Friday, February 6, 2009
Yesterday (Thursday) evening we didn't get to the Gifford article, The Synthesis of Legal Counseling and Negotiation Models: Preserving Client-Centered Advocacy in the Negotiation Context, so here's what I had hoped we would focus on.
The first point is the one that Gifford makes at the end, i.e. he wants us to treat his article as a starting point for further dialog about improving the generally accepted models of counseling and negotiation. In that spirit, let's try to pose some questions and come up with some questions to move that dialog forward, in our class at least.
The second point is one that we touched on in class: the cyclical nature of counseling and negotiating. Gifford points out that negotiations happen "over extended periods of time.. and are intermixed with meetings between the attorneys and their clients." The key learning here, I believe, is that we need to avoid thinking of interviewing, counseling, and negotiating as three separate activities. In practice, particularly with clients who are watching every penny and don't want to take up your billable time unless absolutely necessary, it is easy to fall into the trap of treating the initial interview as a one-shot deal.
With the linear model -- the one we want to avoid -- at the interview you get your marching orders, which you then execute by bargaining with opposing counsel, and after you've negotiated a deal you go back to the client and ask for a yea or nay. But Gifford reminds us that representation is dynamic and that a "party's expectations for the negotiations and the emphasis placed on one particular issue, as compared with other issues, are not fixed and static, but continuously changing during the negotiations."
The next points I want us to think about are the problems that Gifford says we need to solve, namely (a) the a boundary role that the lawyer plays and (b) lawyer dominance.
Then, in Part III, we come to his proposal. What Gifford suggests is a pre-negotiation counseling conference at which the attorney and te client discuss four topics. One of the questions I have for you is how you would prepare yourself and your client for that conference. What difficulties might you encounter in simply setting up what, on first reading, seems like an eminently sensible and unobjectionable meeting.
My second question has to do with the concession Gifford makes toward the end of his section on the pre-negotiation conference, that is the fact that some disputes are just not amenable to integrative solutions. For those distributive problems we have what Gifford calls a "less emotionally satisfying task." So my question is this: How would you prepare yourself and your client for that kind of conversation?