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The following article originally appeared in the Spring, 2000 issue of "The American Journal of Family Law." We are grateful to editor Ron Brown for his gracious cooperation in agreeing to have us post it here.

"Settling" Your Client into Settlement Negotiations1

The settlement process is one of those periods during a divorce when the lawyer may experience increased turmoil and emotionality in clients. Seeing the spouse's proposal in concrete, written language, four-way conferences, and even discussion between the attorney and his own client about what the client must "give up" are examples of opportunities the client has to harden positions, experience the insult of divorce more intensely, and overreact. The lawyer needs to approach such loaded tasks in ways that guide the client through them so as to maintain a productive focus. To accomplish this, the lawyer must understand the client's feelings, motivations, and reactions, help the client engage the realities of guidelines, negotiation, limits, and courts expectations, and prepare the client for each step as it comes along.

Understanding the Client

The attorney should consider a number of factors to attain a full picture of how the client is functioning in response to the demands of settlement. A lawyer skilled at client management may have considered these factors at earlier periods, perhaps as a way of establishing a working alliance in the beginning stages of the relationship. It is wise to revisit questions about how the client is functioning now because the settlement negotiations may bring back earlier emotional states and concerns that had seemed to calm down.

  1. A dominant or pervasive mood. Shifts in mood are common in divorcing individuals, but an emotional tone that colors all the client's behavior or comments can be a sign of having become stuck in an emotional position. An example is the client who ragefully distorts information about judicial guidelines or offers from the other side and who becomes surly as you prepare for the first four-way conference. This is a client who is caught in a generalized angry response to having to have this settlement discussion at all. Another client might become more hesitant, self-doubtful, and helpless, signaling a retreat into greater fragility as she faces decision points of such magnitude. One shouldn't be overly concerned about clients having reactions; but take notice when all their reactions are determined by a particular mood state.

  2. The client's motivations. As you may have asked yourself upon first meeting a client what she wanted the divorce to accomplish (e.g. to achieve a fair conclusion to the marriage, to punish the spouse, etc.), you may want to ask the same question about the goals of settlement. She may want you to negotiate to intimidate or to coerce the spouse into a capitulation that is more meaningful psychologically than tangibly. It is important for you to understand the motivations in order to plan your negotiating strategy; and you need to know whether you can represent the client's wishes as they are.

  3. The client's expectations. The client's ideas of outcome need to be realistic in terms of what the courts will allow and in terms of what his lawyer is able and willing to do. If the client expects you to deliver ultimata, threaten, and intimidate, and that's not your style, negotiations will not go very well. You hold the big picture about the range of possible outcomes, while the client's expectations may derive from his emotional needs. Knowing how your expectations differ from his can be a key to determining how you discuss it with him.

As you assess these factors you will develop a clearer picture of the client's ability to work cooperatively with you in setting strategies and in negotiating. This is, of course, critical to decisions on your part about how to proceed. The question then is how you go about gathering this information. Doing so requires the lawyer to stand back enough in the conversation to hear accurately, infer, and be able to interpret correctly what the client means . At the heart of it is a set of interviewing techniques and a mind-set known as "active listening."

Begin by using broad, open-ended questions that encourage the client to present her thoughts fully. Strive to listen from a position of neutrality, letting the information come to you. Avoid premature judgments or conclusions, and don't decide too quickly that you know what the client means. Hold open questions about what is or isn't important in the client's communication until you see what comes up repeatedly or as common themes. Note what things bring emotionality (it's likely to be something that is important to the client), and wait patiently through it. Pay attention also to what the client doesn't say - the things you would expect to hear but don't, or missing material. Observe how the client responds to your queries, observations, or behavior. Notice what is retained from one conversation to the next. Conducting interviews in this way provides insights into those issues of mood, motivation, and expectation.

Introducing Reality

One of the matrimonial lawyer's critical roles is that of expert, the one in the working relationship who has the knowledge of laws and legal procedures. It is for this expertise that the client seeks a lawyer (though there is evidence to suggest that interpersonal skills may be even more influential than perceived expertise in the choice of a lawyer2). When the working relationship is successful the client continues to value the lawyer's knowledge. During times of heightened stress and affect, however, the client can bristle, withdraw, or feel betrayed by receiving the very same expert input she's seeking. Settlement can be one of those times. Generally, the two primary ways an attorney achieves that input are by providing information and giving advice. Simple enough when things are going well, you must be more aware of how you carry out those tasks when things are going poorly. There are ways to inform and advise that increase the likelihood that the client will take in and use what you offer.

Informing

More than simply providing knowledge, the dispensing of information to an emotionally wrought individual should be thought of as a strategy to help refocus the client and shore up the working alliance. What the lawyer says, when and how to inform are what define that strategy. There are a few simple guidelines to help the client make use of the information you provide.

  1. Do it repeatedly. Emotional arousal makes for poor memory. Clients become confused and more variable in their views. You cannot repeat critical information too frequently.

  2. Be concrete. Choose your words to present information simply and clearly. Couch it in practical, applied terms that stress how it is advantageous for the client to know this information. Unclear information leaves room for the client to fill in the blanks from her own fantasies.3

  3. Do it sensitively. Wait through the client's expressions of feelings. Present what you have to say empathically, recognizing that it may be difficult or upsetting to hear. Reassure to the degree that you are realistically able to do so. Dispense the information at those times when the client seems to be feeling your support or valuing your help.

  4. Provide information orally and in written form. Having information in more than one form affords the opportunity for the client to receive it more than once and in a form (written) that she can literally hold onto.

  5. Make sure that the information you provide is enough to enable the client to "participate intelligently in deciding the means and objectives of the representation", in this case focusing specifically on the settlement issues.4

Advising

As is the case with informing, advising becomes something different during the emotional moments of settlement than simply being the trusted legal adviser you have been all along. It also becomes a strategy for keeping the client working productively. It too has a few rules that increase the likelihood that the client will follow your advice.

  1. Give advice when you are clear about the client's position. Listen carefully during your discussions until you know what the client does and does not understand, what his positions are, and how clear they are. Don't rush or conclude too soon. When you believe you have heard him fully and know "where he is at", you can tailor your advice to his state of receptivity. (At least you can tailor the delivery, if not the content).

  2. Don't give advice when the client is in a raw emotional state. To do so increases the chance that you won't be heard or will be misinterpreted. It's best at such times to hold it for a future occasion unless some procedural urgency dictates otherwise.

  3. Give it clearly. Translate legal terms into everyday language, and be concrete. Ask the client to give you feedback on what he heard you say, and repeat the advice as needed. Ascertain the client's agreement as to the goals and steps to be taken.

  4. Prepare for advice giving thoughtfully. The best way to insure that the client will take in what you advise is to plan as if you were doing a mini-lecture for a class. Organize your remarks, be clear about what ideas you want to include, and review during your presentation to make sure you cover all your topics. Break down complex legal steps or strategies into simple, concrete terms.5

  5. 5. Give advice in written form as well as orally so that the emotional client can take it home and read it again.6

Preparing the Client

The smoothness of the interaction between the lawyer and client during settlement depends on how well the client understands the goals and tasks, and feels ready to engage them. Since this is a time of increased contact with "the other side," likely including face-to-face meetings with the spouse, it is for many clients a time of revisited wounds and sometimes of straining impulses. Even if they have previously settled into a confident working relationship with the attorney, many clients approach settlement as if they were girding for battle, replacing calm and confidence (or at least comfortable reliance on the lawyer) with renewed trepidation, anticipatory anger, or both. And if they fear the worst, they are often not disappointed. Insulting offers, unreasonable demands, ultimata, threats, and a snarling spouse can push the client over the affective edge. Thorough preparation by the lawyer can be critical.

Differentiate the Steps

You will have been through settlement negotiations enough times that it is second nature to you. Not only do you know what to expect, more importantly you know what not to expect. But this is startlingly new for the client. So you role as a guide becomes essential. To that end you must break down the process for the client into components that she can understand and get behind. Begin by discussing what you and the client want to be the end result, in other words, the settlement goals. This may obviously involve some discussion (and woe to the lawyer who begins negotiations with opposing counsel without being clear about his own client's goals). Once those goals are clear and agreed upon, discuss the starting point for negotiation, what the first offer should include or what the initial offer from the other side might look like. Anticipation is very useful and this is where your familiarity with negotiation can be very informative to the client. Elucidate the steps between starting and concluding. Discuss the negotiation process and give the client examples of different ways you have experienced it. Your goal in this discussion should be to end it with the client being able to tell the difference between where you will begin and where you hope to end up, and understanding that there will be steps in between.

Define Everything

The advice here is similar to that discussed in how to inform and advise, and for the same reason. You want to make sure that the client comprehends fully what is going on. So without belaboring the point, just remember the following steps.

  1. Overemphasize understanding. Slow down the conversation. Break communications down into usable bits. Check that the client has heard correctly and be attentive to his inconsistencies, which you can then address.

  2. Simplify the legalities. Instead of having a general discussion about the nature of pretrial hearings, discuss first what a pretrial memorandum is, then what happens in court, how people respond… and so on. In short, reduce things to their simplest components.

  3. Use lots of concrete examples. Share your knowledge of case studies, describe dialogues between judges and counsel or judges and clients that you have experienced. Remember that under conditions of high stress, abstractness confuses while concreteness clarifies.

  4. Translate legal documents. Go over proposals or other documents with the client. Tell the client what things mean in plain English.

Anticipate Potential Roadblocks, Hot Buttons, and Reactions

This is where the things you have assessed in the section on "Understanding the Client" become important to know. Once you identify the client's mood shifts, expectations, and motivations, you are in a position to anticipate what issues will upset her and in what ways. Discuss that with the client in advance. Saying to a client, "The other attorney tries to intimidate and I think that's going to make you angry", can go a long way toward forestalling the reaction. In situations like this to be forewarned really is to be forearmed.

Rehearse the Client

Nothing enables anticipation better than the opportunity to practice in advance. As you and the client identify those issues and reactions just discussed, you can work together to develop scenarios. Think about various ways that a four-way meeting or a pretrial hearing may play out. Talk about how the client foresees himself feeling and behaving in those circumstances. Have him evaluate how helpful or harmful to his case he will be. If you are comfortable with it, do some role plays in the office. You be the other attorney or the spouse. Relate to the client as you believe these other individuals might. Discuss the client's reactions with him and what it was that elicited them. You can even role play bad and good reactions to the same situations. This kind of exercise involves the client in a very active way in anticipating what's to come and examining his own potential reactions. Most importantly it provides him with alternatives. It can be a very effective tool to have at your disposal.

Conclusion

Settlement is a critical juncture in the legal process of divorce in terms of its potential to intensify client affect and knock the attorney-client relationship off course. By understanding the client's psychological agenda and having available the kinds of tools discussed in this article, the lawyer can better attain what should be the first goal of settlement: to establish and maintain a collaborative, focused alliance with her own client, a necessary condition in order to work effectively with the other side.

End Notes

1 This article is adapted from a presentation of the same name given by the author on Oct. 11, 2001 at the ABA Family Law Section CLE meetings in Vancouver, B.C. Many of the techniques described in it are detailed in Portnoy's The Family Lawyer's Guide to Building Successful Client Relationships (Chicago: American Bar Association, Section of Family Law, 2000).

2 S. Feldman& K. Wilson, The value of interpersonal skills in lawyering, 5(4) Law and Human Behavior, 311-24 (1981).

3 R. Sabalis & G. Ayers, Emotional aspects of divorce and their effects on the legal process, The Family Coordinator, 391-94 (1977).

4 D. Walther, Unique demands and ethical dilemmas arising out of the relationship between the matrimonial lawyer and the client, 9, Journal of the American Academy of Matrimonial Lawyers, 75-92 (1992).

5 S. Lloyd-Bostock, Law in Practice: Applications of Psychology to Legal Decision Making and Legal Skills (Chicago: Lyceum Books, Inc., 1988).

6 G. Hamilton & T. Merrill, What happens emotionally in a divorce and why you should care and how do you know how your client is faring during the divorce litigation? In G. Herman (Ed.), 101+ Practical Solutions for the Family Lawyer (Chicago: American Bar Association, Section of Family Law, 1990).

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