Congratulations to Chris Wrampelmeier for putting together a super Advanced Negotiation Skills program at the 2012 Advanced Family Law Course. In my opinion, several papers are particularly worthy of serious study: Chapter 60.5, Negotiation Ethics, by Chris Wrampelmeir; Chapter 60.7, Negotiating a Family Law Case, by Richard Orsinger; and Chapter 60.5, Negotiation Strategies and Skills by Randall Wilhite.
Chris clearly states that ethics does apply to negotiations and that being ethical during negotiations is not only the moral thing to do, but is also the best way to proceed if you want to be an effective negotiator as well as acquire and preserve a reputation as an ethical lawyer. The paper provides an excellent analysis of the applicable and mandatory Texas Disciplinary Rules of Professional Conduct, including Rule 4.01, Truthfulness in Statements to Others, as the as having the most impact upon statements made in the course of negotiations. “In the course of representing a client a lawyer shall not knowingly fail to disclose a material fact to a third person when disclosure is necessary to avoid making the lawyer a party to a criminal act or knowingly assisting a fraudulent act perpetuated by a client.” Tex. Disciplinary R. Prof’s Conduct 4.01(b), reprinted in Tex. Gov’t Code Ann. tit. 2, subtit. G app. A (Vernon 2005). Chris stresses the importance of negotiating ethically with references to at least four nationally known and well respected authors of books on negotiation.
Richard Orsinger provides us with the knowledge he has gained from 35 years of negotiating family law cases, such as: being prepared, having up-to-date financial information before the mediation so that the time at mediation is dedicated to settlement, not discovery; preparing your first and second offers prior to arriving at mediation; the disadvantages of developing a rigid bottom line position before the mediation starts; when to have a forensic accountant available to you in mediation; and using present value discounts and tax shifting to settle cases (including helpful websites). Additionally, Richard provides a clear explanation of the legal impact via Texas case law and the Texas Family Code of Mediated Settlement Agreements, Informal Settlement Agreements, Partition Agreements and Agreements Incident to Divorce.
Randy Wilhite’s paper on Negotiation Strategies and Skills provides good information about the principles and process of interest based negotiations; the importance of advanced preparation; knowing the strengths and weaknesses of your case and your opponent’s case; looking at the case from your opponent’s perspective; being creative and flexible; not creating unrealistic expectations; maintaining neutrality and balance; establishing control and trust; and dealing with an apparent impasse.
Quote: “Do at least one fun thing each day.” Kevin Fuller.