Attorney Carol Strench shares some tips for dealing with emotion in negotiation.
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I’m really excited about this episode, because I have my friend Carol on the show. Carol and I met at law school, and she started her own practice just like I did. And so she’s going to talk to us about how we can deal with emotions in negotiations.
She’s a family lawyer so she deals with divorces and custody battles, so needless to say, she knows a little bit about emotions. Here are the things that I want you to focus on throughout the interview. I want you to pay attention to how she negotiates with her clients to help them be realistic and focus on the big picture. How she’s able to manage the expectations of the people she’s negotiating with. How she’s able to frame offers in order to make them more palatable to the other side and lastly, pay attention to how a timely apology can turn the negotiation around.
This information isn’t only valuable for entrepreneurs; this is also valuable for people who are in the corporate world as well, because you’re going to need to deal with emotions within your teams and when you’re dealing with your bosses or managers. So everybody’s going to be able to get a lot out of this interview. Make sure that you listen to the end of the episode because I think she gave us one of the best parting tips of any of our guests.
So without further ado let’s jump into the interview!
Carol, thanks for being here with us today. Let’s start off with you telling us a little bit about your practice.
I am a family law attorney, the quick and short of that, generally entails custody work, divorce cases, a lot of personal and emotional negotiations. Certainly there’s an element of property and financial settlement which isn’t necessarily as emotional, but it’s a pretty emotionally driven field overall.
So what kind of negotiations are you dealing with? Who are you negotiating with typically?
So in any given case, especially cases with children there’s – usually an element of negotiation with the opposing counsel or opposing party, as well as with my own client and with the court as well once you get to the trial stages and in various aspects of the hearings.
People often think with attorneys that the negotiation is always with the opposing side. And oftentimes in my practice it can be with my own client that I’m doing a lot of the negotiation – whether that’s coming up with a settlement offer that we’re going to send to the other side, or really just bringing my client down to an attainable goal. That can often be a challenge, particularly once we get into the later stages of the case.
If we’re heading into a trial and my client has a position that may or may not be attainable, it can be really difficult to reason with them without sacrificing their goals. To try to make them see the pros and cons of what offer may or may not be on the table, the benefits of accepting an offer and knowing the outcome as opposed to taking that risk and leaving the decision up to the court if you go into a trial setting.
And this can be particularly challenging when people feel like they’re not getting all it is that they want. And sometimes clients have very realistic attainable goals and there’s very minimal negotiation between myself and the client, and other times the emotions can be so high that they just don’t necessarily realize or understand the legal process enough to know what it is they can or cannot get if we proceed all the way with a contested trial.
Right, I want to key in on this because this is something that a lot of business owners can relate to, because as the business owner most likely – at least I hope so – you’re the expert in the situation when it comes to you and your client or your customer. But a lot of times the customer or client would ask for something that’s unrealistic, and you’re put in a position where you need to let them know – Hey, that’s not gonna work, but this will – and have them trust you. But for you, there’s another barrier, because it’s not just logical, it’s emotional. So how do you use emotions in those situations with your clients?
In these parenting situations especially, since those are the most emotionally driven aspects of my field – it’s important to remind clients what a trial and contested case process can entail. A lot of times parents want their children with them 100% of the time or the vast majority of the time, when if there’s really nothing wrong with the other parents as a parent – other than the fact that two parents just don’t get along – a court may not be taking away a 50/50 time or whatever schedule it is that they’re looking for. It may suit their needs, but isn’t necessarily going to be perceived as being in the best interests of the child.
And going through that process and explaining, whether there’s a guardian and if there’s a recommendation on the table that the court may have me consider, really talking about the impact of that recommendation in a case. As well as talking about the emotions of trial in and of itself. By the time we get to a trial in a custody case or a divorce case involving children, there’s a good chance that we’re already a year down the road from the start of the initial case was filed, sometimes longer.
At this point, these people have both invested time and money to get here, and oftentimes people get so hung up with “this is what I’ve been fighting for all this time, I don’t want to give in and sacrifice my goals after I’m so invested in this.” It’s important for people to take into account what a trial can really do to these people. For instance, these two parents, when this custody case is closed – on the attorney side of things the case is closed, it’s off my schedule. But these two people need to continue with this parenting time schedule at the very least until their children are 18, and realistically they’re going to be parents for the rest of their lives.
Children grow up, children have other children, have graduations, weddings – and these people are going to have to interact with each other a lot longer than just the trial itself. In going through a trial and experiencing the mudslinging that parents often have to go through to show why they’re the better parent – can be really damaging to that relationship after the case is done. Because if you’ve just pulled all the emotions out and done everything to rip each other down, which unfortunately some of these cases can get to – it can be very difficult for them emotionally to pick up the pieces after the fact.
So I always like to remind parents that, especially if they’re on decent communication terms, that there’s some value in salvaging their ability to communicate and work together as parents – even if it means maybe making a couple sacrifices from what they really would want if it’s entirely up to them.
Right. That makes a lot of sense. What I’m hearing here is first educating them on the process which is really important because it helps you to establish expectations; and really the foundation for any relationship, or that the thing that really hurts relationships – and in this case the relationship between you and your client – would be the violation of expectations. So you’re right, educating them up front and setting those expectations is going to be important.
And then also helping them to keep things in perspective – because a lot of times when people are highly emotional, they think in a short-term manner, but it sounds like you do a good job of helping them to understand their longterm goals, and not just focus on winning short-term battles, but focusing on the war overall.
Absolutely. In general the expectations can be tough on people when emotions are involved. Just with the amount of time things take, especially in family law and I’m sure in other aspects of business in law as well. Things don’t necessarily happen overnight the way that somebody wants them to.
On a personal and emotional level, I completely understand what the frustration is that these people feel. One of the most frustrating things is getting them to understand really how to get what it is that they’re trying to get, if that’s even a possible goal. Somebody can’t walk in and expect it to be an emergency in the eyes of the law because somebody has a bad attendance record when the kids are with them. Or maybe they’re not eating the best foods and eating a lot of fast food or frozen foods at mom or dad and one parent has a problem with that. Things like that that aren’t emergencies in the eyes of law can be very difficult, because if it takes a few months to get a hearing, from there we have to actually prove that these are concerns that are genuine and are negatively affecting the children’s interest. It’s tough for people to accept that there isn’t necessarily that instant gratification that they’re looking for.
It’s easy for someone to say, “How can the court set another hearing and wait for an investigation to be done when I think that the other parent is using drugs around my children?”
If we can’t prove that, if we need to get a drug test and get something done to investigate and determine whether this is actually going on and whether it’s going on around the children – those things just take time. And it’s tough for these people to sit there day to day knowing that these concerns are on their minds, without necessarily seeing the results right away that they’re looking for.
And so how do you manage those emotions with peers? When you’re with a colleague? Because in law a lot of times people have the idea “you’re my attack dog, they’re their attack dog – so go at it.”
But we in law we have to manage the relationships with opposing counsel because most likely we’re going to see them again and again. So when they are experiencing emotions, or probably yourself too – how do you handle those negotiations with other attorneys?
In any case it’s my job to pursue the client’s goals and to try to focus on the legal side of things and be objective, while fighting for their subjective goals – but it can be difficult. There are cases that get to me emotionally, especially in situations where there’s more severe things going on, whether that be violence or neglect or various other concerns; it can be really tough even on a personal note when your client doesn’t get what it is they want when they want. And I do my best to… I don’t wanna say hide those emotions, I think it’s important for a client to realize you’re not a robot, that we do feel what they’re feeling. But staying focused on how it is that we’re going to get to the end result.
And that applies as well in communications with opposing counsel. It may mean reminding them of your client’s emotions and letting them know that – look, I understand your position here, but I’m not going to get them to that offer because we’re just not at that stage emotionally. There are cases where I’ll talk with an opposing counsel and say, “I’ll do my best to talk to my client and get them there.” if it’s a reasonable offer that’s on the table.
Other times whether the offer is reasonable or not, that may just not be an emotional option for where my client’s at in a particular point in that case. And I think relaying that to opposing council is important. One, on a professional note so that they understand where you are at in your relationship with your clients; but also so that you don’t waste time working towards something that just isn’t the right time to be at that place.
It’s also important to understand the same on the flipside, that opposing counsel is also representing somebody who also has emotions involved, and it can be very frustrating when you feel like there’s a reasonable solution that would be best for everybody involved, but the other side just isn’t there. So that’s something that always needs to be communicated with an opposing counsel as far as where you’re at if you want to be able to continue to have a working relationship and work towards a settlement – which is generally the end goal in any case if that’s something that’s possible.
With an opposing party it can be a little bit difficult if there’s not an attorney on the other side. Because I think attorneys generally speaking are pretty good at being able to set aside the personal emotions of it and talk the logistics and talk the procedure; whereas an opposing party may not understand the process and may be so hung up on the emotions that there are times that you just come to an impasse where you can’t negotiate further. And accepting where you’re at may be the solution for negotiation at a certain point in time, and accepting that negotiation isn’t always an option in certain settings.
I want to key in on the one of the things that you said. You said that sometimes the opposing party would make an offer that you feel is reasonable, but you know your client isn’t emotionally there yet. And so a lot of times in negotiation we focus too much on the tangible items – what are the damages? How much do you owe me? Those type of things.
But we forget about the intangible items like emotion, because those are things that really need to be addressed. So how do you manage to quantify emotions in these types of negotiations?
When it comes to child-related issues, I guess those I would consider in a separate category, since there’s not necessarily something quantifiable. But in terms of property and finances, emotions do come into play. In theory, property and finances are more black and white issues, and if there is one value of something, it’s something that should be equitably divided in a court case – certainly there’s valuation and other negotiation aspects that play into that.
But there are even emotional impacts on the property issues – for instance who gets to keep a house? People may have sentimental attachments to a house. It may be a pride issue for some people where maybe there are okay with paying spousal support or paying child support, but the idea of giving money to the other person is just something that they don’t want to do out of spite. And that’s something to consider as well.
I have cases where people would rather pay a higher amount of child support than would necessarily be required to if we went to trial; but have no spousal support because they like the mental idea that all their money is going to the support of their children and not to the support of their ex-spouse. It’s that idea of ‘I don’t want to give him or her a dime of my money.’ That maybe isn’t necessarily reasonable, but it’s a very real aspect of these cases in some situations.
I wanted to tease that out a little bit because I know I got that because I know I am a lawyer – but differentiating between spousal support and child support, because that that was a really great point you made. Can you tease that out a little bit more?
Sure. There are different factors on the legal side that I won’t get into the nitty-gritty of, that come into play there where emotionally there’s no factor the court’s going to consider that says, ‘What does the parent want with respect to child versus spousal support?’ But oftentimes people are more comfortable with giving money that they feel is going directly towards their children. As opposed to the idea of ‘I’m going to let my spouse continue to maintain this lifestyle.’
The reality is especially in longer term divorces where the parties were married for many years; especially in cases where there’s a parent who maybe became a stay at home parent, or whose career went to the wayside for the sake of the children while the other one continued to grow professionally. The reality is spousal support is designed to help those parties transition and to be able to get on their feet and get to a place financially to support themselves a little better. If somebody’s been out of the workforce for 10, 15 years that’s not gonna happen overnight.
But it’s important to explain what these support figures are for, to explain that to someone and tell a client, you’ve been working for 20 years while your spouse has done nothing to build a resume, is older and maybe would have a difficult time getting back into the workforce in general. And explaining to them what that’s there for, when oftentimes they still get so hung up on the idea of ‘if he or she thinks that they can continue to live the lifestyle we had while we were married – they’ve got something coming to them.’
It’s that idea of ‘I don’t want to continue to support someone while they sit at home and don’t work.’ They may have been fine with that while they were married, and that was a family decision together – but nobody likes the idea of ‘I’m going to continue to work and pay my money to somebody who isn’t working.’
But it’s important to bring them back to what that’s there for, why the law is what it is, so that they realize they’re not just paying money so that somebody can continue to live this high standard of living that they are not themselves. It’s to refocus them on the fact that these parties are transitioning.
I really love that point, and so I want to take a second and highlight that because it really shows the importance of framing. You can give the same offer, but frame it a little bit differently and then somebody would accept it; versus if you framed it the previous way, they wouldn’t have accepted it. So for the listeners out there, the difference between spousal support and child support is that the money that goes to child support is focused on the children and the money that goes to the spouse is focused on the spouse. But it’s all money that essentially, for the most part kinda goes to the same place.
So if you were to frame the argument saying – we need this much money, but it’s for the kids – people are going to be more willing to accept it, because you framed it in a way that it seems like the kids are winning and not the spouse on the other end of the table. So I’m really glad you brought that point up.
Another thing I wanted you to talk about was apologies, and whether or not that has a place in negotiation. Have you ever experienced an instance in your settlement negotiations where a genuine apology made a difference in the outcome?
Oh absolutely, especially in the context of parenting issues in my cases. Oftentimes when parents have a really damaged relationship between the two of them, maybe there was some adultery, maybe there was some domestic violence between the two of them. Oftentimes parents feel like they cannot communicate with each other because of this damaged relationship that they experienced through the years, when despite their poor relationship they may both have great relationships with their children, and may both be very involved in the upbringing up their children.
And there are cases where if these parties just sit down and talk in a room and clear the air a little bit, and actually hear what the other one has experienced, it can make an impact on their willingness to continue to work together and work toward settlement in the case.
It’s so interesting; because sometimes it’s the things that you give away that don’t cost you anything that can have the most impact. You can give apologies away for free. Listening to somebody, that’s free as well. But emotionally it has an incredible impact and can get some movement in emotional situations.
The problem is that the person who is giving the apology often feels like they’re ceding some of their power, and so you have to get through that personal pride in order to do that. I know we’re coming up on time so I want to move into the challenge portion of the interview.
So if there is one challenge that you would give our listeners that will help them to become a better negotiator – what would it be?
I think the biggest challenge is really just listening to the emotions behind somebody’s thought process, and really trying your best to incorporate that in how you negotiate. And that can be a huge challenge, because if something on paper in black and white really seems unreasonable, that somebody is so emotional about such a seemingly little issue – it can be very easy to be dismissive of that. Say, “I don’t think that’s a really big deal, let’s focus on the bigger issues.”
But you really have to listen to your clients and listen to the people you’re dealing with, and appreciate just how important some of these emotions are. And to sift through what are the big emotional items, and what are the less emotional issues because it can be a huge challenge. If something’s highly emotional, you may just be wasting your time and spinning your wheels trying to negotiate to somewhere that just isn’t going to happen. And I think the challenge is realizing what those issues are early on, and approaching them being aware of their emotions. And then taking apart the other issues that maybe are not as emotional – and trying to solve those issues first.
If you can solve the least emotional issues first, and all that’s left is the one big emotional item – sometimes that makes it easier to really focus your attention in a negotiation. But getting to that point I think is one of the biggest challenges. And I catch myself every now and then where I think I’ll just talk with my client, or I’ll just talk with the other side and we’ll get that issue settled because that isn’t nearly as big of an issue as say a custody decision. But for those parties if it is, it’s important to realize that every person is different and what’s emotionally significant to them may not be the same as your other cases. And knowing and understanding the reasons behind their emotions can really help you to work towards their goals.
I love that point because like you said, listening goes a long way, but it’s often hard to do, especially when it’s a highly charged emotional situation. But listening – when you think about it – it’s the easiest concession you could make to somebody: okay, I’m going to listen to you. And a lot of times that’s really what they need, they need you to take the time and understand in their words how your actions made them feel or the negative impacts of your actions.
Especially in situations where there wasn’t malicious intent, where you did something that had a negative impact on somebody and you feel like they’re vilifying you for it – it’s hard to listen to that without stepping in and defending yourself. But when you take the time to genuinely listen, it’s powerful and it can make moves in negotiations – so that’s a really great point.
With that we’ll just wrap it up, and I want to thank you for joining us today because this was really informative and really helpful – even for me too, because like I said before, I don’t really deal with these kinds of emotions in my world, I’m in the business world – so it’s always good to have a refresher. So thanks again!
Yeah, absolutely. I hope to be back here again, I’ve enjoyed it!
If you need advice or to contact Carol directly, you can find all her details online at strenchlaw.com
Kwame Christian, Esq., M.A. Negotiation Consultant and Negotiation/Persuasion Coach
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