Harvard Negotiation Law Review

Collaborative Divorce: A Model for Effective Problem-Solving and Prevention

divorceA Review of Forrest S. Mosten, Collaborative Divorce Handbook*
By Thomas D. Barton**

Introduction

Collaborate Divorce Handbook, by Forrest S. Mosten, delivers what its title suggests–a complete, point-by-point practical guide for lawyers wishing to learn about collaborative divorce techniques.  But this book also offers much more, and to a far broader readership.  It can inspire all lawyers to adopt a stronger, more effective, and more personal approach to clients.  It can inform related professionals–mental health specialists, coaches, and financial advisors–about the process of collaborative divorce and how they may best join in it.  Finally, the warmth and depth of human understanding in this book can prompt reflection on personal values, professional satisfaction, and the possibility of peacemaking.

The Handbook is the latest chapter in Mosten’s life-long quest to make legal services and counseling more accessible and helpful to the average person.  He pioneered the establishment of legal clinics and unbundling of legal services and has been a leading proponent of Preventive Law, problem solving, and mediation.  He has encountered a broad range of human disagreements and observed their attempted resolution using a variety of alternative techniques.  His reflections on the values and principles underpinning Collaborative Law are thereby uniquely mature, and can be applied throughout legal practice. His eloquent and comprehensive approach offers significant benefits for clients and lawyers alike.  Quoting Pauline Tesler, Mosten speaks of changing the understanding of a lawyer’s role, the relationship with one’s client, the ways of approaching other lawyers and parties, and the structure and commitment to the negotiation process.3

Mosten organizes the Handbook as one would approach the counseling of a client: with respect for the reader’s needs, choices, and intelligence.  Mosten certainly instructs, but he also wants us to succeed. Always open-minded and objective, he compares and contrasts a variety of alternative models to collaborative divorce.  He realistically offers vital advice for how to talk with one’s client as well as one’s counterpart attorney about the collaborative approach when one or both may be resistant to its structure or underlying assumptions.  The book supplies dozens of checklists and tips, together with a supplemental website of testimonials, suggestions, and ways to continue in an organized dialogue with other experienced collaborative practitioners.

Understanding Collaborative Law and Building a Collaborative Practice

In exploring Collaborative Law,4 Mosten addresses three basic questions: (1) what is collaborative law; (2) how is it done; and (3) how can the reader get started in a collaborative practice?

The “what” is a philosophy and basic method that unite varying models of Collaborative Divorce.  The philosophy is that collaboration and settlement should be the “last step along the dispute resolution highway,”5 not a mere way-station before the expected destination in court.  If the divorcing parties feel they must resort to court, the collaborative lawyers have essentially failed.  Although subject to variation, the basic method of Collaborative Divorce is a breath-taking innovation.  Attorneys representing both of the divorcing parties agree that they will withdraw from further representation if a settlement is not reached.6 In other words, the attorneys may not represent a collaborative client in court.  Their work is basically at an end.  Mosten quotes Ousky and Webb: “Collaborative attorneys actually sign a contract that commits them–along with you and your spouse–to reaching a settlement.  The contract, called a Participation Agreement, requires the attorneys to withdraw from your case if they can’t resolve all of your issues out of court.”7

The “how” is equal in importance to the “what,” says Mosten.  This is part of the collaborative attitude.8 The what and how begin to merge in this book, a refreshing approach that values the means for achieving ends, as well as the ends themselves.  Concern for the method by which a settlement is obtained pays rich dividends in the future relationships of the parties and their children.  Mosten writes:

The how is the way the parties speak with each other when discussing concerns that each has with the other.  Traditional lawyers often focus on the terms of parenting and financial agreements and try to avoid discussing the how or assume that such toxic and damaging spousal interaction will never change.  Collaborative lawyers believe that by helping parties with the process, lasting settlements occur more frequently and with much reduced transaction costs.9

The collaborative lawyer uses transparency and candor10 to expand both the framing of the problem and the cooperative spirit by which it can be addressed:

The way a problem is defined often dictates its outcome.  Adversarial lawyers . . . may limit the problem and its solution to mirror how a judge would decide the matter if litigated . . . . Collaborative lawyers believe that the legal outcome is just one of the many ways to define the problem.  By opening up new creative perspectives of how a solution may be addressed, settlements can be reached by widening the scope of the problem to include the relationships of all members of the family, how the parties will emotionally handle any solution, and how the result will affect finances now and in the future.11

Once the aims of successful divorce representation are opened up, so also is the method that can and should be used.  This is introduced under the topic of “Values and Principles of Collaborative Law.”  Mosten introduces, and later elaborates, on each of these tenets:

  • Respect and dignity for the other party and other professionals
  • Direct and open communication with the other party and professionals;
  • Voluntary and full disclosure of relevant information and documents necessary to make agreements;
  • Commitment to the healing of the family; [and]
  • Use of interest-based negotiation to try to meet the needs of both parties.12

Lawyers should not take for granted that these attitudes generally prevail in divorce representation or in other areas of practice.  The adversarial system is primarily designed for achieving truth, not for facilitating strong future relationships.  But the adversarial system is the foundation of Anglo-American court procedures, as well as of traditional thinking about lawyers’ professional responsibility.  Indeed, one key element in Collaborative Law practice has raised some legal ethical concerns.  It is the commitment made by collaborative lawyers to refrain from representing clients in court, should settlement negotiations stall or fail.  As Mosten explains , the participation agreement can be a private agreement among parties and professionals or a court order.  This agreement is signed in addition to separate engagement agreements between each client and each professional.  It is important for all parties to understand the agreement terms.  If either party terminates the collaborative process or participates in adversary proceedings in violation of this agreement, the attorneys and all other collaborative professionals should not continue representing the parties, and new attorneys and professionals should be hired.13

In requiring the lawyers to withdraw from further representation in the event that the issues cannot be resolved out of court, some feel that the pressure on collaborative lawyers to settle is simply too strong.  They feel the client’s interest could be compromised by the lawyer’s felt need to continue the representation.  Some others are uncomfortable with the possibility of one lawyer forcing a withdrawal of another attorney’s representation.14 Mosten is straight-forward in his defense that lawyers using this “disqualification” clause remain within the traditional responsibilities to the client:

If you serve as a lawyer for a client who decides to use collaborative divorce, your client is entitled to the same professional obligations of competence and loyalty to which you would [be] obligated in any other lawyer arrangement.  In concrete terms, this means that you have a duty to pursue the client’s objectives, protect your client from financial harm and legal exposure, inform your client of legal rights, produce competent work, keep all attorney-client communications confidential, avoid conflicts of interest, and ensure that your fees are fair and that clients understand them.  Although your approach may differ from the traditional model, you are still a lawyer.15

For additional help, Mosten also supplies a section entitled “Questions and Answers About Ethical and Competent Service,” which addresses issues arising for lawyers living in states both with and without specific collaborative enabling statutes.16

Furthermore, says Mosten, responsible practice requires that an attorney walk a new client step-by-step through the process of obtaining an informed consent of a client, explaining each of the alternative models of representation that are available.  This should be done even if the lawyer is not willing to represent the client under one or more of those alternatives.17 Mosten supplies a well-organized template to direct this discussion, entitled “A Guide for Discussion with Clients on Collaborative Practice.”18 Each of the various aspects of alternatives of collaborative representation is shown in a column, parallel to which are additional columns describing first the benefits, and then the risks, of those choices.19

Included in one row of the template, for example, is an entry marked “Trained Collaborative Professionals.”  That appears because the collaborative model does not assume mere collaboration among lawyers and clients.  Included also in the idea of Collaborative Divorce is participation by one or more other professionals: psychologists, child specialists, divorce coaches, mediators, and financial planners.  The family is seen as a system comprised of a variety of people and needs, present and future, not all of which are necessarily best addressed by lawyers.

The particular roles and responsibilities of each of these specialists are valuably analyzed.20 In considering how those other professionals may be used, however, Mosten again does not urge one particular model.  Instead, he describes alternative structures, compares their advantages and shortcomings, and stresses choice, practicality, and flexibility.  This part of the Handbook is especially useful for lawyers who may be inexperienced in how to work with other professionals.  Mediators, coaches, psychologists and financial analysts involved in divorce work would also benefit greatly from the dozens of practical tips as well as broad understanding of collaborative structure that Mosten provides.

Obviously, adding these other professionals increases the cost of forging a divorce settlement, a concern for both the lawyers and the parties who must ultimately bear those costs.  On the positive side, this team approach still is likely to be less expensive than resort to litigation.21 Furthermore, the resulting agreement and more positive relationships may prevent many future problems with unknown but potentially substantial costs.  On the other hand, “there appears to be no data showing [Collaborative Divorce] is less expensive than traditional lawyer-negotiated settlements . . . and no data comparing the cost of collaborative divorce to mediation, even with consulting attorneys.”22 That raises at least two issues.  First, how should one discuss these costs with a client so that informed consent is reached?  And second, what steps may be taken to reduce the costs of using collaboration, especially with a full interdisciplinary team?

On the first issue, Mosten’s informed consent template sets out the benefits and risks to the client.  On the benefits side,

You and your spouse may benefit from using a team of collaborative professionals with different skills.  Collaborative professionals usually have had special training to help promote constructive settlements.  By investing the time and money for professional training, collaborative professionals demonstrate a commitment to constructive negotiation.23

The risk, however, is that “[y]ou or your spouse may feel some pressure to use more professionals than you want or feel that you can afford.”24

As possible mitigation of some of those costs as well as to broaden the choice and effectiveness of the collaborative process, Mosten includes analysis for which he is perhaps uniquely qualified.  He draws upon his years of varied experience in the chapter entitled “How Collaborative Divorce Works with Mediation and Unbundled Legal Services.”25 Here, Mosten describes how “mediation can be a partner with collaborative divorce”26 and how unbundling is an inherent, but flexible part of collaborative lawyering.

Mediation, of course, is a well-known process in which lawyers may act in the role of either the neutral mediator or as the representative of a party engaged in mediation.  Mosten systematically sets out a broad variety of ways in which mediation could be used to augment the collaborative approach, or as an alternative to it.  In each variation, Mosten describes the differing roles that could usefully be played by the lawyer.

Although expensive, “having collaborative representatives plus a mediator may be the best of all worlds . . . . ”27 “Many clients want to use the neutrality of mediation but also want the advice and protection of an attorney who would both be mediation friendly and supportive of it and affordable.”28 Mediation could, for example, be a useful adjunct to collaborative divorce at the beginning of the process.  Mosten describes this possibility from the client’s perspective:

If you arrange for a mediator to join the collaborative process from (or near) the beginning, you may design a process that helps your clients have it all ways.  Your client gets your support, advice, and feeling of your protection, and the other party gets similarly taken care of by the other collaborative lawyer or team.  At the same time, the mediator can set a neutral and safe atmosphere while playing a more jarring role as agent of reality, testing the parties’ positions and trying to gain movement toward consensus and a result that both parties can live with.29

Alternatively, mediation can be useful if problems develop, or to resolve conflicts among the various professionals.30 Mosten explains the common-sense nature of this:  Often you and your collaborative partner can reach agreement without a mediator.  However, if trouble develops, you need to stress the mind-set: “It is not a choice between the collaborative process and litigation.  It is a choice between the current structure of the collaborative process that is not resulting in an agreement and the challenge of finding a workable new structure that will get the job done .”31 Therefore, rather than terminate the collaborative process, disband the collaborative professional team, and require the parties to obtain litigation counsel to ready themselves for a courthouse battle, you can build in mediation as the fail-safe logical next step if either or both parties are ready to terminate the collaborative process.32

Unbundling is a less familiar technique, but it can help trim the costs for a client who wants a collaborative divorce process:

In unbundling . . . the client is in charge of selecting one or several discrete lawyering tasks contained with the full-service package.  The client specifically provides for which services the attorney will provide, how extensive the services will be, and how to determine the communication and decision-making control between the client and the attorney.33

As Mosten describes it, attorneys outside of the collaborative context can separate out various services like advice, research, factual collection and investigation, drafting, negotiation, and court appearances.34 Those aspects that a client feels capable of undertaking alone, or with the lawyer as a background coach, can be removed from the formal scope of representation (and billing).

Interestingly, relatively little experimentation with unbundling has occurred as of yet within the collaborative divorce process.35 As Mosten puts it, to date “the growth of collaborative divorce has been among clients who otherwise can afford lawyers, and very few collaborative divorce professionals have focused on ways to penetrate the underserved and otherwise unrepresented market.”36

Conclusion

Mosten delivers a wealth of information and advice, most of which cannot be discussed in this short review.  Certainly Collaborative Divorce is growing quickly, and Mosten’s Handbook is essential reading for any family specialist, regardless of legal training.  Beyond that, any lawyer interested in the emerging paradigm shift in legal thinking and method that several writers have identified can get a rich sense of its attributes through Mosten’s work.  Finally, those who believe in the power of empathy, reason, and respectful communication–values that historically gave rise to the Rule of Law–can be encouraged from this book.  Even in one of life’s most difficult, intimate, and emotional settings–the dissolution of a family–Mosten shows that lawyers can play an important role in promoting peaceful and productive transitions.

* Forrest S. Mosten, Collaborative Divorce Handbook: Helping Families Without Going to Court (Jossey-Bass, 2009) [hereinafter Handbook].

** Louis and Herminone Brown Professor of Law, California Western School of Law.

3 Handbook, supra note 1, at 6, 7.

4 “Collaborative Law” is typically used as a synonym phrase for “Collaborative Divorce” because to date the model of collaborating lawyers representing different parties has been employed almost exclusively in divorce settings.  Theoretically, however, the attitudes and skills underpinning collaborative divorce could begin to be employed toward resolving legal issues beyond divorce or family law.

5 Handbook, supra note 1, at 8.

6 Id. at 22, 29.

7 Id. at 29, quoting Ronald D. Ousky & Stuart Webb, The Collaborative way to Divorce 6 (2006).

8 Id. at 14.

9 Id.

10 Id. at 15.

11 Id. at 14.

12 Id. at 21.

13 Id. at 29.

14 For a thorough and insightful analysis of the ethical implications of various permutations of disqualification clauses in Collaborative Agreements, see Scott R. Peppet, The Ethics of Collaborative Law, 2008 J. Disp. Resol. 131 (2008).

15 Handbook., supra note 1, at 45, 46.

16 Id. at 140-145.

17 Id. at 129, 130.

18 Id. at 146-150.

19 Id.

20 Id. at 52-58.

21 Id. at 64.

22 Id.

23 Id. at 147.

24 Id.

25 Id. at 59-77.

26 Id. at 64.

27 Id. at 68.

28 Id.

29 Id. at 74.

30 Id. at 75-76.

31 Id. at 75.

32 Id.

33 Id. at 59-60.

34 Id. at 61-62.

35 Id. at 64.

36 Id.

Originally published to HNLR Online on Dec. 28, 2009.

Decisional Errors – On the Field, On the Bench, In Negotiations

fullscreen-capture-1112009-82720-pmbmpThe Question is Not Whether Humans Make Decisional Errors, But How to Compensate for Them

By Donald R. Philbin, Jr.

ESPN recently dubbed baseball umpire Tim McClelland’s missed calls in Game 4 of the American League playoffs as “the worst umpiring performance at an Angels games since Leslie Nielsen in ‘The Naked Gun.’”1 While his mistakes were not outcome determinative, they rekindled calls for the use of instant replay.

Those of us who have spent time with disputants were not surprised.  As New York Yankee Derek Jeter put it: “Umpires are human.  They make mistakes sometimes.”2 We routinely anticipate errors and design systemic checks to identify and address them.  Appellate courts and appellate arbitration panels, like instant replay, owe their existence to the need for second (or third) looks.

In fact, the ultimate second-looker famously analogized the roll of judges to umpires in his confirmation hearings.  Chief Justice John G. Roberts of the United States Supreme Court said, “Judges are like umpires . . . Umpires don’t make the rules; they apply them.”3

In a takeoff from Malcolm Gladwell’s best-selling book Blink, Professor Chris Guthrie drilled into judicial error rates in Blinking on the Bench: How Judges Decide Cases, 93 Cornell L. Rev. 1 (2007).  There, law professors asked a large group of trial judges to respond to a three question survey at a judicial conference. Each question has an intuitive, snap answer (a “blink”) and another analytical answer that might be the result of a reasoned opinion. Perhaps unfairly, the questions were not application of law to fact questions that judges might face at work, but analytical quizzes reminiscent of the SAT:

1.       A bat and a ball cost $1.10 in total. The bat costs $1.00 more than the ball. How much does the ball cost?  5 (not 10) cents

2.       If it takes 5 machines 5 minutes to make 5 widgets, how long would it take 100 machines to make 100 widgets?  5 (not 100) minutes

3.       In a lake, there is a patch of lily pads. Every day, the patch doubles in size. If it takes 48 days for the patch to cover the entire lake, how long would it take for the patch to cover half the lake? 47 (not 24) days

The authors reported a 1.23 mean, but parties unable to settle out of court may be more interested in the fact that 31% of the responding judges did not get any of the questions right. There may be inherent problems with this and any survey. The judges may not have put much effort into the break-time quiz at their information packed conference and the questions do not approximate what they are asked to do on the bench. But that is little consolation to those on the “wrong end” of a judgment they forced by not making their own deal in mediation.

Another major study concluded that even parties advised by experienced litigators are not above error.4 Comparing actual trial results with rejected pre-trial settlement offers in more than 4,500 cases and 9,000 settlement decisions made during a 44-year period, the study found that 61% of plaintiffs and 21% – 24% of defendants obtained an award at trial that was the same or worse than the result that could have been achieved by accepting their opponent’s pre-trial settlement proposal. Yet while plaintiffs tend to make more errors in their estimates more frequently, defendants do so with greater severity. When a plaintiff misses the mark, she is only off by an average $43,100. The defendant misses less frequently, but the verdict is 26 times the last offer when he does: $1,140,000.

Psychologists have long taught us that people with exactly the same information reach different conclusions.  Buyers rarely want to pay as much as sellers demand, whether negotiating the sale of a house, car, or lawsuit.  It’s largely a matter of assigned position. But the magnitude of the decisional error is telling.  Subjects asked to price a generic coffee cup for sale assigned it a value of $7.12. Buyers initially offered $2.88 for the same cup – 2.5 times less.4

These studies confirm and quantify what we know intuitively:  people (including umpires, judges, litigants, and others) make mistakes and when litigants are wrong, sometimes they are very wrong. The barrier preventing resolution may not be that litigants can’t see the same solution; it may be that they cannot see the same problem.

Mediation is a commonly used to debias positional assumptions that lead to impasse.  The reality is that we reactively devalue everything our enemy says, even if it would be helpful to us – “that can’t be good for us, or they would not have offered it.”  In fact, a Cold War experiment quantified the magnitude of this reactive devaluation bias. Soviet leader Gorbachev made a proposal to reduce nuclear warheads by one-half, followed by further reductions over time.  Researchers attributed the proposal to President Reagan, a group of unknown strategists, and to Gorbachev himself.  The surprise was not that the group reacted differently to the same proposal depending on its source, but the wide range of difference. When attributed to the U.S. President, 90% reacted favorably. That dropped marginally when attributed to the third-party (80%), but in half (44%) when attributed to the Soviet leader.5

So the surprise is not that an umpire missed a call, it’s how to deal with it systemically.  Like litigants, baseball stakeholders have options, and a quick appellate ruling from the pressbox may be the most expedient here since the full record is easily available.

dptree

Donald R. Philbin, Jr. is an attorney-mediator, negotiation consultant, arbitrator, and Adjunct Professor at Pepperdine University School of Law — Straus Institute for Dispute Resolution. For more info, see http://www.adrtoolbox.com/.

1 Caple, Jim, Umpire errors a real embarrassment, ESPN.com, Oct. 20, 2009, available at http://sports.espn.go.com/mlb/playoffs/2009/columns/story?columnist=caple_jim&id=4581598

2 Id.

3 Bruce Weber, The Deciders: Umpires v. Judges, N.Y. Times, July 11, 2009, at WK1, available at http://www.nytimes.com/2009/07/12/weekinreview/12weber.html?_r=1.

4 Randall L. Kiser, et. al, Let’s Not Make A Deal: An Empirical Study Of Decision-Making In Unsuccessful Settlement Negotiations, 5 J. Empirical Legal Studies 551-91 (Sept. 2008), available at http://www3.interscience.wiley.com/cgi-bin/fulltext/121400491/HTMLSTART.

5 Donald R. Philbin, Jr., The One Minute Manager Prepares for Mediation: A Multidisciplinary Approach to Negotiation Preparation, 13 Harv. Negot. L. Rev. 249 (2008), available at http://adrtoolbox.com/docs/HNLR_Philbin.pdf

Originally published to HNLR Online on Nov. 1, 2009.

Power Differentials in Negotiation: Don’t Let ’em Push You Around

knight-queenBy Stephen Frenkel

Participants in MWI’s Collaborative Negotiation Trainings often ask how they should handle significant power differentials. Most frequently, this question is asked by those who perceive themselves to be in a position of lower power. “A collaborative approach is all well and good,” they say, “but what happens when the other side doesn’t need to buy into that approach because they have the upper hand?”

My first approach is to challenge them on the assumption that they have little or no power in their negotiations. Negotiators often see the “grass as greener on the other side” and, in our experience (having worked with both sides of the table), we find negotiators most often buy into the false assumption that they are the more vulnerable party.

It’s essential to point out that, even if one party has less power by certain standards (resources, level of influence, etc.) they still have some power which can be leveraged. When we consider that the entire purpose of a negotiation is to create and extract as much value as possible from the combined experience or resources of all players, this becomes more apparent. After all, if either party could go it alone, why would they be negotiating with each other in the first place? They’re negotiating because they need each other (or could at least see the possibility of benefiting from each other) in some form or fashion. In other words, they’re already aware that the value that can be created between them is greater than the value they can create on their own.

Our challenge is to make this understanding explicit. We must confirm that both parties recognize the value of taking a collaborative approach to negotiating and, through this confirmation, incentivize them to continue conversations in a productive manner that enables both parties to benefit from the interaction. We build our capacity to do this through systematic pre-negotiation preparation that takes the following into account:

Effective preparation begins with an analysis of your and their Interests (i.e., their needs, concerns, goals, and fears). Define what’s important to them and ask yourself – how does working with you meet those needs better than working with any of your competitors? Though many choose to focus on price, I’d caution you against this. Price wars tend to do little but drive down the bottom line for your entire industry and train your negotiating counterpart to threaten to walk so you’ll give in. Rather, shift the focus to the other matters that are important to them: customer service, access, time to market, quality of product or services, payment terms, and other tangible or intangible aspects of the deal that make up the total value of the arrangement.

It’s vital to find out what’s important to your counterpart and to articulate, however you can, how you meet those needs better than anyone else they might work with. This is essentially your value proposition. In this way, you make yourself as indispensable as possible and limit their power as they realize that they need you as much as you need them or that they benefit more from your involvement and contribution than from anyone else’s. You’re no longer a “commodity;” you’re a rare exception that brings more value to the partnership than anyone else in the field.

Second, at the same time that you’re articulating your value proposition to them and therefore limiting the attraction of their Alternatives (i.e. what they’ll do to meet their needs if they don’t come to agreement with you), you should be researching and improving your own Alternatives. Who else could you meet with and work with that would satisfy your Interests as well as your counterpart can? Unfortunately, in instances such as business development in which you’re already pursuing other business regardless, Alternatives seem limited. In these instances, you can’t necessarily find a replacement (as you could in a negotiation over a car). Admittedly, however, should you happen to win all other business pursuits, you become much less “desperate” for theirs.

Knowing how you define success, and what you’d do if you don’t reach agreement, can prepare you to walk away if the proposed outcome does not meet your needs. Furthermore, if they’re pushing unfavorable terms (such as unreasonable risk or liability without appropriate rewards), knowing you have the Alternative of walking away and turning down business that’s potentially harmful to you can be empowering in and of itself.

This brings us to our third source of power in negotiation – Objective Standards. Objective Standards are benchmarks, industry norms, precedents, and other ways that negotiators determine if an idea or potential resolution is fair. Researching Objective Standards and raising them at appropriate times can protect you from susceptibility to unreasonable requests. You should know what’s fair – as determined not by you or your counterpart, but by others – your industry, laws, expert opinions, and other facts aren’t capable of being manipulated by either you or your counterpart. Understanding what’s fair and reasonable and having the capability to inform yourself and your counterpart on what’s “reasonable” is a source of power.

In conjunction with the Objective Standards you raise, it’s important to Communicate your level of Commitment and the consequences for them and for your Relationship should they try to coerce you to accept unfavorable terms. Help your counterpart take a long-term view, pointing out the short-term benefits of their taking advantage of their power as well as the long term consequences – which can include but are not limited to: a damaged relationship, your looking to extract value elsewhere in the process, both of you developing a damaged reputation for business in your industry, etc. It’s important for your counterpart to realize that a bad deal for you is essentially a bad deal for them.

Once it’s clear that you’re interested in a deal that’s fair, reasonable, durable and sustainable, together you can generate the Options that satisfy both of your needs. Your success depends not only on your ability to prepare for the negotiation and to execute it effectively, but also on your ability to engage with your counterparts and to educate them on the value of taking a collaborative approach. Securing a commitment from your counterpart to negotiate collaboratively is a critical first step in dealing with perceived power imbalances. Negotiations should be viewed as an opportunity for sustained partnership generation and long-term value creation. Failing to persuade your counterpart to negotiate collaboratively with you will result in outcomes that are based not on the strength of your combined ideas, but rather on who can exert more power over the other. Whether either of you realize it at the time or not ,this results in multiple casualties over the long-term.

Stephen Frenkel is the Director of Negotiation Programs at MWI, a negotiation training and consulting firm based in Boston, Massachusetts. Stephen can be reached at sfrenkel@mwi.org or at 800-348-4888 x24. More information about MWI can be found at www.mwi.org/negotiation.

Originally published to HNLR Online on Oct. 21, 2009.

Settlement And Justice For All

DOJBy Robert C. Bordone & Matthew J. Smith

Recently the Justice Department announced that it had entered into a $2.3 billion settlement agreement with pharmaceutical colossus Pfizer, bringing to a close a four year investigation alleging that Pfizer had illegally marketed and promoted the painkiller Bextra as a remedy for conditions that had not been approved by the FDA. As the federal and state prosecutors involved in the case celebrated the largest health care fraud settlement in U.S. history, a small but vocal contingent of legal academics, prosecutors, and citizen groups lambasted the outcome, insisting that only a proper trial and jury verdict could do justice in such an important and high profile case.

We disagree. [Read more…]

Systems for Dealing with Conflict and Learning from Conflict—Options for Complaint-Handling: an Illustrative Case

chessBy Brian Bloch, David Miller, and Mary Rowe

The phone rings in the Ombuds Office[1]. A Ms. Lee is telephoning the ombudsman from far away. Lee is a department head in our organization who is temporarily assigned overseas. She says that a colleague, Ms. Dula, insisted that Ms. Lee call the Ombudsman immediately. Ms. Lee says that Ms. Dula noticed her crying in the bathroom, listened for a while, and then Ms. Dula insisted that Ms. Lee must consult with someone. The Ombudsman seemed to be the least threatening option.

In the Ombuds Office we do not know what we will hear. A case introduced in such a way might be about any very delicate issue. The central concern could be cruel, closed-door humiliation by a supervisor or mentor. It could be racial or religious hatred or sexual abuse or someone with an obsession. It might be suspicion or knowledge that a powerful person has misused resources, embezzled money or committed fraud. It could be fear of violence or gross safety violations. Most delicate cases include several different issues; perceived humiliation, intimidation and conflicts of interest are often part of a complaint, and so are allegations of multiple infractions of policies and rules.

It is also possible that we will hear perceptions of fact that turn out not to accord with reality. As one of our colleagues, Howard Gadlin, says, “If an organization has an Ombuds Office that is really trusted, and whose confidentiality is actually believed in, then you get people coming forward who have ‘no case’ at all.” So we try hard to maintain professional discipline and due caution.

The caller is often afraid, very upset and feeling trapped in her or his situation. For example, the alleged offender may be powerful and charismatic, with many connections. The alleged offender might be a senior leader, a major donor or customer, or someone who controls the future of the complainant. A complainant may be afraid to let her family know about her problem if it seems to reflect on her own behavior, for example her chastity. A complainant might be a temporary worker or contractor who risks his visa and his family’s future if he loses his job.

A caller may believe that she cannot realistically make a formal complaint, because she lacks conclusive proof of the offense. Or a caller may feel humiliated even to talk about what happened, if he thinks he should have been able to deal with a problem on his own. Many callers blame themselves. Many callers can see no way out, and can feel things getting worse and worse. “I have let this go on far too long,” says one or another caller, and sometimes the ombudsman silently agrees.

Ombudsmen know that people are often puzzled that they or others have not taken action in apparently egregious circumstances. Our experience is that only a relatively small proportion of the population is comfortable with formal actions (although, importantly, some in this group are satisfied only by formal investigations and formal action.) But most people, most of the time, are quite reluctant to act on the spot, or report unacceptable behavior, if they believe this will result in formal action. This is one of the reasons why options are needed in a complaint system.

What might the ombudsman do? One would be as empathic as possible and set aside whatever time was necessary to listen and talk with Ms. Lee. At whatever moment the ombudsman begins to speak—sometimes one simply listens for a period of time—an ombudsman would often begin by explaining confidentiality, neutrality, the informal nature of the Ombuds Office—we almost never make management decisions—and the independence of the office.

Typically we make a major point about confidentiality with a caller, and we think a lot about it, ourselves. The International Ombudsman Association’s Code of Ethics[2] states: “The ombudsman, as a designated neutral, has the responsibility of maintaining strict confidentiality concerning matters that are brought to his/ her attention unless given permission to do otherwise. The only exception, at the sole discretion of the ombudsman, is where there appears to be imminent risk of serious harm.” We will always be thinking whether there may be imminent risk of serious harm to the caller, or to someone else. And we will always be thinking about the options that exist within our conflict management systems.

Whatever Ms. Lee’s concern may be, we would try to help her to consider that she does in fact have options and some hope. However insufficient to her account of fear and perhaps injury, there may be some options to help her at least a little, in dealing with her situation. Together with her, we would look for ideas, perhaps including:

1. Possibly Ms. Lee does not have to take any immediate action. She may be able to find informal support from Ms. Dula or others—perhaps from a member of her family back home; from social workers, health care, legal and religious advisers; a mentor in the organization. We would ask if she has consulted anyone else, and will try to develop ideas about other trustworthy people who could help her if she wants time to think about her options.

2. Ms. Lee and the ombudsman might discuss possibilities for her to get a little time off, if that would be helpful, or to come back home if she is away from home. If she says her situation is untenable, and also is unwilling to choose another option below, Ms. Lee and the ombudsman could discuss possibilities for a transfer, in case that is possible, perhaps to another department or another country. In some situations Ms. Lee might consider a formal complaint after she has safely left the situation. (If the complainant feels strongly about having to leave, the ombudsman may be mentally adding this issue to the list of concerns to consider in the case. That is, is it possible that the complainant is being driven out? Or that she is fleeing a situation where she herself has behaved badly? Or both?)

3. In some situations, the ombudsman may be able to help by explaining relevant policies or procedures that were unknown to Ms. Lee, or hard to understand. In our experience very few managers and employees actually know the rules and policies of their organization. In addition, many do not understand the local cultures and cross-cultural “common laws” that obtain in most organizations. Thus a discussion of norms and expectations and rules may be helpful—in affirming her feelings, or helping her understand why some kinds of supervisory behavior are in fact considered acceptable—or both. (Please see also the accompanying article by David Miller on the importance of codes of conduct.)

4. In some situations, the ombudsman—with permission—may be able to help by making a quick phone call to a relevant compliance office. (See, as examples, Audit, Ethics, HR, EEO, General Counsel, Waste Hazards and other compliance offices on the Chart attached.) It may be possible to alert the relevant compliance office to the facts of the concern, without any mention of Ms. Lee.

5. Ms. Lee might be able to write the facts of a situation or call a Hot Line, without betraying who she is. Anonymous complaints can sometimes bring attention to safety problems, financial misbehavior, and other issues, and the ombudsman or Hot Line will know which person in the organization might do some fact-finding and take action, and where Ms. Lee might direct a factual letter. Some organizations say that they do not act on anonymous complaints. However, in our experience most organizations do take note of truly serious, anonymous communications, at least with respect to issues where investigation is compulsory.

6. We might help Ms. Lee to think about drafting a formal letter to the person she sees as the offender. She might set forth relevant facts as she sees them, and the effects of relevant events. She might state whatever she thinks should happen next, or ask for a remedy, if there is anything for which she would wish to ask. (An example might be to ask for setting things right in the situation she describes.) Just drafting such a letter may help her to deal with grief, and to think through her possible options, and to prepare for any formal option that she may choose.

7. We might also help Ms. Lee to think about writing a letter to her supervisor, if this is not the same person as the offender, setting forth the facts as she sees them, and the help she needs, and also, any concerns about her work. Drafting such a letter might help her to prepare, if eventually she wishes to talk with her supervisor. Discussing such a draft with Ms. Lee may provide the Ombudsman with a chance gently to explore how others might view the situation. And of course, if Lee is willing to communicate with her supervisor, this may help that person and the organization; supervisors can act much more effectively if they have the information they need.

8. Ms. Lee might also consider drafting a formal complaint to appropriate senior managers or compliance officers. This process often takes a little while. As noted above, this may be useful both for collecting the facts, and for being able to cope emotionally with what has been happening. From the ombudsman’s point of view this is also a process that may help Ms. Lee see other sides of the story in cases where that would be appropriate.

9. Ms. Lee and the ombudsman might also discuss what she would wish to say to the (alleged) offender, her own supervisor or to relevant senior managers—if she were to meet with any of them. We could help Ms. Lee to consider what she might want to accomplish at any such meeting and the possible things that the other person might say or do. We might role-play the meeting, with the ombudsman playing the role of the other person. Ms. Lee might consider, at such a meeting, handing in the letter described above. If the organization permits an accompanying person, we might talk about whether she wishes to ask a workplace associate to accompany her.

10. In some cultures and with respect to certain problems, it is possible that Ms. Lee would wish to think about some form of mediation. If Ms. Lee wants to make a request, mediation may be helpful. She might choose the ombudsman as a neutral, or some other person, like a mentor, or a revered older person, or a designated mediator from a Mediation Office.

11. In some situations it might be helpful for the Ombuds Office to ask an appropriate office for an immediate training program, in the region or department where Ms. Lee is working. There might be training about relevant codes of conduct. The training might be about harassment or safety policies; about relevant laws of the country; about resources available for people who perceive unacceptable behavior; or about options for bystanders. Generic actions like these may stop inappropriate behavior. Generic actions sometimes make it easier for people to act on the spot, or come forward, and may thereby help to prevent harm in the future.

12. In some situations the ombudsman might offer to talk with the alleged offender, or with Ms. Lee’s supervisor, or with a relevant senior manager.

13. In some situations, Ms. Lee could register a formal, written complaint with the most senior organizational leader or manager in the country where she is working.

14. We could seek relevant resources that might be available in the country that Ms. Lee is in, for example, resources for women, to see if she wishes to consult with them.

15. Ms. Lee could go to relevant organizational security or outside police officers. Ms. Lee might register a formal complaint with the relevant judicial system.

16. While considering the options above, Ms. Lee might decide, to “wait and see if anything else happens.” In such a case we might suggest that she consider keeping a careful log, with dates and times, noting witnesses, if any, and any additional evidence of events that cause concern. As with option five above, a log of this kind may help someone assess what is happening, may contribute to evidence, and may help the person regain some sense of control over his or her life.

17. Occasionally a person will ask about “how to make a formal record” without using any of the formal options above. The Ombuds Office keeps no case records for the organization, but a person can mail a securely sealed letter to him or herself, or even send such a letter by registered mail, to him or herself. This might later serve as a record.

18. If Ms. Lee mentions other parties in her discussion of concerns, the ombudsman might explore with Ms. Lee what the options might appear to be for these other stakeholders—and to try to think ahead what they might choose to do under various circumstances. In relevant cases, the ombudsman might also ask whether Ms. Lee would want her own call to be disclosed, if another stakeholder were also to call—or whether Ms. Lee would prefer not to give such permission.

Usually it will appear that there are shortcomings for every possible action. It may take Ms. Lee a little time to reach a decision on how to proceed. Ms. Lee might choose more than one option, or plan to try several options sequentially if needed. Maybe none of these options will do, and we are likely to continue to search for another. Especially if Ms. Lee chooses “wait and see,” the ombudsman may follow up and follow up, many times.

Complex cases are often challenging for an ombudsman. We would constantly be trying to maintain objectivity since we often cannot be sure about any of the facts of a situation. We would try to think if we were affirming Ms. Lee’s feelings enough for her not to feel alone, or in despair, without actually being drawn so far into the situation that we have lost objectivity about the facts. Such objectivity is needed both to help her, and to consider the rights and interests of others, and to consider the interests of the organization itself. There are many questions to consider, especially if different nationalities, religious groups and cultures are involved.

The ombudsman must think about whether, if Ms. Lee’s story is true, there may be risk to any other person, and if so is there imminent risk of serious harm. We must also think, whether the story is true or not, about the rights and interests of the alleged offender. And what needs to happen, in the very rare case that the alleged offender does not exist—or has been in another country entirely, and the alleged offense cannot have taken place? It will be clear that we must listen with great care.

The ombudsman will likely consider the role of Ms. Dula—is her knowledge important in a formal sense, for example to back up Ms. Lee? Does she know more than we know she knows? Does her having heard Ms. Lee’s story constitute “notice” to the organization? Will she make trouble or be helpful, if Ms. Lee gets back to her, and ought the idea of getting back to Ms. Dula be discussed with Ms. Lee? Are there others like Ms. Dula with whom Ms. Lee has spoken? Does Ms. Lee know of others who have faced the same kinds of issues? We will try to be thinking about everyone whose interests in our organization (and perhaps outside it) might be affected, and any possible options for meeting those interests.

It is likely to be important to Ms. Lee that our organization provides options for dealing with conflict within our conflict management system. As mentioned above, there are likely to be compliance offices. And, like most organizations, our system has an internal grievance channel that is available to deal with formal complaints, so Ms. Lee has rights-based options available. Although Lee may have little trust in formal grievances against persons of high rank, the high rank of an (alleged) offender will not necessarily influence an investigatory procedure—people in high positions have been brought to justice in the past. However, if Lee believes that she lacks “enough” evidence, this may deter her from lodging a formal grievance. And even if more evidence is forthcoming, she may feel she will be faced with fallout afterwards.

Although she may have little trust, a rights-based option may in fact protect Ms. Lee, especially if it turns out that other people share Ms. Lee’s concerns. And a rights-based option may help to protect the interests of others, which may matter to Lee. And of course, on the other side of the picture, if the alleged offender is innocent, his or her name might get cleared, a fact that is important to a neutral observer.

Ms. Lee’s interest-based options may seem limited if she fears loss of privacy, loss of relationships—and retaliation. However, writing a factual letter to deliver privately to the alleged offender, may appeal to her, especially if she wishes to ask for a remedy. Being able to prove that she delivered such a letter, (for example by registered mail) of which she has kept and mailed herself a copy, may also add a little to “evidence.” Having more evidence might prove helpful to management, if Ms. Lee were later to need to bring a formal complaint.

Ms. Lee’s power-based options may seem risky to her. What if the apparent offender’s boss sides with the offender? What if the superior asks Ms. Lee for evidence and Ms. Lee tells him/her there isn’t any, beyond her own word, and the fact that she spoke with Ms. Dula? But there is also the possibility that Lee’s own supervisor, and the people that know her, may be a source of power for her. She may not have to face her situation alone—others may be able to support her.

Whatever options Ms. Lee chooses, we must also think about the systems implications of her complaint. Presumably we will follow up. Sooner or later there will be an opportunity to address the issues raised above, either through the immediate option chosen by Ms. Lee; or through a training program; via 360 performance evaluations, organizational surveys, and focus groups; or quite likely with permission from Ms. Lee after she is safely out of the situation.

It will be apparent that multi-issue, multi-cohort, cross-gender, cross-culture, multi-jurisdictional cases require great care. Imagine a few facts changing either way, or imagine the case in a different context, and a conflict may change or the options may change.

Organizations need to have a way to let the facts emerge, if only privately, while different actions are considered. This task is, realistically, daunting in modern organizations; many managers are very insulated. However, the complexity of the modern workplace has fortunately led to complaint systems that provide options—for care and fairness and justice—for complainants, for respondents, and also for managers.

Just “having a choice of options” seems to help people to come forward. Brian Bloch’s accompanying article illustrates an example of developing various options, how they may be used, and how they may help individuals and groups.

The existence of an Ombuds Office that is independent and neutral, and off the record, and which knows all the components of the conflict management system, may be able help people in distress take a responsible first step. The accompanying article by Mary Rowe develops these ideas in greater detail.

Click here to download the full article (pdf)

[1] http://www.ombudsassociation.org/standards/ provides the Code of Ethics and Standards of Practice for an organizational ombudsman. In these articles we use the term ombudsman for the practitioner and “Ombuds Office” for the office. Like our professional association, the IOA, we respect the use of various forms of these terms.

[2] Ibid.

Originally published in 14 Harv. Negot. L. Rev. 239 (Winter 2009).

About HNLR

Negotiation, not adjudication, resolves most legal conflicts. However, despite the fact that dispute resolution is central to the practice of law and has become a “hot” topic in legal circles, a gap in the literature persists. “Legal negotiation” — negotiation with lawyers in the middle and legal institutions in the background — has escaped systematic analysis.

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