Negotiation by Mike Gregory
State Bar of Texas - Collaborative Law Course
Dallas, Texas - March 10-11, 2011
John F. Kennedy said, “Let us never negotiate out of fear. But let us never fear to negotiate.” Negotiation: lawyers do it all the time. Lawyers are negotiators. We negotiate with ourselves, family members, sales people, law partners, clients, opposing lawyers, unrepresented opposing parties, mediators, judges and others. “Kids play their parents off each other. Whether you’re arguing with your spouse, buying a car, or selling a product or a house, you’re negotiating. Yet few have ever learned the strategies and techniques of effective negotiation. Even fewer have mastered them.” Martin Latz, Gain the Edge! Negotiating to Get What You Want (New York: St. Martin’s Press, 2004). Most of the time these negotiations are haphazard, without adequate preparation.
Frequently Asked Questions
I'm so angry right now. I don't think I can talk with my spouse/business partner/opposing party.
The collaborative process takes this into consideration and uses the teams' roles and structured agendas to make talking to the opposing party easier. If you or the other party's anger is so strong that you cannot think straight or act rationally, you may not be a good candidate for the collaborative process. However, communication problems are expected to occur at some point in the process.
I feel I am clearly in the right and that in trial the judge will take my side. Why then should I opt for the collaborative process?
For the most part, family and civil court judges believe it takes two to create a conflict. You may be disappointed if you assume you are "right" and the other party is "wrong." By trying your case before a judge, you risk the Court's not seeing all the problems the same way you do, and you may lose control over decisions affecting the rest of your life. Judges do not have the time most people would like for them to devote to their case. Denton County, Texas, for example, has only six district courts processing thousands of divorces per year.
In the collaborative process, will I still get a collaborative team who will vigorously represent my interests?
Yes. Professionals are trained to advocate their client's interests no matter what the circumstances. Just like any professional you might hire, if you are not satisfied, you are free to retain other counsel.
What is the difference between mediation and the collaborative process?
In mediation, there is one "neutral" professional who helps the disputing parties try to reach an agreement. The parties may or may not have attorneys and the attorneys may or may not be present at the mediation sessions. If there are no attorneys involved, the parties may not have ongoing professional advice regarding their legal rights and settlement options. The mediator cannot give either party legal advice or dictate a decision.
What if both parties fail to reach an agreement through the collaborative process?
When beginning the collaborative process all parties and team members sign a contract that requires the professionals to withdraw if no agreement is reached. The parties are then free to retain other counsel and proceed as they feel appropriate. Their collaborative teams are committed to assist in the transition. Because the early stages of any lawsuit are largely devoted to gathering relevant information, and the Collaborative Process is no exception, the parties, by agreement, can ensure that very little of the time and money expended in the Collaborative Process is wasted in the event that the process fails.
What if we sign an agreement and later the other party doesn't abide by it?
Final agreements reached through the collaborative process are drafted into a court order which, when signed by the judge, becomes an enforceable decree.
I'm willing to give the collaborative process a chance, but how do I convince my spouse?
The collaborative professionals listed on our members pages have independent practices but wish to offer the general public a new way of settling cases. All will exercise the independent professional judgment on behalf of their client, adhere to the Texas State Bar Code of Ethics, and follow proven guidelines for practicing the collaborative process. Encourage your spouse/business partner/opposing party to call and independently ask questions before deciding whether this process is right for him or her.
What if the other party declines the collaborative process? Can I still hire one of the attorneys in the network to represent me?
Yes. All of our attorneys maintain private practices and are experienced litigators.