Tag Archive | "Mediation"

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.


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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Introductory Interdisciplinary Collaborative Practice Training, May 11-12

ICLEF has partnered with the IACP to provide a comprehensive two-day training that will help legal, mental health and financial professionals gain a strong foundation in Collaborative Practice. Taught by a highly experienced interdisciplinary team, the training focuses on the skill sets of each profession and the integration of those skills in the process. Participants will be introduced to the theories, practices, and skills needed to begin a Collaborative practice. This program will also be helpful to those who wish to refresh their initial Collaborative training experience and deepen their understanding, while networking with other colleagues in the Collaborative community.

No need to travel far….
ICLEF is bringing Internationally acclaimed trainers Mariette Geldenhuys, Barbara Hummel and Lisa Schnieder right here to the Hoosier state to teach a two-day Introductory Interdisciplinary Training, which meets IACP Standards and is designed to provide you with the foundation necessary for success as a Collaborative practitioner.

What will you learn?
• How the collaborative team process works, the professionals involved and the wisdom of teams
• Advocacy in a collaborative context and understanding advocacy needs
• The importance of neutrality
• Understanding of interest-based negotiation
• Knowledge of Spectrum of Interest/ Core Concerns
• Facilitation of an initial client meeting and how to explain the process
• Overcoming resistance and perspectives of fairness
• Comprehensive Team Protocols,  screening and process design
• Professional team preparation and critical debriefing

What is the IACP?
The IACP is the International Academy of Collaborative Professionals, an international community of legal, mental health and financial professionals working in concert to create client-centered processes for resolving conflict.

Vision: Transform how conflict is resolved worldwide through Collaborative Practice.

Mission: IACP supports Collaborative Practice as a conflict resolution option worldwide by:
• establishing & upholding the essential elements, ethical & practice standards of Collaborative Practice;
• fostering professional excellence by educating and providing resources to Collaborative practitioners;
• leading and integrating the Collaborative community; and
• promoting the growth of Collaborative Practice.

Our IACP trainers are experienced pioneers in Collaborative Practice
Lisa Schneider has participated in the establishment, growth and on-going training of Collaborative Practice Groups around California’s Bay Area since 2002. She regularly presents at annual California Collaboration Conferences and is a part of a Collaborative Divorce Training Consortium, training practitioners nationally and internationally. Lisa believes that sharing experiences and learning from other financial specialists is instrumental in the development of the financial professionals’ role in Collaborative cases. She is an active member in many associations and committees, and is the recipient of the 2013 Eureka award in recognition of her commitment and dedication to Collaborative divorce.

Mariette Geldenhuys is Founder and Past President of the Ithaca Area Collaborative Law Professionals (IACLP), Mariette brought Collaborative Law to the Ithaca, New York community in 2003 and has actively promoted its growth and expansion. She designed public education presentations and instituted a mentoring program for newly admitted attorneys for the IACLP.  Mariette has presented Collaborative Practice training (both basic and advanced training) since 2006 in New York, New York; Ithaca, New York; Anchorage, Alaska; Dutchess County, New York; and Binghamton, New York. She has been a workshop coordinator and presenter at the Annual Forum of the International Academy of Collaborative Professionals from 2005 through 2010. She was also a presenter at a symposium on “No Borders, No Barriers: Legal issues for Lesbian, Gay, Bisexual and Transgender Clients and their families in the United States and Canada” in Niagara Falls, Canada, in June 2006.

Barbara Hummel, M.Ed., LPC is a Licensed Professional Counselor in private practice in Cincinnati, Ohio since 1988.  Before beginning her Collaborative work, Barbara conducted Effective Parenting seminars for 15 years, authored numerous articles addressing family issues and communication skills and appeared on local television and radio segments focused on topics related to effective parenting, successful co-parenting relationships, stepfamilies and divorce.  Barbara began working as a Family Relations Specialist in the Collaborative process in 2001 and became a family mediator in 2004.  Her work focuses on assisting couples and families resolve their differences and develop more respectful relationships.  Barbara is a past Co-Chair for the Cincinnati Academy of Collaborative Professionals in Cincinnati, OH, and has served on the local board for over ten years.  Currently, Barbara is a faculty member for the International Academy of Collaborative Professionals.


Come as a team and SAVE as a team!
To help make the decision to attend less of an economic one, and to promote the significance of the “interdisciplinary team approach” in Collaborative Practice, ICLEF extends an opportunity to join us as a team and save.

After the initial registrant, save 50% on each additional registration for our training when you register to attend the training with another professional colleague!  In other words, as many as three interdisciplinary colleagues can attend for the tuition of two!

For example, if you as an attorney register to attend at full tuition, when you invite a Financial Professional and/or Mental Health Professional to join you, they may attend at 50% off the standard tuition.

Pass along the savings or share the savings with your colleagues and enhance the training experience for you all!

$450 standard tuition (includes Credit Hours, Training Materials, and Refreshments)

$225 colleague tuition – available when professionals register together, after one professional registers at standard tuition. (includes Credit Hours, Training Materials, and Refreshments)
       – Use Discount Code “colleague” to save 50% on second registrant tuition
– Use Discount Code “colleague2” to save 50% on second and third registrant tuition


Introductory Interdisciplinary
Collaborative Practice Training
12 CLE / 12 CME – May 11 & 12

– ICLEF Conference Facility, Indianapolis



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Corporate Panel Lessons

Notes on Negotiation
By Marty Latz, Latz Negotiation Institute

I recently served on a panel of expert negotiators from the business and legal communities. Together the panel had over 100 years of experience negotiating deals, and settlements worth billions.

Here are some of the lessons, along with my own thoughts.

•    Set aggressive goals – then get the information to achieve them. One panelist described the negotiation for her dream job, which started while she was in law school. What did she do? Figured out exactly what she wanted and then spent several years learning about that industry and how she could add value to the organization that would eventually hire her as its top lawyer.

•    Re-evaluate your goals in long-term negotiations. Some negotiations last years. They require specialized strategies. In all negotiations, set aggressive, specific goals to start. For long-lasting negotiations, re-evaluate those goals in light of information gathered, fluctuating leverage, etc. Of course, there’s not likely a need to revise your goals weekly. But do it regularly, especially when significant changes occur.

•    Focus on your counterpart’s personal self-interest. Several panel members emphasized the need to find out counterparts’ personal drivers, pain points or self-interests. It’s especially crucial in negotiating with large entities. Why should that mid-level professional do the deal? Are they getting pressure from their boss to show progress or clear their desks of long-running disputes? How can you make them look good internally?

•    Gather information in unconventional ways. One panel member described several powerful information-gathering techniques.

  • Public companies are required to report critical information – get it. This panel member once analyzed a company’s public statements and financial reports and deduced its actual authority for the deal on which he was working. He got the entire amount, despite that company’s early false statements about its authority. Top mergers and acquisitions lawyers know this well, as many analyze the terms and conditions of their counterpart public companies’ previous deals and use this precedent in negotiating their deals’ terms.
  • Always be on the lookout for information. One panel member described a complex negotiation involving multiple impasses. After the last impasse, as he was walking out of the mediation, he inadvertently glanced into the room where his counterparts had been strategizing. Though the whiteboard had been erased, he could still notice the outlines of some critically important numbers. Wow.
  • Read everything and talk with everybody. Few negotiators really spend the time doing their strategic due diligence on their counterparts. Talk with folks who have negotiated with your counterparts previously. Read everything they have written. Find out their reputations. Talk to industry experts. Mine your social networks and online resources.

•    A strong case may involve weak leverage. One example involved millions of dollars in a litigation matter where the very survival of the company was at stake. And the company was likely to lose. Yet it had decent leverage. How? The company on the “winning” side had no interest in spending a ton of money to win only to likely get little in bankruptcy court. This panel member settled his losing case for pennies on the dollar.

•    Limited vs. full authority is usually advantageous. Parties with authority have power, right? Wrong. They have the power to concede. One panel member described a negotiation in which he flew to London to negotiate a big deal. He knew after walking in to the meeting he would get a great deal. How? His counterpart at the table was its top guy, the one with its ultimate authority. From that point on, every time his counterpart requested a concession, this panel member called home to try to get more authority. He got an excellent deal and got his counterpart to even pay for his flight home.

•    Fair and reasonable standards can drive the result when you have weak leverage. Sometimes there’s nothing you can do to strengthen your weak leverage. Now what? Focus on fair and reasonable standards. One panel member described negotiations worth hundreds of millions of dollars with the federal government where the government – if it couldn’t negotiate a deal – could legally just stop payment on the services provided. That’s weak leverage. What did this panel member do?  Focused on independent objective fair and reasonable standards, like: precedent and market value (what the government had done in similar circumstances in the past with them and other similarly situated companies); costs and inflation (how their increased costs and inflation led to higher amounts to be paid); and experts’ opinions (what independent objective experts suggested was fair.)

•    Don’t ask for their bottom line – ask what they want and why. An experienced mediator on the panel shared one of his “secrets” –  simply ask what the other side wants and why. And don’t ask for their authority or bottom line, issues where many will bluff or lie or prematurely commit – often reducing their ability to reach a solution later without losing credibility.

Latz’s Lesson: These strategies sound simple. They are. The challenge is systematically putting them into practice.


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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Civil & Family Mediation 40 Hour Courses Announced for 2017

Civil and Family 40 hour mediation courses provide an excellent learning environment with practical experience in mediation. Each program has a professional & informative approach to the psychological, legal and business aspects of mediation. These courses provide the 40 hour instruction certified as appropriate for mediation training by the Indiana Commission for Continuing Legal Education under the Indiana Trial Rule – ADR.

The Family to Civil Crossover Training provides 16 crossover hours as well as 9 CLE hours and 3 Ethics hours and is designed for those that have already attended and completed an earlier Family Mediation Training session and now wish to complete the Civil Mediation Training.


June 21-25, 2017 –  24 CLE / 6 E   (40 Civil Med. Hours)
Limited to 42 participants!
LIVE IN-PERSON ONLY! – ICLEF Conference Facility, Indianapolis

June 21-23, 2017  –  9 CLE / 3 E   (16 Med. Crossover Hours)
Limited to 6 participants!
LIVE IN-PERSON ONLY! – ICLEF Conference Facility, Indianapolis

August 9-13, 2017  –  24 CLE / 6 E    (40 Fam. Med. Hours)
Limited to 42 participants!
LIVE IN-PERSON ONLY!  ICLEF Conference Facility, Indianapolis



Attorney at Law – Mediator

W. Douglas Lemon was admitted before the Indiana State Bar in 1995, as well as the U.S. Northern and Southern District Courts. Memberships include the Indiana State Bar Association and the Kosciusko County Bar Association. Mr. Lemon graduated from Hanover College (BA) in 1992 and received his JD from the Indiana University School of Law (Bloomington) in 1995. In a career spanning more than 20 years, Mr. Lemon has built a wide-ranging and diverse practice including: insurance defense, plaintiff’s litigation, criminal defense, estate planning and probate, real estate transactions, guardianships and adoptions, family law, business development, and juvenile law. Since completing the Civil Mediation Training course in 2008, Mr. Lemon’s practice has increasingly concentrated on both civil and domestic mediation, and he has served as a frequent Assistant Trainer in subsequent courses.

In addition to pursuing his law practice, Mr. Lemon attended Grace Seminary in Winona Lake, Indiana from 2003-2005 and has been serving as the Senior Pastor of Oak Grove Community Church (Warsaw) since 2005.

Senior Judge, Mediator

Terry C. Shewmaker practiced law for over 23 years serving as a civil attorney as well as a deputy prosecuting attorney. Thereafter he served 18 years as the elected Judge of Elkhart Circuit Court. He handled thousands of cases including tort claims, mortgage foreclosures, domestic relations, and commercial litigation, along with criminal cases. Judge Shewmaker is certified as a Senior Judge and registered mediator.

Attorney at Law – Mediator, Lake County

Joy L. Colwell is trained in both civil and family mediation. In addition to writing the manual used in this seminar, she has been training with Thomas R. Lemon since 1994. Her background also includes general legal practice as well as litigation experience. Ms. Colwell was admitted to the Indiana Bar in 1984 and the Illinois Bar in 1988. She is a graduate of Indiana University, B.A., 1980; Indiana University School of Law, Bloomington, J.D., 1984 (cum laude). She has also taught such subjects as Dispute Resolution and Negotiations.

Attorney at Law – Mediator
Baker & Gilchrist LLC, Avon & Indianapolis

Caroline Gilchrist is a partner in the firm of Baker & Gilchrist, with offices in Avon and Indianapolis. She first became interested in mediation in 1987 when she completed the forty-hour family law mediation training program. She has been a mediator for the Indiana Special Education Mediation Services. She has been trained as a civil mediator since 1993. Ms. Gilchrist received her undergraduate degree from Ball State University and graduated from the Indiana University School of Law, Bloomington, Indiana, in 1982. The focus of her law practice is mediation and litigation, specifically, family law, medical malpractice and personal injury. She has served on the Family Law Executive Committee of the Indianapolis Bar Association for a number of years and was chairperson in 1995. She is co-chairperson of the mediation subcommittee of the family law section of the Indiana State Bar Association. She has participated in “Settlement Week,” and has spoken in a variety of seminars regarding the subject of mediation.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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