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44 Fam. Ct. Rev. 612 (2006)

handle is hein.journals/fmlcr44 and id is 612 raw text is: 


                               Andrea  Kupfer  Schneider*
                                      Nancy  Mills

How  should lawyers negotiate? This article outlines an empirical study of how lawyers rate each other in
negotiation behaviors. After discussing what skills are needed for effective negotiation behavior, we then look
more closely at how family lawyers in particular are negotiating. Examining some troubling data, we find that
family lawyers appear to be more adversarial and less problem solving than other types of practitioners. We
conclude by discussing why this might be so and what the family law bar and family law professors should be
doing in the future to address this problem.

Keywords: negotiation; ethical; ethics; skills; lawyers; family law; effective

   As  discussed in this symposium,  how  lawyers  negotiate on behalf of their clients is
a crucial part of being an  effective family lawyer. The data  found in the Family  Law
Education  Reform  (FLER)   Project Final Report' and accompanying   survey2 demonstrate
the importance of a set of skills necessary to negotiation of family law disputes. These skills
include listening, setting realistic expectations for clients, problem solving, and collaboration.3
As this article shows, however, what lawyers actually think should happen-as demonstrated
in Hedeen  &  Salem's  study-versus   the reality of what actually happens  can be quite
different. We review data for family lawyers and how they negotiate based on a larger study
of how  lawyers negotiate.4
   The  first part of this article explains briefly the general results of the study and findings
for what makes  an effective negotiator. The second part of this article explains the data for
family lawyers in particular and points to some troubling differences between family law
and other areas of practice. The concluding section explores these differences and suggests
their implications for both family lawyers and those who teach them.

                              I. NEGOTIATION STUDY

   In 1976, Professor Gerald Williams  studied lawyers' approaches to negotiation through
a mail survey to about 1,000 attorneys in Phoenix. His seminal  study found two kinds of
styles-c ooperative and competitive.6 Twenty-five years later, this research seeks to revisit
these two approaches  and determine whether  there may be more  than just two negotiation
styles. The methodology used was  similar to Williams' study-sending surveys to attorneys
and  asking them to describe and  evaluate the lawyer with whom   they had most  recently
negotiated-whether   or not that particular dispute was settled. The updated study added
new  adjectives based on negotiation literature, so that the number totaled 89, and it used 60
bipolar pairs (descriptions of opposite negotiation behaviors). The  study also included

Correspondence: andrea.schneider@marquette.edu or nmillsesq@yahoo.com

FAMILY COURT REVIEW, Vol. 44 No. 4, October 2006 612-622
c 2006 Association of Family and Conciliation Courts

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