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Why Common Sense, Compassion and Listening Twice As Much As You Talk Are The Best Negotiation Strategies In Law and Life

by Victoria Pynchon
October 2008

By guest writer Susan Cartier Liebel, from Victoria Pynchon's Settle It Now Negotiation Blog

Victoria Pynchon

Guest Blogger - Susan Cartier Liebel

First, I'm honored to be guest blogging while Vickie is away campaigning her heart out until November 4. I'm also a little intimidated to be here as I can't speak on negotiation with the authority Vickie can, after all she's a distinguished and honored expert on the topic.

However, I can speak on negotiation as a lawyer and a human being dealing with every day life. So in this post I will speak to both the skill sets which lawyers must employ every day of their lives both professionally and personally and the strange phenomenon which exists when lawyers are 'off' the job but are still known to be, or deliberately make others aware of the fact, they are lawyers. 

A lawyer in many ways can never really step away from their professional reputation unless it remains hidden from those we are negotiating with.  And you know exactly what I'm talking about.  How many times have you negotiated with a vendor or customer service representative and when you feel you are losing ground or the other person is not taking you seriously you pull out your trump card, "Well, I'm a lawyer."  What are you expecting?  Be honest.  You are expecting them to take you seriously now with the unspoken threat of legal action if they don't some how immediately capitulate or offer some type of concession to your demand.  You've implied you have this superior intelligence and set of skills and you are not afraid to use it to threaten their job.  How many times have you subtly threatened the same in a letter for a personal situation simply by using your business letterhead?  Gotcha. 

Well, what happens when the reverse is true?  When someone you are negotiating with uses your status as a lawyer to escalate the situation?  They don't treat you in the manner they would a friend or neighbor because they  assume you will be aggressive and immovable on a matter precisely because you are a lawyer?   They fire the first volley and create a situation where you have to defend yourself first by saying, "I'm not here as a lawyer. Why are you threatening me with legal action?"  You are ultimately responsible for de-escalating a situation simply because they know you are a lawyer.

This very thing happened to me with a neighbor and I had to literally work backwards from the implied threat of a law suit simply because I am a lawyer. And in it are some valuable negotiation skills I want to share with you.

I've lived in my home six years.  Both my neighbors are original owners having been there for more than 35 years.  In between my home and my neighbor to the right are 40 foot pine trees and several 60 foot hickory trees which are quite old.  My neighbor approached my husband and said he was going to take down two of 'his' trees, one of which sits on the edge of my property in an 'island' of trees bordered with decorative brick.  When I heard he wanted to take down one of 'my' trees I went to his home and asked why he wanted to take down one of 'my' trees?  He proceeded to tell me it wasn't my tree.  "Then why is it in 'my' island?"  "Because I told the original owner I had no problem with her using her decorative brick around it for aesthetic purposes.  But now I want to take it down."

Well, while this neighbor is a friendly guy, I don't believe he gives away freely that which is his.  He didn't like the leaves blowing into his yard and thought he could get away with claiming it was his.  I asked him if he would show me the property card because I really wasn't sure this was his tree and I really enjoyed the tree. (Up to this point all was done in a very nice, cordial, friendly way.)  His manner immediately changed, "I'm not showing you anything. I don't care if you don't want that tree coming down.  It's mine and it's COMING down.  And I know you're a lawyer and you can sue me if you want.  It will come down when you're not home.  And if you think that's going to bother you, wait till I take down all those pine trees in the spring."  He's screaming this as he points to the beautiful natural fence between our homes. And he has now also upped the stakes.

So, let's talk about the practical aspects of this.  First, he's a neighbor.  Second, he could very well take the tree(s) down when I'm not home and no matter what happens in any litigation, the tree(s) are gone and irreplaceable.  Third, I had no proof, just a very credible suspicion the tree was not his.  Fourth, he was taking the tree down within a week.  Fifth, he was immediately hostile and assumed because I was a lawyer I would threaten suit and use my magical 'superiority' that lay people fear in order to bully him.  He seemed to have taken all options for discussion off the table simply because I was a lawyer. He attacked first.

It would have been very easy to escalate this.  Here's what happened instead:

Me:  (Jack)...let's slow down here.  What's really going on?  This is not like you.  There's more to this.  Is something else bothering you?
Jack: No, nothing.  This is my tree and I'm taking it down whether you like it or not.
Me:  Jack, let's get away from the tree for a minute.  You're really edgy.  I'm not used to seeing you like this.  Is everything, OK?
Jack: (Pause)....Well, my aunt is in the hospital and it doesn't look good.

(This went back and forth for a while as he slowly revealed his aunt's condition, a woman who had raised him, and it was impacting him deeply.)

Me:  Now it makes sense to me why you're so on edge.
Jack: (He brings back the topic of the tree.) "Step on my porch, Susan and you'll see the top of that tree is dead.  I'm willing to pay to take it down."

All of a sudden, there is a subtle acknowledgment the tree isn't his.  But now he has also pointed to a reason I would want the tree to be taken down.  He would pay for its removal now or I could pay several hundred dollars for it later.  He is trying to find consensus..or reaching across the table.

The end result is I agreed to let him pay to take the tree down.  He did all the prep work around the tree and we both interviewed and agreed to the right tree service. After the tree was removed he told my husband he would not take down the pine trees that separated our properties. (I believe, although he planted those trees, he planted them with the agreement of our home's previous owner to do so on the joint border...a little tidbit I remembered from a previous conversation.)  But this gave him a chance to be gracious and conciliatory.

The end result:  I got what I wanted, someone else to pay for the removal of a tree which apparently was dead on top, no more threat of removal of the pine trees, no need to spend money on a property survey, either. He got what he wanted, the 'dirty' tree removed while we both got something else, preservation of our neighborly friendship and working together as a team on joint matters.  This 'partnership' has since extended into other neighborly issues like shopping for home heating oil as a group to have better negotiating power, etc.

It's very hard to un-ring the bell when someone assumes because you are a lawyer you are incapable of not acting like a lawyer in a situation where both parties need to feel like they are on the same footing.  And given most lay people's perceptions of lawyers and the casual way lawyers use their 'trump' card, is it any wonder.

At the heart of negotiation is listening twice as much as you talk and the ability to step into another person's shoes with genuine compassion.  In our 'negotiation' everyone walked away with more than what they wanted without litigation in spite of the fact one of us was a lawyer. This neighbor got a chance to reclaim his good neighbor status because I took the time to figure out the thorn in the lion's paw.

Susan Cartier Liebel is a national coach/consultant working with newly minted or well-seasoned lawyers who want to create and grow their solo practices.  She authors the popular blog Build A Solo Practice, LLC and is the creator of Solo Practice University - a revolutionary web-based educational and professional networking community for lawyers and law students.
 

Biography


Attorney-mediator Victoria Pynchon is a panelist with ADR Services, Inc. Ms. Pynchon was awarded her LL.M Degree in Dispute Resolution from the Straus Institute in May of 2006, after 25 years of complex commercial litigation practice, with sub-specialties in intellectual property, securities fraud, antitrust, insurance coverage, consumer class actions and all types of business torts and contract disputes.  During her two years of full-time neutral practice, she has co-mediated both mandatory and voluntary settlement conferences with Los Angeles Superior Court Judges Alexander Williams, III and Victoria Chaney.  As a result of her work with Judge Chaney in the Complex Court at Central Civil West, Ms. Pynchon has gained significant experience mediating construction defect litigation.  Ms. Pynchon received her J.D., Order of the Coif, from the U.C. Davis School of Law. 



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