Notes on Negotiations: Kids Can Benefit From Negotiation Concepts

Notes on Negotiations
By Marty Latz, Latz Negotiation Institute

“I feel so committed to my client that I have a really hard time being objective and analytical in my negotiations on their behalf,” a lawyer told me recently. “I really take things personally. What should I do?”

Several months ago I did a 30-minute presentation before a very intimidating group – my son’s 4th grade class. My goal? Help them learn one or two crucial negotiation concepts and make my son proud (or at least not embarrassed.)

While negotiation is a fundamental business skill, its concepts also apply to how children interact and socialize with each other. It also, of course, applies to how parents and kids communicate.

In fact, a recent New York Times article, “Teaching Social Skills to Improve Grades and Lives,” described a new study that found social skills of kindergartners that included: “cooperates with peers without prompting”; “is helpful to others”; “is very good at understanding feelings”; and “resolves problems on own” were predictive of a whole host of successful outcomes 13 to 19 years later.

So what should we be teaching our kids to help them learn and use these skills? Here are three, each of which parents – as an impactful parenting tool – should model for and with their kids.

1: Focus on interests – ask why
Good problem-solving skills always involve finding out the individuals’ interests underlying the problem. Don’t just find out what they want but why they want it.

I asked my son’s class to pick something they wanted from their parents and tell me how they tried to get it. While one kid tongue-in-cheek said he “extorts” things from his parents (a form of leverage, right?), one girl said she and her siblings wanted to go to Disneyland.

What did her parents do? They took a jar and marbles and each time a kid did a good deed or exhibited particularly positive behavior they put a marble in the jar. Once the jar was full, they would go to Disneyland.

This system satisfied the kids’ interests – having fun at Disneyland – while also satisfying their parents’ interests – ensuring their kids behaved really well.

The best way to help kids focus on interests is to encourage them to explore why they or their friends want something. Why is it important to not call someone names or to not cut in line? Why shouldn’t John always play quarterback during lunchtime football games?

They should also explain “why” if they want something – I want this app because it will help me learn the presidents’ names and we’re going over this in school.

I tell our kids “why” is the magic question in the negotiation world.

Ask and listen
The Greek philosopher Epictetus almost 2000 years ago said “we have two ears and one mouth so that we can listen twice as much as we speak.” This is great advice. Encourage your kids – especially the more talkative ones – to listen more.

Suggest they ask more questions, too. Effective negotiators ask twice as many questions as others.

Negotiation and problem-solving is more about asking and listening than arguing and persuading.

Brainstorm solutions with them
Each Friday, during what they called Community Builder time, my son’s class would address a list of issues or problems someone had experienced that week and that they had written down. They would a) explore the issue and interests involved through questioning and listening, b) brainstorm possible solutions, and c) vote on the best solution.

I like this exercise because it emphasizes the above strategies and involves and empowers the students to take an active role in finding a beneficial solution that satisfies all their interests, including the teacher’s.

It also helps the students understand how it feels to be in another student’s shoes, a crucial problem-solving skill.

Of course, exercises like this must be age appropriate, and parents and teachers sometimes have to set policies and enforce them like a “benevolent dictator,” as my Dad used to say.

But exercises like this will help create the great negotiators of tomorrow.

Latz’s Lesson: Helping kids explore interests, ask and listen more, and brainstorm their own solutions will lead to effective problem-solving skills for kids’ – and for life’s – negotiations.

Note: This column includes insights from 10-year-old Jason Latz.

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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

Marty will be Live In-Person here at the ICLEF Conference Facility, November 13. To learn more about Gain the Edge: Negotiation Strategies for Lawyers or to registerClick Here.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Law Tips: Collective Bargaining in Professional Sports

Summertime, baseball and CLE – a great combo! Occasionally the opportunity arises for ICLEF to offer this blend. Our recent Torts, Sports & All Sorts CLE at Victory Field in Indianapolis was one of those informative and exciting days. Attendees gathered relevant legal updates and then enjoyed the Indianapolis Indians vs. Buffalo Bisons game. Since these programs are a rarity, I’m especially pleased to have the following Law Tips contributions from Lee Christie, of Cline, Farrell, Christie & Lee; Indianapolis. Fresh from that day at the ballpark, Mr. Christie shares his rundown on collective bargaining in pro sports.

Collective bargaining is the primary means by which Club owners and players coexist in pro sports. In many ways, disputes between members of the sports industry are resolved in the same manner as they are in the steel industry. As such, agents within Players Associations (unions) represent players in labor-management disputes with their superiors. Collective bargaining agreements essentially govern all league operations. They generally include constitutions and bylaws, as well as rules and procedures for dealing with divisions in revenue (trend toward owners making more), salary caps, free agency, arbitration, draft restrictions, disciplinary rules, etc. The following is a breakdown of the current CB agreements in the three major pro sports.

In Major League Baseball (MLB), there are minimum salary requirements but no salary caps. Unlike in other major sports, the MLB does not recognize restricted and unrestricted free agents. Instead, when a player reaches free agency, the team can make him a qualifying offer. If the player declines the offer and elects to pursue the open market, the player’s former team is compensated with a draft pick. Players who seek salary arbitration sit before a three-person panel selected jointly by the MLB Labor Relations Department and the MLB Players Association (PA). The process is known as final offer arbitration, because both the player and the owner submit a single offer, or bid, and the panel chooses one or the other.

Player grievances outside of salary disputes are decided by the “Club’s representative” and may be appealed up to the Chairman of the three-member panel. The National Basketball Association (NBA) has what is called a “soft” salary cap, meaning that teams are generally permitted to exceed the salary cap and/or luxury tax without much consequence. Unrestricted free agents may sign with any team they choose, but restricted free agents are subject to limitations placed upon them by their current teams. To restrict players, team owners must establish their “right of first refusal” by making a qualifying offer. If the player accepts, he becomes an unrestricted free agent the following year. If the player refuses, other teams may extend an offer sheet with an amount exceeding the qualifying offer. The current team then has 7 days to match. Players who seek system arbitration sit before a single arbiter, jointly selected by the NBA and NBA PA. The aggrieved party may appeal to a three-person panel.

The National Football League (NFL) has what is called a “hard” salary cap, meaning that there are no exceptions to the cap and stiff penalties will be allocated to teams who exceed it. Like in the NBA, the NFL recognizes restricted and unrestricted free agents. However, the NFL also recognizes certain subcategories of free agents, including transitional and franchise players. Although somewhat more complicated, restricted and unrestricted free agency in the NFL works much like it does in the NBA. The transitional and franchise player aspects are essentially just methods of locking up players and preventing excess player mobility. Players who seek system arbitration sit before a single arbiter, jointly selected by the NFL and NFL PA. The aggrieved party may then appeal.

Collective bargaining has had a major effect on the competitive balance within each sport. In the MLB, for example, because there is not a salary cap and the free agency process is especially appealing to players, big market teams are generally the best teams year after year. The same holds true for the NBA, largely because of the “soft” salary cap. In the NFL, however, because of the “hard” salary cap and the free agency rules that allow teams to restrict player mobility, small market franchises are generally more capable of competing.

**All of my findings on collective bargaining are from the articles entitled (1) Beyond the Box Score: A Look at Collective Bargaining Agreements in Professional Sports and Their Effect on Competition, by Ryan T. Dryer, Missouri Law and (2) Collective Bargaining and the Professional Team Sport Industry by Cym H. Lowell, Duke Law**

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Thank you to Lee Christie for this interesting overview of collective bargaining in pro sports. Since the Sports, Torts & All Sorts CLE is what we call a Live In-Person Only Seminar, I can’t offer you the video replay, or even an epub. But I hope you’ll keep your eyes open for the next time a similar event makes our schedule. While your waiting for the next play, practice up with an On Demand offering in your arena of choice. Plus, right until Aug. 31, 2015 All On Demand Seminars are 50% Off. Use Coupon Code:  DX7Y9 

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About our Law Tips faculty participant:
Lee C. Christie is a partner with Cline Farrell Christie & Lee, PC; Indianapolis. His practice focuses on Trucking Collision cases, wrongful death and alternative dispute resolution. Lee is committed to maximizing tort recoveries for accident affected victims. He has extensive trial experience in both federal and state court and is a frequent lecturer on trial, mediation, personal injury, medical malpractice, trucking accidents, and settlement issues.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Law Tips: Your Nursing Home Resident Client Could Use A Good Managing Partner

What do you do to promote quality care for the person under guardianship for whom you are responsible as guardian, once that person is in the facility? We often hear that, in dealing with a demented patient, you shouldn’t try to bring them to your reality because that’s a losing battle. Instead, we’re told, be with them in their reality. To some degree the same can be said for dealing with a nursing home; knowing that the reality is that there will be care problems in a nursing home, some avoidable and some not, how do we act as guardians within that reality?

I welcome H. Kennard Bennett and Robin Bandy, ICLEF faculty participants, who have wide experience in effective advocacy on behalf of the nursing home resident client. Their guidance for those acting as guardians includes being persuasive, curious and persistent, celebrating success and finding internal as well as external allies. Another effort that Robin and Ken recommend for the best outcome for the nursing home resident is good team management. Here’s that expert advice:

Defining Roles and Responsibilities – The Team Approach
As obvious as it may be to those of us serving in the guardianship role, the role of a guardian is not always understood by others, including nursing home staff. A guardian is not a health care provider. A guardian is not a discharge planner. A guardian is not just a “yes man” or someone who just signs consent forms, etc. A guardian is defined by the National Guardianship Association’s Standards of Practice as “A person or entity appointed by a court with the authority to make some or all personal decisions on behalf of an individual the court determines lacks capacity to make such decisions.”

A common way of thinking of guardians is as the “surrogate decision-maker” responsible for exercising “informed consent” on behalf of someone who has been deemed incapable of exercising such consent themselves. This model, however, is an insufficient one when it comes to guardians of a nursing home resident. We say “informed consent” meaning that the experts – the doctors or nurse – are providing us with information upon which we are asked to say “yes” or “no” -yes to that procedure, no to that drug, etc. But in the nursing home setting, where the person under guardianship shall be living, not just convalescing, the decisions to be made are not only with regard to medical or nursing procedures. They also involve the resident’s quality of life. What foods and activities do they enjoy? What were their living habits before moving to the nursing home? Were they “night owls”? Was lunch or dinner their biggest meal of the day? Briefs or boxers?

Many of these questions are incapable of being answered by the nursing home itself. They are questions the social worker in the nursing home will want answers to, perhaps, but the social worker may not know the questions to ask. All of which is to say that the guardian and the nursing home staff need to be a team to meet the needs of the resident. The guardian relies upon the nursing home employees to provide the care and services required, but the nursing home relies upon the guardian to provide not only consent, but is many ways resident history, guidance, and direction.

As between the nursing home staff and the guardian, which team analogy makes the most sense? Is the guardian the coach? I would argue not- a coach tells the players how to do their job, how to improve their skills, etc. That’s not the role a guardian must play; a guardian cannot be expected to have the expertise to tell nursing homes how to do their job. Is the guardian the CEO? This is perhaps a better analogy in that the CEO defines the outcomes she wants from the employee team, although this analogy comes across as too top-down and too egotistical.

Maybe the best analogy is that of “managing partner,” in that the guardian is keeping a “team of equals” on track in meeting the needs of the nursing home resident. The guardian still holds the team accountable to the team goals, but recognizes and respects the individual expertise of each of the team members. As with a managing partner so it is with guardians: the power of persuasion trumps the power of commandment when it comes to achieving the team’s mutual goals.

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Ms. Bandy and Mr. Bennett served as faculty for our popular Guardianships In Indiana CLE seminar. You have several options should you wish to learn more from this program. Click Here to select from these formats: Video Replay, OnDemand, electronic document, publication or CD-ROM. Thank you to these two outstanding faculty members for their continuing contributions.

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About our Law Tips faculty participants:
Robin J. Bandy, Associate Counsel and Director of the Volunteer Advocates Program at the Center for At Risk Elders (CARE). Prior to joining CARE Robin was the Program Manager at the Fairbanks Center for Medical Ethics at IU Health. Robin completed her law degree and master’s in bioethics at Indiana University-Indianapolis. She was the founding director of the Wishard Volunteer Advocates Program and has served as an ethics consultant at both IU Health and Eskenazi hospitals.

H. Kennard Bennett, Bennett & McClammer, LLP, Indianapolis. Before starting Bennett & McClammer, Ken had his own solo practice and he was a partner in the elder law firm of Severns & Bennett, serving as its President and CEO. He remains “of counsel” to what’s now known as Severns Associates. Ken has served as the Editor of the National Academy of Elder Law Attorneys Quarterly. He is a frequent continuing education speaker on nursing home litigation and elder law topics. Ken currently serves as President of the Indiana State Guardianship Association. He also serves as the President and CEO of a new non-profit public interest law firm known as The Center for At-Risk Elders, Inc. (“CARE”).

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Law Tips, News0 Comments

Law Tips: Pet Trusts – Client Friendly FAQ’s

Dogs, cats, parrots, and other pet animals play extremely significant roles in the lives of many individuals. Research indicates that pet ownership positively impacts the owner’s life by lowering blood pressure, reducing stress and depression, lowering the risk of heart disease, shortening the recovery time after a hospitalization, and improving concentration and mental attitude.1

The love owners have for their pets transcends death as documented by studies revealing that between 12% and 27% of pet owners include their pets in their wills. The popular media frequently reports cases that involve pet owners who have a strong desire to care for their beloved companions.2

Our Law Tips faculty participant, Professor Gerry Beyer, is here to share his professional insights into estate planning for pets. During his CLE instruction at the Midwest Estate, Tax and Business Planning Institute, he raises questions that often spring into a client’s mind when they begin to make provisions in their will for their pets’ care. Here’s a sample of Prof. Beyer’s “Client Friendly” Frequently Asked Questions:

What is a “pet trust”?
A pet trust is a legal technique you may use to be sure your pet receives proper care after you die or in the event of your disability.

How does a pet trust work?
You (the “settlor”) give your pet and enough money or other property to a trusted person or bank (the “trustee”) with the duty to make arrangements for the proper care of your pet according to your instructions. The trustee will deliver the pet to your designated caregiver (the “beneficiary”) and then use the property you transferred to the trust to pay for your pet’s expenses.

What are the main types of pet trusts?
There are two main types of pet trusts.

The first type, called a “traditional pet trust,” is effective in all states. You tell the trustee to help the person who is providing care to your pet after you die (the beneficiary) by paying for the pet’s expenses according to your directions as long as the beneficiary takes proper care of your pet. Many pet owners will prefer the traditional pet trust because it provides the pet owner with the ability to have tremendous control over the pet’s care.

The second type of pet trust, called a “statutory pet trust,” is authorized in almost 40 states. A statutory pet trust is a basic plan and does not require the pet owner to make as many decisions regarding the terms of the trust. The state law “fills in the gaps” and thus a simple provision in a will such as, “I leave $1,000 in trust for the care of my dog, Rover” may be effective.

How much property do I need to fund my pet trust?
You need to consider many factors in deciding how much money or other property to transfer to your pet trust. These factors include the type of animal, the animal’s life expectancy (especially important in case of long-lived animals), the standard of living you wish to provide for the animal, the need for potentially expensive medical treatment, and whether the trustee is to be paid for his or her services. Adequate funds should also be included to provide the animal with proper care, be it an animal-sitter or a professional boarding business, when the caretaker is on vacation, out-of-town on business, receiving care in a hospital, or is otherwise temporarily unable personally to provide for the animal.

The size of your estate must also be considered. If your estate is relatively large, you could transfer sufficient property so the trustee could make payments primarily from the income and use the principal only for emergencies. On the other hand, if your estate is small, you may wish to transfer a lesser amount and anticipate that the trustee will supplement trust income with principal invasions as necessary.

You should avoid transferring an unreasonably large amount of money or other property to your pet trust because such a gift is likely to encourage your heirs and beneficiaries to contest the trust. If the amount of property left to the trust is unreasonably large, the court may reduce the amount to what it considers to be a reasonable amount.

How do I fund my pet trust?
Direct transfers: If you create your trust while you are alive, you need to transfer money or other property to the trustee. You need to be certain to document the transfer and follow the appropriate steps based on the type of property. For example, If you create the trust in your will, you should include a provision in the property distribution section of your will that transfers both your pet and the assets to care for your pet to the trust. For example, “I leave [description of pet] and [amount of money and/or description of property] to the trustee, in trust, under the tenus of the [name of pet trust] created under Article [number] of this will.”

Pour over will provision: If you create your pet trust while you are alive, you may add property (a “pour over”) from your estate to the trust.

Life insurance: You may fund both inter vivos and testamentary pet trusts by naming the trustee of the trust, in trust, as the beneficiary of a life insurance policy. This policy may be one you take out just to fund your pet trust or you may have a certain portion of an existing policy payable to your pet trust. This technique is particularly useful if you do not have or anticipate having sufficient property to transfer for your pet’s care.

Pay on death accounts, annuities, retirement plans, and other contracts: You may have money in the bank, an annuity, a retirement plan, or other contractual arrangement that permits you to name a person to receive the property after you die. You may use these assets to fund both inter vivos and testamentary trusts by naming the

trustee of your pet trust as the recipient of a designated portion or amount of these assets. There may be income tax consequences to your estate when retirement plans are used in this way.

Who should be the trustee of my pet trust?
The trustee needs to be an individual or corporation that you trust to manage your property prudently and make sure the beneficiary is doing a good job taking care of your pet. A family member or friend may be willing to take on these responsibilities at little or no cost. However, it may be a better choice to select a professional trustee or corporation that has experience in managing trusts even though a trustee fee will need to be paid.

In closing, Professor Beyer sums up thusly:
Estate planning provides a method to provide for those whom we want to comfort after we die and to those who have comforted us. It is not surprising that a pet owner often wants to assure that his or her trusted companion is well-cared for after the owner’s death. By using a properly constructed traditional trust or a statutory pet trust, you may carry out your client’s intent to protect his or her non-human family members.

  1.  See A Dog’s Life (or Cat ‘s) Could Benefit Your Own, SAN ANTONIO EXPRESS-NEWS, May 18, 1998, at lB (explaining how some insurance companies lower life insurance rates for older owners of pets).
  2.  See Anne R. Carey & Marcy E. Mullins, USA Snapshots- Man’s Best Friend?, USA TODAY, Dec. 2, 1999, at lB (12%); Elys A. McLean, USA Snapshots – Fat Cats-and Dogs, USA TODAY, June 28, 1993, at lD (27%); Vital Statistics, HEALTH, Oct. 1998, at 16 (18%).

Many thanks to Professor Beyer for sharing a glimpse inside pet trusts. You are invited to attend the 9.5-hour 42nd Annual Midwest Estate Tax & Business PlanningTM Institute by video replay in various locales around Indiana the next 90 days. Click here to choose your convenient date and place.

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About our Law Tips faculty participant:
Professor Gerry W. Beyer joined the faculty of the Texas Tech University School of Law in June 2005 as the first holder of the Governor Preston E. Smith Regents Professorship. Previously, Prof. Beyer taught at St. Mary’s University and has served as a visiting professor at several other law schools including Boston College, The Ohio State University, Southern Methodist University, the University of New Mexico, Santa Clara University, and La Trobe University (Australia). Prof. Beyer was the recipient of the 2012-2013 Outstanding Researcher Award from the Texas Tech School of Law. As a state and nationally recognized expert in estate planning, Prof. Beyer is a highly sought after lecturer.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Law Tips, News0 Comments

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