Family Lawyering with Planned Early Negotiation: How to Get Good Results for Clients and Make Money

Abstract

Based on interviews with excellent lawyers about how they handle their cases, this article summarizes planned early negotiation (PEN) procedures. Lawyering with PEN really is just good lawyering. Many lawyers do it routinely, though not as consciously, systematically, and efficiently as they might.

Collaborative law and cooperative law are forms of PEN involving agreements between both sides to negotiate. But lawyers (in consultation with their clients) can use a PEN approach unilaterally without such agreements. If lawyers can work efficiently and cooperatively, they can encourage the other side to cooperate while retaining the option to litigate vigorously if needed.

A systematic PEN process begins with an early assessment of the case including (1) the goals and interests of the parties and lawyers, (2) the critical facts, (3) the likely court outcome, and (4) possible agreements that might satisfy both parties. This process involves planning to negotiate at the earliest appropriate time. Counterpart lawyers take affirmative steps to develop a good working relationship from the outset of the case as this can produce many benefits and avoid many problems. Counterpart lawyers plan the logistics of negotiation including such things as the communication process (e.g., in person, by email, or phone), decisions about whether parties would attend negotiation sessions, arrangements for necessary information to be available, and setting an agenda. Lawyers listen well and essentially act as mediators between their clients and the other side though they obviously always remain committed to advancing their own clients’ interests. Part of good listening involves a respectful demonstration of one’s understanding. This can prompt the other side to feel “heard” and take reasonable positions in negotiation. It can also lead to “creating value” by figuring out what each party values and trading things that one party values more than the other.

PEN can increase lawyers' professional satisfaction, generate additional referrals, relieve stress from legal practice, and generate more income. Although making more money through PEN may seem paradoxical, the process is likely to increase client satisfaction and willingness to pay legal fees, thus reducing the amount of lawyers’ unpaid work, as well as generating additional business.

Keywords: lawyering, planned early negotiation, negotiation, early case assessment, working relationships, listening, legal fees, income, billing