional, and there is no routine or sense of closure.

 

Segment 3: A Portable Career.

Portable Career Planning is like a moving company for your career. A career is part of a person’s identity. We can pack up our personal things and our household belongings, but what about the intangible things? Every day military spouses choose to put other people first instead of connecting with themselves. It’s easy for them to start losing track of who they are and what they love to do. Stacy discovers what her clients’ passions are and how those passions can translate into a portable career. A “portable career” doesn’t necessarily mean you work from home. It could mean being able to move from city to city, state to state, or even country to country.

 

Segment 4: Passionate Employees.

Stacy is always on the lookout for companies that have telecommuting available or international locations. Statistics show that Military Spouses stay at companies longer than non-Military folks. Generally speaking, Stacy has found that smaller start-ups are technologically savvy and they see the benefits of flexibility or telecommuting. They just want passionate employees, they don’t care if they are military or not.

 

To listen to the entire interview:

 

Segment 1

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In this post, we are going to look at the two fundamental forms of negotiation.

The first form of negotiation, and the one that is most familiar to lawyers, is called distributive negotiation. In distributive negotiation, the parties are negotiating how to divide or redistribute things. Thus, in a lawsuit, negotiation is often about how much money the defendant will pay the plaintiff for the case to go away. This type of negotiation is called distributive because value is being distributed from one party to another.

The second form of negotiation is called integrative negotiation. In integrative negotiation, the parties are looking for ways to expand their options and create value. In contrast to distributive negotiation, integrative bargaining involves problem-solving and value enhancement. An example of integrative negotiation might occur in a lawsuit involving two businesses over breach of contract. While the parties might negotiate for a fixed payment to settle the claim, they might also find a way to expand, and renew, their business relationship so that both sides benefit from the negotiation.

Sometimes you hear the terms zero-sum and win-win. These are important terms to understand in negotiation and are often misused because they are misunderstood.

In a zero-sum situation, the only way that I can gain is if you lose. In other words, there is no way for both of us to come out ahead or be winners. This is the pure definition of competition because in competition, there can only be one winner.

Distributive negotiation is often viewed as a solution to a zero-sum problem. But a zero-sum problem confronts us with a fundamental strategic problem in negotiation. You might have already come across this and wondered about it.

The dilemma is “Do I compete and play hardball?”or “Do I cooperate?”

The problem is this:

If I am too competitive, I will blow a chance for settlement.
But if I am too cooperative, I might give up too much.

This is the fundamental dilemma facing every negotiator.
 
How do I avoid impasse, but not give up everything to get a deal?

Sometimes, a highly cooperative approach, such as integrative negotiation can foster a deal. Other times, a more competitive approach, such as distributive negotiation, is more effective.

The takeaway is that the nature of the problem dictates the negotiation process to be used. As long as the conflict remains centered on things and is not too emotional, distributive negotiation and evaluative mediation will tend to work. However, distributive negotiation is not efficient or effective at high levels of conflict or when emotions are in play. In these kinds of disputes, either traditional or facilitative mediation is often needed to de-escalate the emotions before there can be distributive bargaining. It is important for you to remember these two principles:

•    As long as the conflict remains emotional, integrative negotiation processes are effective and efficient.
•    Integrative negotiation is not efficient or effective at low levels of escalation or when things are solely in play.

You should not be surprised to know that most negotiations involve emotions and most negotiations involve things. Therefore, you must be skilled at both integrative and distributive negotiation. You must also be comfortable with evaluative, traditional, and facilitative mediation processes because a good mediator will use all three in a given process.

Remember, the best way to win the game is to call it yourself.
Better still, change the game completely.

Douglas E. Noll
Mediator, Author, and
California Lawyer 2012 Attorney of the Year
for Pro Bono Service
Creator of Negotiation Mastery for the Legal Pro –
A new online course in cutting-edge legal negotiation
legalpronegotiator.com

 

Segment 1: Navigating a High Failure Rate Environment.

On this edition of The Doug Noll Show we speak with Rebecca Costa, an American sociobiologist who offers a genetic explanation for current events, emerging trends and individual behavior. Rebecca’s first book, The Watchman’s Rattle: A Radical New Theory of Collapse, questions our ability to thrive in the complex world we have created. Her website is http://www.rebeccacosta.com/.

 

When Rebecca lived in Silicon Valley in the 1980’s, she observed the exponential rate at which the pace was moving and came to the conclusion that there was little chance we would be able to keep up with that pace. She says these days we’re all struggling with a high failure rate environment. It’s difficult to sort through all the information that bombards us each day and decide what’s relevant and what’s not. The odds are stacked against us to pick the right career, the right health care program, etc. There is too much information, and the number of wrong choices is exponentially greater than the number of right choices.

 

Evolution is lagging behind what is needed to succeed in society. Our brain is not designed to deal with the complexities and the great amount of information coming toward us each day. It exceeds our physiological and cognitive ability.

 

Segment 2: The History of Human Civilization.

Evolutionary Law says we need to adapt or die. However, we can only adapt at a certain rate. Rebecca sees a consistent pattern throughout history: First civilizations hit a cognitive threshold, where the problems are beyond their “pay grade” and they become gridlocked and unable to act. Next, there is mass confusion among leadership and individuals in the society between what is an empirical fact and an unproven belief. Public policy becomes highly irrational because it’s based on unproven beliefs instead of empirical evidence. Lastly, an event comes along that “does a society in” and the society collapses. This doesn’t mean that everyone dies; it just means that the society breaks into smaller units and then starts to ascend again. This is the history of human civilization.

 

Segment 3: Insight.

So what tools do we have to prevent an ultimate collapse? Rebecca sys for the first time in human history we can use science and medicine to watch what the brain is doing. For instance, scientists recently discovered a third form of problem solving: insight. Insight is the ability to connect two pieces of data in a novel way. Scientists can now predict that a person will have an insight about 300 milliseconds before they actually solve the problem. Our brains need to be consistently exercised and “warmed up” to deal with the complex problems of our day-to-day lives, thus stalling and perhaps preventing an ultimate collapse.

 

Segment 4:  

We are dealing with environmental changes that are beyond what we’re designed to do. We are not designed to respond to a long-term threat. The solution is to try to mitigate and train and catch up the brain. We can turn to neuroscience to help us adapt at a faster rate. We can train our brains and recognize that when we have a complex problem to solve, we need to invest in multiple solutions and expect a high threshold of waste.

  

To listen to the entire interview:

 

Segment 1

Segment 2

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This post  is about your role in negotiation. Negotiation is a strategic communication that involves either making deals or resolving conflicts. We are going to explore these two aspects of negotiation.

Let us start with negotiating business deals. In business deals, the usual goal is for both parties to gain something they did not have before.

In a buy sell negotiation, the buyer is acquiring an asset, such as a business, and the seller is gaining a more liquid asset, such as cash. Likewise, in a joint venture or private equity deal, the investors gaining a position in a company, while the owners are gaining much needed capital.
The question is, what is your role in negotiating a business deal?

Are you to do the deal? Or, are you just to do the documents?

Or, are you to have a role in both aspects of the negotiation?

In many business deals, the clients negotiate between themselves, decide on the essential terms of the deal, and then turn the details over to the lawyers.In these situations, the lawyer's role is to anticipate failure points and document what will happen in worst case situations. Typically, one side will be looking to restrict the consequences of failure, while the other side will be looking to expand the consequences of failure.

For example, in a loan negotiation, the lender will want as much collateral and limiting conditions as it can reasonably obtain to protect against nonpayment in the event of default. The borrower would ideally like a nonrecourse unsecured promissory note that results in no liability in the event of default. The negotiation between the lender and the borrower might be quite brief, while the negotiation between the lawyers over what rights and obligations will be created in the loan documents could be very lengthy.

Clients often complain that lawyers tank deals. There is a certain amount of truth in this complaint because the negotiation between the lawyers can become so competitive that they are unable to agree or compromise on sticking points.When you are negotiating the details on behalf of a client, it therefore becomes important to have constant communication with your client.

Although you might be the expert in secured transactions, for example, you need to be explaining the risks and problems to your client so that you work as a team in deciding what is important and what can be conceded.

The other aspect of negotiation is settling conflicts, especially lawsuits. Very few civil cases go to trial. The only civil trial lawyers that really gain significant trial experience are insurance defense lawyers. Even then, with rare exceptions, a defense lawyer might only try three or four cases a year. For plaintiffs' personal-injury lawyers, trying cases is unprofitable. Thus, the vast majority of personal-injury cases settle. he same is true in other types of civil litigation. Business cases almost always settle, although there are notable exceptions like the Samsung v. Apple case in 2012 when Apple obtained a billion dollar  judgment against Samsung for patent infringement. Most family law cases also resolve through settlement.

The fact of the matter is that litigation is a sport of kings. Very few middle-class people and small businesses can afford the cost and risk of a lawsuit. It is why people buy liability insurance. Consequently, as a lawyer representing a client in a conflict or dispute, you play a major role in negotiating towards resolution of the problem.

In disputes headed for litigation or in litigation, your goal is to manage the risk of loss if you are defending and to optimize gain  if you are prosecuting. Thus, your role is much different settling a case than in negotiating a business deal.

Lawyers generally take a leading role in negotiating settlements of disputes and claims. There are times when the client is actively involved in the negotiation process. In other cases, the client is passive and relies upon you to negotiate the best deal possible.

The most important thing to remember is that clients make the final decision. And they do so only after being informed by the lawyer of the risks and benefits of the settlement.

Remember, the best way to win the game is to call it yourself.
Better still, change the game completely.

Douglas E. Noll
Mediator, Author, and
California Lawyer 2012 Attorney of the Year
for Pro Bono Service
Creator of Negotiation Mastery for the Legal Pro –
A new online course in cutting-edge legal negotiation
legalpronegotiator.com