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.
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.
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.
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.
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.
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.
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.
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.
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.
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).