Elder Law Mediation – June 28

TOPICS:
• Differences Between Elder Law and Other Types of Mediation

• Pre-Mediation Intake Screening and Who Should Be present at Mediation

• Ethics of Elder Law Mediation

• Understanding The Red Flags of Elder Abuse – Mental and Physical Effects of Aging That Mediators Need to Know
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FACULTY:
Samuel L. Bolinger, Chair
Samuel L. Bolinger & Associates, Fort Wayne

Charles M. Kidd
Indiana Supreme Court Disciplinary Commission, Indianapolis

Dr. Mary Guerriero Austrom, PhD
Indiana University Department of Psychiatry, Indianapolis
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ELDER LAW MEDIATION
3 CLE / 3 CME / 1 E – Wednesday, June 28; 9:00 A.M. – 12:15 P.M.

LIVE IN-PERSON SEMINAR
– ICLEF Conference Facility, Indianapolis

LIVE INDIVIDUAL WEBCAST
– From your home or office computer
Please Note: CME is Not Available via Individual Webcasts

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A Matter of Style

Marty Latz will be presenting twice this year at the ICLEF Conference Facility!
June 7 – How to Say “NO” & Preserve the Relationship, 6 CLE / 6 CME / 1 E
December 1 – Gain the Edge! Negotiating to Get What you Want, 6 CLE / 6 CME / 1 E

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Notes on Negotiation
By Marty Latz, Latz Negotiation Institute

‘Stan’ was a jerk. Totally self-absorbed with a massive ego, he was super aggressive and always breaking the rules. Reputation-wise, most people couldn’t stand him. Brilliant at software, though, he had developed a superb product.

The deal – based on an objective analysis of your financial and other interests – appeared to be excellent. But Stan would have a significant role going forward. So how you interacted and negotiated would be extremely significant.

Should you buy control of Stan’s company?

The biggest red flag, of course, is Stan’s personality style.  What does that mean?

Here are five qualities to evaluate in assessing your counterpart’s negotiation style. Developed by Marquette Law School Prof. Andrea Kupfer Schneider in “Teaching a New Negotiation Skills Paradigm” (Washington Univ. Journal of Law and Policy, 2012), I have also added my own thoughts here.

Keep in mind the following, too:

  • Each quality exists on a spectrum. And we all exhibit elements of each, some more than others.
  • These reflect tendencies, not immutable characteristics. Each can be improved upon with self-awareness, training and practice.
  • These are styles – not strategies. They relate less to what you do and more with how you do it. Of course, these overlap.
  • Individuals modify how they implement these styles between negotiations and even within negotiations.

1.    Assertiveness
Assertiveness relates to an individual’s aggressiveness in their negotiation interactions. How forcefully and competitively do they engage? Conversely, how much do they shy away from the conflict that inevitably exists sometimes?

Effective negotiators exhibit strong assertiveness traits – but know when, where and how to modify and modulate them.  Too much assertiveness can result in an overly adversarial environment that can be counterproductive. Too little assertiveness can leave unrealized value on the table.
I once worked with a super assertive lawyer. An excellent litigator, his negotiation style and skills were underdeveloped – everything was a fight. Finding any common ground was extremely difficult.

2.    Empathy
Schneider writes “being empathetic in a negotiation [requires] a complex mix of skills – a willingness to hear the other side, open-mindedness or curiosity, good questioning and excellent listening, among others.” Emotionally intelligent individuals score high on empathy.
Developing this skill means becoming a more active and deep listener and questioner. Highly empathetic negotiators also fundamentally believe their counterparts can help them get what they want. Empathy is especially crucial in negotiations involving future relationships between the parties.

3.    Flexibility
Flexibility sounds good. But too much flexibility can be a liability, reflecting a willingness to change too often without justification.  Too little flexibility – stubbornness – can also be problematic.
Schneider notes that “[talented] negotiators work to find a variety of ways to get the job done both in their strategic choices as well as more flexible outcomes. Being flexible in negotiation allows a stylistic move from simple compromising to more sophisticated integrative solutions. It also helps to prevent stalemate.”

Being open to creative options you may not initially consider is another element of flexibility. Brainstorming, sometimes with your counterpart, often brings out this quality in negotiators.

4.    Social Intuition
Schneider’s research finds that these social skills translate to negotiation effectiveness: personable, rational, perceptive, self-controlled, sociable, helpful, and smooth. Other research cited by Schneider suggests that how we interact and present to others and the importance of being nice are traits associated with successful individuals.

Appropriate tone and positive moods also translate to making negotiators more creative and effective. The opposite, too. Don’t underestimate the power of sociability and rapport and relationship-building in negotiations.

5.    Ethicality
Your reputation for trustworthiness and a willingness to follow ethical principles correlate to your negotiation effectiveness, according to Schneider and others.

Of course, trustworthiness in negotiations does not mean you simply lay all your cards on the table. Some misdirection is expected and warranted in many negotiations.

If my client is desperate to sell his business, I would not share this with a buyer.

Remember, though, your reputation derives not from your belief in your trustworthiness and ethics – but how your counterpart describes you after the negotiation.

So what about Stan? Here’s my style rating of him: high assertiveness, super low empathy, medium flexibility, low social intuition, problematic ethicality. Too many red flags. Walk away.

Latz’s Lesson:  Research and evaluate your counterparts’ personality style. A good or bad style fit can make or break your deal.

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Marty Latz will be presenting twice this year at the ICLEF Conference Facility!
June 7 – How to Say “NO” & Preserve the Relationship, 6 CLE / 6 CME / 1 E
December 1 – Gain the Edge! Negotiating to Get What you Want, 6 CLE / 6 CME / 1 E

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Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts’ proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Trial Court Erred in Imputing Both Parties Incomes

Family Law Case Review

Case: Karen B. Salser v. Gregg A. Salser
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court erred when it imputed Mother to full-time employment as a nurse practitioner, even though her history for the previous five years had been to work about half-time and Mother’s testimony was that no additional hours were available through her current employer.

HELD: Trial court erred when it failed to include Father’s irregular bonus income, which has the potential to equal 28% of his annual base income, in any part of the child support calculation.

HELD: Trial court erred when it ordered the parents to contribute equally to post-secondary educational expenses. Because the equal division was premised upon the erroneous imputation of Mother to full-time employment, then the post-secondary educational expense division was also error.

FACTS AND PROCEDURAL HISTORY:
The parties married in 1993 and filed for dissolution in 2014. At the time of the dissolution proceedings, the parties had one child in college and one in middle school.

Mother was a nurse practitioner who worked part-time and hourly for a physician. For 2012 through 2015, her income varied from $39,946 to $49,786 per year.

Father was a pharmaceutical rep. He earned a base salary of $95,000 per year, but with bonus opportunities of up to another $27,000 per year.

Following the final hearing, the trial court issued its Decree, which included the following pertinent provisions:

1.     The child support order was based upon imputing Mother to full-time employment at her current hourly rate.

2.     The child support order disregarded Father’s potential bonus income altogether.

3.     Because Mother’s imputed income level was comparable to Father’s income level, the trial court’s post-secondary educational expense order provided that the son should pay 34% of his college expenses, with the remainder divided equally between Mother and Father.

Mother appealed.

The Court of Appeals agreed with Mother that imputation was error. The Court relied primarily upon part-time employment by Mother having become established practice during the marriage, coupled with the evidence that no additional hours were available through Mother’s current employer. There was also no evidence that Mother was attempting to reduce her income to avoid a child support obligation.

The Court also agreed with Mother that it was improper for the trial court to completely disregarding Father’s potential bonus income. The Court specifically noted the percentage calculation set forth in the Guidelines that can be developed to provide that a specific fraction of each bonus payment is paid as child support.

Finally, because Mother was improperly imputed to full-time earning potential, the post-secondary educational expense order — which was derived in part from Mother’s imputed income level — was also erroneous.

The case was remanded for a recalculation of child support and the post-secondary educational expense order, consistent with the Court’s opinion.

Judge Bradford dissented, noting the great deference that the Guidelines and case law afford to trial courts, not just in family law matters generally, but in deciding whether to impute income and how to handle bonus income in particular. “Mother, a licensed nurse practitioner, has the ability to work full-time but simply chooses not to, numerous opportunities are available in Mother’s line of work within the community, and Mother would make the same hourly rate ($50 per hour) or higher if she were to accept a full time position.” 

To view the text of this opinion in its entirety, click here: Karen B. Salser v. Gregg A. Salser

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James A. Reed and Michael R. Kohlhaas of Bingham Greenebaum Doll represent clients in a wide spectrum of relationship transition and wealth planning matters, including premarital agreements, estate planning, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Bingham Greenebaum Doll, a multidisciplinary law firm serving regional, national, and international clients, is the fourth-largest law firm in Indiana. The firm’s main practices include corporate, property, litigation, labor, government law, and personal services law. Visit the firm’s website at www.bgdlegal.com.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Analyzing Trump’s Health Care Negotiations

Notes on Negotiation
By Marty Latz, Latz Negotiation Institute

President Donald Trump has called himself a “really great negotiator.” Let’s evaluate his first significant presidential negotiation effort – health care reform with the U.S. House of Representatives.

Three quick caveats to start:
• It’s essential to use an objective research-based method to truly evaluate what occurred, rather than the hyper-partisan approach that seems to dominate current political analyses. The Five Golden Rules of Negotiation will serve as our framework.
• While these negotiations were extensively reported, some of what occurred was private and beyond the scope of our knowledge at this time; and
• These negotiations were simply the first step of a multi-step legislative/negotiation process required to change the law. U.S. Senate approval would have been the next step. And had the Senate made changes, the different versions would have required reconciliation and further Congressional approval before a presidential signature.

While the Five Golden Rules provide a comprehensive framework, many of the issues here can be attributed to how Pres. Trump implemented Golden Rule One: Information is Power – So Get It!

As regular readers here know, the first step to effective negotiating is getting sufficient information to set realistic and achievable goals. Then you must design a comprehensive strategy to accomplish them.

Pres. Trump repeatedly stated his healthcare goals on the campaign and after becoming president – repeal and replace Obamacare with better coverage, lower premiums, and no one loses their insurance.

What does this tell us about Pres. Trump’s implementation of Golden Rule One in the first step of this legislative process?

1. Trump Publicly Set Unrealistic and Unachievable Goals
No proposal evaluated by the House even came close to achieving his goals. The Congressional Budget Office, a non-partisan expert body with a Republican-appointed head, estimated the first House proposal would cause 24 million Americans to lose coverage. Subsequent proposals eliminated more and more health care benefits without adding coverage.

Bottom line – Pres. Trump’s repeatedly stated goals were unrealistic and unachievable with the proposals on the table in the House. His overall strategy, which would have required Senate approval, was also unclear and unspecified. How, if at all, did he propose to achieve his goals? No one really knew, including the House members whose votes he needed.

2. Trump Failed to Understand the Interconnected Complexity of Healthcare
Based on Trump’s comment that “[n]obody knew healthcare could be so complicated” and the reporting of his actual negotiations with House Republicans, Pres. Trump does not really have great knowledge and understanding of healthcare policy. Nor does he truly appreciate the complexities of how these elements work together.

Of course, presidents don’t need to be detailed policy experts to negotiate great deals, and regularly delegate policy details to others. But it’s crucial to be able to substantively engage in a back-and-forth discussion about significant issues. An inability to do so even at a high level will be detrimental to achieving negotiation success.

For example, Pres. Trump near the end of the negotiations offered to eliminate “essential health benefits” like requiring insurance to cover pregnancy and doctor’s visits. He did this in an effort to pick up votes from members of the House Republicans’ “Freedom Caucus,” who favored eliminating these benefits.

But offering this without also eliminating the requirement to cover pre-existing conditions could have led to a collapse of the insurance markets. Expert House members knew this. So giving in on the benefits issue actually made it less appealing to some of these members, not more. And by doing this, he also lost the votes of some moderate House Republicans, who liked those provisions.

3. Trump Overlooked Key Players’ Interests and Motivations
Pres. Trump overestimated the loyalty interests of House Freedom Caucus Republicans. He apparently believed that Republican team loyalty and getting anything passed would trump their interests in getting a bill that lowers premiums and taxes, lessens regulation, minimizes governmental involvement in healthcare, etc.

But a cursory review of these Freedom Caucus members’ history of Republican loyalty would have raised serious questions of the efficacy of this strategy. After all, these were the same members who shut down the government several years ago over the objections of most mainstream Republicans.

Former Republican Speaker John Boehner was even forced out by these same members. Loyalty and taking one for the team is not really in their playbook.

4. Trump Failed to Build Coalitions
Pres. Trump might have been able to get sufficient House Republican votes if he had built up public support for the bill’s major provisions and built coalitions among the involved Republican interest groups.

This could have led those Freedom Caucus members to believe that their constituents in safe Republican districts would have been better off with the final bill and/or would have used this issue to vote against them in two years. This would have directly addressed what many believe to be the most crucial interest of any politician – survival interest in re-election.

But the bill and its provisions, according to polling, only had a 17% approval rating from the public. And almost every major interest group, from the conservative Koch brothers to doctors to every liberal group, opposed it with many spending millions on ads trashing it.

Latz’s Lesson: Information is power. Pres. Trump did not have it or get it.

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Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts’ proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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