Sheldon Larky, a full-time family law mediator from Michigan, visited the Moritz College of Law to speak to our students about mediation advocacy and negotiation tactics. Sheldon was a delightful speaker who offered some interesting insights. Chief among those were that one should never negotiate at one’s own office. If a lawyer chooses to negotiate at her own office, she will have a difficult time using “departure” as a strategy. I wonder whether the value of “walking out” outweighs some of the advantages of negotiating on one’s own turf – such as setting the agenda, controlling the time of the meeting etc.
Another interesting point Sheldon made was that a good mediator/lawyer always takes time to visit a client’s office. He made the point by observing several things about me that he learned while sitting in my office. It rang true with me that a visit to a client or litigant’s office would provide valuable insights about that person that could be used as ice-breakers or to help gain the trust of the litigant in a subsequent mediation.
Sheldon offered another useful idea – when a client comes into a lawyer’s office, the lawyer should ask the client what the opposition would say about the client. While this idea is not novel, it is useful to remind lawyers (and prospective lawyers) that thinking about what the other side believes can be a useful reality testing and negotiation preparation technique.
–Sarah Cole
That is John Hermina’s website. I finally read the article that you are all talking about. I think it is a great model that we should use in Afghanistan. Perhaps when people start respecting their system of justice, there will be less problems in that country. Here is the article:
Bahrain: The rule of law shines brightly in the Arabian gulf
JOHN HERMINA
September 30, 2004
I checked this http://www.johnhermina.com and can not get on it, are you sure it is not http://www.herminalaw.com?
I really enjoyed the discussion by Ms. Schneider and Hyman regarding. I agree with most of it. Also, I agree with Mr. Clark and Hart on their comments regarding John Hermina. With regard to his lectures, yes, I have attended one long time ago and he is extremely good. I think you are right John Hermina will be lecturing at one of the campuses of the University of Maryland sometime this spring. I will post it once I have it or you may check his website http://www.johnhermina.com.
I also read John Hermina’s article which I think comes from his entitled Extracting Yes by John Hermina. He often gives free lectures at Universities. I think John Hermina’s next lecture is at George Washington School of Law.
I recently read an excellent article by attorney John Hermina regarding negotiation techniques. In the article, John Hermina draws on his ability to communicate in different language and how that translates into using the appropriate negotiation language. John Hermina’s analysis is excellent and provides an a new approach to thinking about negotiation. Certainly, John Hermina’s success in negotiating with individuals, corporations, and countries gives Hermina a great deal of authority on the topic
The rule about where to negotiate reminds me of the “rules” of statutory construction — that is, for each there seems to be an opposite one. The counter-rule — never go to them to negotiate, make them come to you — can be justified by the risk that, if you go to the other side, they will erroneously think that you are “weak” and thus be more reluctant to make a possible concession. And maybe negotiating on your turf, not theirs, will make the other side more uncomfortable and more willing to make a concession and get things over with. So I guess we need to pay attention to some more general rules or principles that will help us decide which “rule” about location to apply.
The suggestion that a lawyer should be able to walk out of the negotiation brings up another issue: conflict with the mediator. A negotiating lawyer may want to use deadline pressure, including the walkout game (either real or feigned), to extract that last concession from the other side. But a mediator probably wants to keep the negotiation going. This would particularly be true if the lawyer is negotiating in a distributive/positional manner, but the mediator wants to steer the negotiators to a more problem-solving, interest-based, or to a more relationship-enhancing mode. Should a lawyer accommodate his style to that of the mediator?
It’s very interesting what Mr. Larkey suggests although I would not have based it on the “departure” strategy (after all, you can just have your secretary remind you of your next meeting). I would advise going to the other side’s office for the reason Larkey gives–learning about them from their office –but also because it demonstrates that you’ve made the first cooperative move. They might want to reciprocate in kind. They might also be more willing to problem-solve when they are comfortable in their own surroundings. Anyway, it’s a good ongoing debate as there are also lots of advantages to hosting as well.