Only One Place to Negotiate!

Only One Place to Negotiate!

Written by My Collaborative Team President, Edward S. Sachs, ACP

I was on a phone call yesterday with two experienced and excellent Collaborative professionals, one of which does not litigate. They needed to ask me several questions as they were finalizing the Collaborative Marital Settlement Agreement in preparation for a team meeting today. A team meeting which had not been cleared on my calendar and I would be unable to attend.  There were several open issues, one of which related to the date of valuation for the parties’ retirement assets, another related to the sharing of the husband’s future bonuses and the third issue was how outstanding fees would be paid since the parties had already divided most of the cash.

The call went well for the first half hour.  We spent most of this time going over the issues and our recollection of prior discussions about the date of valuation. The second issue relates to the length of time that the wife will share in the husband’s future bonuses. He has agreed to share for three years if he should receive a bonus (he doesn’t always get one). The wife wants him to share the next three bonuses without a time constraint. The third issue was how the final fees, and the current outstanding fees of the wife’s attorney would be paid. Previously the fees were paid from marital funds but most of the liquid assets have already been distributed. 

As we continued our discussion into the second half hour it dawned on me that the two attorneys were now negotiating the issues.  How is this possible in a Collaborative matter?  There were no clients involved in this conversation and the professionals were negotiating the issues!!!!!  And the craziest thing was that it was the non-litigator who was “leading the negotiations.”

Luckily, I was working with two great Collaborative professionals.  As soon as I called a time-out to the conversation and pointed out what was happening both attorneys gasped and said “you are right, Ed.”  I pointed out that if the wife wants something that is beyond what she might normally get, SHE must be the one that asks for it from her husband.  Coming from her it is a request that is backed by her needs, wants and feelings.  That same request coming from an attorney is a position, not an interest.  

It is critical that we keep in mind that ALL NEGOTIATIONS should occur in team meetings. Use your interest-based negotiation skills to get to the real interests of the parties.

The result of that phone call was that the team meeting for today was cancelled. Updated financial statements for the retirement accounts were needed to properly educate the parties.  Most importantly, the team (we have no MHP) decided that if we were going to do this right it was imperative that I attend to serve as the facilitator. Our negotiations will be done as a team.  We will build options, analyze those options and reach a conclusion.    

2 Responses

  1. Thanks for this excellent article, reminding us of the important point you made!

  2. This is so fundamental, but even seasoned Collaborative professionals can fall prey to negotiating on behalf of the clients outside of team meetings without clients present. Attorneys especially have a lot of early conditioning to overcome. Thanks for a great reminder that no matter when or whom, any one of us can recognize this phenomenon as it happens and bring the process back to the right table.

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