I think it’s especially hard because lawyers tend to think in a business-like way – law is their business, after all – while you, the client, can’t help but feel the matter emotionally. You are not at your best when it comes to making decisions and the lawyer might not recognize that. (Remember, the lawyer is human, too – most of us humans tend to think that everyone else thinks like we individually do when that really isn’t true.) Your lawyer wants to reach an agreement for you. But just reaching an agreement on paper is not necessarily enough. Many agreements don’t last. The factors that make agreement difficult also make sticking with the agreement difficult. Hence some of the newer forms of legal services, developing in various ways to try to address these factors better. The next column will look at them. First, for this column, though, what makes for agreements that are not kept?
John Wade’s article, Negotiating Beyond Agreement to Commitment, published recently at Mediate.com in a shortened and adapted version, speculated that actual durability of agreements varies enormously across class, culture, wealth, and type of transaction or conflict.
I start with his conclusion (he uses the term “negotiators” for the parties working to reach agreement, including the parties to the dispute):
Most negotiators want more than an agreement. They want commitment and performance. It is helpful for negotiators firstly, to be aware of the smorgasbord of factors, which present warning signs of impending breaches; and secondly, to be aware of and skilled at working on, those factors which increase the likelihood of commitment and performance.
The detail in his article is beyond the scope of this column, but he listed some of the anecdotal reasons why negotiated agreements don’t last. The two most important to this column’s series are shallow peace and informed consent. (Quickly stated, the others are cultural expectations of flexibility, complexity of ongoing obligations, buyer’s remorse, changed circumstances, legal rules allow variation due to changed circumstances, legal rules which allow for setting aside a contract due to pre-agreement events, efficiency and accessibility of the legal “system”, all drafting has loopholes, fine tuning “later”, any agreement is better than none, conditional agreements subject to state ratification, and wealth.)
Shallow Peace (“The parties achieve shallow ‘settlement’, but not deep ‘resolution’. In those circumstances, the agreement is unlikely to endure. The aggrieved party will find a moral or legal justification to breach in the next week or decade.”) He cites a summary in one respected study of the many reasons identified for the particular difficulties of responding constructively to serious interspousal conflict:
If we restate the views of our expert divorce practitioners in language applicable to other domains of conflict, nine shared obstacles to a constructive negotiating experience can be identified:
1. High levels of intraparty conflict
2. Well-established and rigid patterns of destructive interaction
3. Inexperience in the art of negotiating
4. Scarcity of divisible resources
5. Complex issues which threaten loss of face or self-esteem
6. Elevated levels of stress and tension
7. Social norms and institutions for conflict management that are weak or that unintentionally provoke destructive interaction
8. Disparities in the parties’ relative power
9. Disparities in the parties’ degree of interpersonal sensitivity
Lack of Informed Consent. He’s worth quoting more extensively here:
Many agreements … are entered into under pressures of limited time, money, exhaustion, and exhortations to settle from lawyers … Accordingly, some negotiators look back in anger at their confused state, chaotic information, and the pressure-cooker negotiating environment. This sense of grievance may erupt later by a search for legal or moral justification to “get out of” the deal. For example:
- “My lawyer failed to explain the meaning of that clause”
- “I didn’t know that the terms of the agreement were final”
- “I was so confused and distressed on that day that eventually I signed anything put in front of me”
- “My lawyer pressured me into signing by a barrage of threats about court costs and the uncertainty of litigation”
Next column, we’ll look at forms of legal services some call “cutting edge” law, or a “comprehensive law” movement.
Here’s the link to #1, Legal Process is All about Negotiation
Here’s the link to #2, Lawyers are Human, Too
Here’s the link to #3, Lawyers Can Be Quite Versatile
Here’s the link to #4, Best of all Prevent
Here’s the link to #5, Resolve if Possible
Here’s the link to #6, Contain if Necessary
Here’s the link to #7, The Goldilocks Principle
Editor’s note: Look for “Help with the Hard Stuff” every second and fourth Thursday of the month in the Los Alamos Daily Post.
Gini Nelson, JD, MA has been practicing law since 1983. She’s a member of the State Bar of New Mexico’s Law Practice Management Committee, and the State of New Mexico’s First Judicial District Court’s Access to Justice Committee. Views expressed in the column are hers and not necessarily those of these Committees. This column is providing public information through the auspices of the Los Alamos Daily Post at www.ladailypost.comand is not providing legal advice. Nothing in this column is intended to be an advertisement or solicitation of business. Ms. Nelson’s law office website is at www.gininelson.com. If you have questions that might be of general interest if answered in this column, please send them to firstname.lastname@example.org. ©2013 Gini Nelson Law Office