Tag Archive | "Mediation"

Effective Threats

Marty Latz will be presenting again this year at the ICLEF Conference Facility!
December 1 – Gain the Edge! Negotiating to Get What you Want, 6 CLE / 6 CME / 1 E

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Notes on Negotiation: Effective Threats
By Marty Latz, Latz Negotiation Institute

“I’m gonna make him an offer he can’t refuse,” Don Vito Corleone (Marlon Brando) says in The Godfather. Perhaps the greatest movie threat ever, Corleone had dominant negotiation leverage – his counterpart faced certain death if he refused Corleone’s “offer.”

By contrast, the media recently reported that President Donald Trump instructed Interior Secretary Ryan Zinke to speak with Sen. Lisa Murkowski (R-Alaska) on health care and “remind” her of the Interior Department’s control of many issues affecting Alaska.

Trump’s threat didn’t change her vote against the Republican plan.

Of course, I’m not suggesting Trump behave like the Godfather. But there are effective and ineffective threats.

If and when and how should you use threats?

First, understand the fundamental nature of threats. Northwestern Professor Adam Galinsky and Brigham Young Professor Katie Liljenquist define a threat as “a proposition that issues demands and warns of the costs of noncompliance” in “Putting on the Pressure: How to Make Threats in Negotiations” in Harvard’s Negotiation newsletter.

Threats constitute an often-unspoken element in almost all negotiations. They’re actually a super aggressive effort to exercise leverage. Leverage, as my regular readers know, relates in part to the strength of your alternative to a deal with your counterpart (your Plan B if your deal is Plan A) relative to their alternative to a deal with you (their Plan B).

Your ability to negatively impact their perception of their Plan B through a threat – the costs of noncompliance with your offer – strengthens your leverage. The worse you can make their Plan B seem with a threat, the more likely they will accept your Plan A by comparison.

Threats are also not inherently evil. As Galinsky and Liljenquist note, “[r]esearchers have found that people actually evaluate their counterparts more favorably when they combine promises with threats rather than extend promises alone. Whereas promises encourage exploitation, the threat of punishment motivates cooperation.”

Understanding this, follow these four research-based guidelines in deciding how to use threats.

1.    Strategically Plan Your Threats

“Put your bike away now, or no electronics for a week,” you might threaten after you find your 10-year-old’s bike in the driveway for the umpteenth time.

Every parent has lost their temper at some point. Does it help? Usually not.

Threats based on anger, volatile emotion, and momentary pressures are almost always counterproductive. Galinsky and Liljenquist note that “multiple studies have linked anger to reduced information processing, risky behaviors, and clouded judgment.”

Strategically planning your threats in advance, not reacting instinctively, addresses these concerns. Such planning also reduces the possibility of counterthreats and retaliation, which could escalate and spiral out of control.

The goal of a threat is to satisfy your interests. Use it to motivate cooperation, not to punish.

2.    Threaten Only in Limited Circumstances

Northwestern Professor Jeanne Brett and her colleagues, according to Galinsky and Liljenquist, have identified three circumstances in which threats can be necessary and effective:

  • Getting your counterparts to the table when facing a seemingly intractable deadlock (like threatening aggression or sanctions to get a recalcitrant country to engage in peace talks);
  • Breaking an impasse by signaling strength and fortitude (bullies sometimes only respond if you demand respect by flexing your muscles); and
  • As a mechanism to ensure compliance and implementation of an agreement.

The reason to only threaten in limited circumstances? Even well-crafted threats may carry significant negative consequences, as noted by Galinsky and Liljenquist, including:

  • Provoking resistance and anger, thus decreasing your counterparts’ likelihood of granting your wishes;
  • Undermining an agreement’s legitimacy if your counterpart believes it resulted from coercion; and
  • Inciting a desire for vengeance (“[p]sychologists,” Galinsky and Liljenquist write, “have found that revenge has biological foundations, persisting until it is satisfied, like hunger. The more severe a threat’s consequences, the more extreme the retaliation is likely to be.”)

Don’t make threats a regular part of your repertoire. Selectively use them.

3.    Credible Threats Work – Empty Threats are Counterproductive

Don’t start a war you’re not prepared to fight and finish. Former President Barack Obama famously threatened Syria with severe consequences if it crossed a “red line” by using chemical weapons.

What did he do after the world saw unmistakable evidence it had crossed his red line? Said he didn’t have authority from Congress to even engage militarily and negotiated a deal to stop it from happening again.

Did this prevent Syria from doing it again? No. Did Obama and the United States lose significant credibility relating to its future promises and threats with Syria and the rest of the world? Yes.

Reputations matter, especially relating to the credibility of threats.

4.    Frame Your Threats to Satisfy Your Counterparts’ Interests

Effective threats should also be framed so they can be realistically satisfied and not engender ill will. They should thus:

  • be specific and detailed;
  • address your counterpart’s interests;
  • be delivered respectfully in a measured, serious tone;
  • include meaningful consequences;
  • link to a timeline; and
  • possibly include an escape route if circumstances change.

Also use them sparingly in situations involving a future relationship between the parties. Threats can backfire long-term.

Then-President Ronald Reagan in 1981 threatened 12,000 striking air traffic controllers with the loss of their jobs if they did not report back to work “within 48 hours” of his statement. 11,359 did not comply. He fired them.

According to Galinsky and Liljenquist, “[m]any observers view Reagan’s controversial threat and follow-through as a pivotal moment in his presidency and the foundation for future political victories.”

Latz’s Lesson:  I’ve made you an offer here you can easily refuse. Don’t. As Clint Eastwood/Dirty Harry would say – “make my day.”

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Marty Latz will be presenting again this year at the ICLEF Conference Facility!
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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When Going Through a Mediation, Divorce, Child Support, or Paternity Action Make Sure You or Your Attorney are Aware of These Issues

By Richard Mann, Richard A. Mann, P.C., Indianapolis

People going through divorce, paternity, or child support matters may make decisions that unknowingly have significant financial affect upon them. Under Indiana Law child support orders are required to address the dependency exemption for children.   See I.C. 31-16-6-1.5 which states” (a) A court shall specify in a child support order which parent of a child may claim the child as a dependent for purposes of federal and state taxes.

(b) In determining which parent may claim the child as a dependent under subsection (a), the court shall consider the following:

(1) The value of claiming the child as a dependent at the marginal tax rate of each parent.

(2) The income of each parent.

(3) The age of the child or children and the number of years that the child or children could be claimed as a dependent or dependents.

(4) Each parent’s percentage of the costs of supporting the child or children.

(5) If applicable, the financial aid benefit for postsecondary education for the child or children.

(6) If applicable, the financial burden each parent assumed under the property settlement in a dissolution proceeding.

(7) Any other relevant factors.”

Many people think the custodial parent receives the exemption.  That is the default under federal law if the order is silent.  Along with the dependency exemption there are other considerations such as head of household status especially in cases with equal parenting time, lifetime learning credits, child care creditunder 17 child credit, etc. As far as the child care credit, a number that goes into the child support calculation is the cost of child care.  A little known or used provision of the Indiana Child Support Guidelines states as follows: In circumstances where a parent claims the work‑related child care credit for tax purposes, it would be appropriate to reduce the amount claimed as work‑related child care expense by the amount of tax saving to the parent.  The exact amount of the credit may not be known at the time support is set, but counsel should be able to make a rough calculation as to its effect See commentary 3E1. What this means is that number could be reduced by the tax benefit by the custodial parent therefore reducing the child support. This may be fair as the non-custodial parent’s support includes a percentage based upon the relative income and pays the child care with no tax benefit.

I regularly am involved, when I mediate, when one or both parties are not aware of these provisions or the effect upon their case.  Many lawyers have not taken a tax course or it has been many years since they did.  In today’s family law setting you must be aware of many areas of law, since as explained above, tax could have a significant effect on your case, understanding of pensions and retirement may be a part of divorce, businesses may need dividing, social security benefits (the difference between SSI, SSD and SSR), food stamps, vouchers, employer provided health insurance, and bankruptcy is often a possibility in such matters.

The following article is an article from the IRS outlining many tax considerations.  Summer Camp may even qualify for the child care credit.

Many parents send their children to summer day camps while they work or look for work. The IRS urges those who do to save their paperwork for the Child and Dependent Care Tax Credit. Eligible taxpayers may be able claim it on their taxes in 2018 if they paid for day camp or for someone to care for a child, dependent or spouse during 2017.

Here are a few key facts to know about this credit:

  1. Qualifying Person. The care must have been for “qualifying persons.” A qualifying person can be a child under age 13. A qualifying person can also be a spouse or dependent who lived with the taxpayer for more than half the year and is physically or mentally incapable of self-care.
  2. Work-Related Expenses. The care must have been necessary so the taxpayer could work or look for work. For those who are married, the care also must have been necessary so a spouse could work or look for work. This rule does not apply if the spouse was disabled or a full-time student.
  3. Earned Income. The taxpayer — and their spouse if married filing jointly — must have earned income for the tax year. Special rules apply to a spouse who is a student or disabled.
  4. Credit Percentage/Expense Limits. The credit is worth between 20 and 35 percent of allowable expenses. The percentage depends on the income amount. Allowable expenses are limited to $3,000 for care of one qualifying person. The limit is $6,000 if the taxpayer paid for the care of two or more.
  5. Care Provider Information. The name, address and taxpayer identification number of the care provider must be included on the return. The childcare provider cannot be the taxpayer’s spouse, dependent or the child’s parent.
  6. IRS Interactive Tax Assistant tool. Use Am I Eligible to Claim the Child and Dependent Care Credit? tool on IRS.gov to help determine if eligible to claim the credit.
  7. Dependent Care Benefits. Special rules apply for people who get dependent care benefits from their employer. See Form 2441, Child and Dependent Care Expenses, has more on these rules. File the form with a tax return.
  8. Special Circumstances. Since every family is different, the IRS has a series of exceptions to the rules in the qualification process. These exceptions allow a greater number of families to take advantage of the credit. For more information, see IRS Publication 503, Child and Dependent Care Expenses.

Even if the childcare provider is a sitter in the home, taxpayers may qualify for the credit. Taxpayers who pay someone to come to their home and care for their dependent or spouse may be a household employer. They may have to withhold and pay Social Security and Medicare tax and pay federal unemployment tax. Find more on that in IRS Publication 926, Household Employer’s Tax Guide.

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Richard A. Mann has been practicing Family Law for more than 37 years in the Indianapolis area and throughout the State of Indiana. He is a Certified Family Law Specialist as certified by the Family Law Certification Committee, a Registered Family Law and Civil Law Mediator and Guardian ad Litem and Parenting Coordinator. Mr. Mann and his firm, Richard A. Mann, P.C. Attorneys at Law, are proud to have been one of the firms who represented Same-Sex couples who were successful in overturning Indiana’s ban on Same-Sex marriage. He continues to fight discrimination in the law.

While a large portion of Mr. Mann’s practice is in the Family Law area he also represents several corporations on contract, personnel and other matters. He also has a varied General Practice in wills, estates, juvenile matters, collections, probate throughout the state of Indiana. Mr. Mann has tried murder cases as well as a death penalty case.

Mr. Mann has been selected for inclusion in Super Lawyers SuperLawyers Edition for 2009, 2010, 2011, 2012, 2013, 2014, 2015 & 2016.

Follow Richard Mann on FacebookTwitter, or read more blogs by him here.

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Marty Latz New 2

Dealing with the Devil

Notes on Negotiation
By Marty Latz, Latz Negotiation Institute

British Prime Minister Winston Churchill in 1940 refused to negotiate with Hitler.  President George W. Bush in 2001 refused to negotiate with the Taliban.

Nelson Mandela, by contrast, reached out in 1985 to negotiate with South Africa’s white government, one that enforced a racist regime and had imprisoned him for over two decades. And President Barack Obama negotiated with Iran, which supports terrorist groups.

“Should you bargain with the devil?” is the question in the provocative book Bargaining with the Devil: When to Negotiate and When to Fight, by Harvard Program on Negotiation Chair Robert Mnookin.

Mnookin’s book transcends war and peace, offering lessons that can be applied to everyday situations. After all, who hasn’t felt betrayed by a business partner, friend, or family member, and felt like hitting back in lieu of talking?

Mnookin advises the following in determining whether to engage, with my own analysis here too.

1.     Systematically evaluate the costs and benefits
Our knee-jerk instinctive reaction toward negotiating with a devil may be “Absolutely not. He’s a devil.” This may overlook, however, your interests that may be satisfied with a less reactive, more strategic evaluation.

Mnookin suggests an initial framework to help make this decision, largely derived from the classic Getting To Yes: Negotiating Agreement Without Giving In by my law school professor Roger Fisher and William Ury.

He suggests the following, which I relate to my Five Golden Rules of Negotiation for the benefit of longtime readers.

  • Identify the parties involved and their fundamental interests (a crucial element of Golden Rule One: Information is Power-So Get It!);
  • Consider each side’s alternatives to negotiation (the major component of Golden Rule Two: Maximize Your Leverage. I call alternatives Plan Bs – Plan A being a negotiated agreement and Plan Bs the result if you don’t negotiate);
  • Evaluate the costs involved if you negotiate (costs constitute an independent standard underlying “fair” agreements – Golden Rule Three: Employ “Fair” Objective Criteria);
  • Brainstorm whether any options/agreements exist that would better satisfy the parties’ interests than their Plan Bs (evaluating options relative to your Plan B involve Golden Rule One (interests and options) relative to Golden Rule Two (Plan Bs)); and
  • Assess whether and how any deal can be implemented (can you trust the devil to fulfill its commitments and/or enforce them independently through courts or other mechanisms (whether a deal will stick and trust factors fit within Golden Rule One).

I would add one piece of advice to Mnookin’s. This strategic evaluation and preparation make sense for all potentially significant negotiations – not just those with “devils.”

2.    Get advice from third parties about your Plan Bs and these factors
I’m a big fan of strategic brainstorming and asking trusted advisors, friends and experts for advice before negotiating. Mnookin recommends this in determining whether to even engage. I agree.

Doing this helps us make more reasoned evaluations and avoid emotional traps that can cloud our judgment in stressful situations. Differing perspectives and ways of thinking can also lead to better analyses and conclusions.

There’s no downside to requesting advice here and a potentially big upside.

3.    When in doubt – presume to negotiate
If you’ve done your strategic analysis – your advisors disagree – and you’re still unsure what to do – Mnookin suggests you negotiate.

“Wait,” you respond. “Shouldn’t there be a presumption against negotiating?” “After all,” Mnookin writes, “this is the Devil we’re talking about!”

No. Why? Because “negative traps,” according to Mnookin, can distort your thinking and analysis. Traps include tribalism, demonization, dehumanization, moralism, zero-sum thinking, the psychological impulse to fight or flee, and the call to battle.

A guideline that makes you articulate the reasons NOT to negotiate has great value.

4.    Be especially pragmatic if you’re representing others
Finally, personal moral intuitions and morality should play a role. It may simply be morally repugnant for you to engage with a “devil.” And going against your morals has real costs. Despite the pragmatic factors urging you to engage, Mnookin notes, deciding not to negotiate “based on moral intuitions may be virtuous, courageous, and even wise.”

However, he recommends this only if you “alone bear the risk of carrying on the fight.”

Your personal morality should not override the above factors when your decision directly impacts others who may have different moral judgments and who rely on you to decide.

Business executives representing shareholders, union representatives on behalf of workers, and political leaders representing constituents should not decide based on their personal morals, writes Mnookin.

Latz’s Lesson:  Whether to negotiate with the devil presents a devilish dilemma. Solve this by strategic preparation, relying on outside advice, presuming to negotiate, and incorporating morality and agency issues into the equation

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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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Elder Law Mediation – June 28

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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