© 2014 Bill Eddy, LCSW, Esq.
Whether you are a lawyer, mediator, collaborative practitioner or other professional involved in dispute resolution, you know that making proposals or “settlement offers” is central to eventually reaching agreements for the benefit of your clients. Yet, traditionally, we have thought of making proposals as part of our professional job, rather than teaching our clients how to do this.
Two significant changes in recent years are causing this to change: Courts (and budget cuts) are driving more parties to use out-of-court decision-making (such as mediation and other negotiation methods); and Clients are demanding to play a greater role in their cases from start to finish. Furthermore, there are growing indications that parties are more likely to follow their own agreements than orders made by a court. This article explains a method of teaching clients how to make proposals, and why your clients will thank you for providing this skill.
Educating About Making Proposals
The most important aspect of making proposals is using flexible thinking. There are at least three fundamental concepts to teach clients about flexible thinking as soon as possible:
1. Make Two Proposals: Clients need to be prepared to make two or more proposals on each likely issue, from the start. This may take repeating, as they often have only one possible outcome in mind – 100% their way! Yet, agreements are rarely made after only one proposal (just watch politicians in the news for evidence of this). The person who has a second proposal ready may prevail, or at least gain the respect of the other side.
2. Ask Questions: Clients need to learn to ask questions – not just make demands – so they can revise their proposals during negotiations to more realistically lead to agreements. Many clients are so used to making demands and over-reacting to the proposals of others, that they miss opportunities to gather information by asking questions of the other party and making new, more refined proposals.
3. Preparation: Most lawyers know that good preparation is the key to successful negotiations. Therefore, lawyers can teach their clients to gather information, to think ahead about how the other party or parties will respond to proposals, to consider their own limits in the negotiating process (such as a “bottom line” or their own Best Alternative to a Negotiated Agreement (BATNA)), and to discuss in advance how to respond to various proposals the other party may make.
One of the first steps of making proposals is to gather information about realistic outcomes of the conflict at hand. If it’s a legal dispute, lawyers can share their expertise and knowledge about the solutions to prior similar cases. Letting clients know legal standards – and how flexible these standards may be or not – will help them start thinking about what proposals they want to make.
Clients need to learn about various alternatives that others have used in similar circumstances, and any legal limitations that preclude some proposals. They need to learn why their case is different from others they have heard about – including from friends and family members with lots of opinions but little knowledge. They need to look at what’s important to them and what’s important to the other party to the dispute. Only then can they hope to make realistic and persuasive proposals.
Four Simple Steps for Making a Proposal
Teaching the following 4-step method is easy for clients to grasp and practice. (See client handout Making Proposals) They can learn it in advance of a negotiation session, or even in the middle of negotiations, such as during a mediation session.
1. Making a proposal usually involves suggesting Who does What, When and Where.
2. Then, the other person asks questions about the proposal.
3. Then, the one making a proposal answers those questions and provides any further information.
4. Then, the other person responds by saying “Yes.” “No.” or “I’ll think about it.” If the respondent says “No,” then it’s up to the respondent to make a new a proposal.
It’s important to point out that just reacting to a proposal is unhelpful, but very tempting. Difficult clients often criticize the proposal rather than asking questions about it. (“How could you even say such a thing?” “Why didn’t you propose that a year ago!”?) Reminding them of these four steps makes it easier for them to respond productively. This also discourages them from simply taking a position and saying “No” to everything else – because they have to make a proposal after each “No” they give.
Practice Making and Responding to Proposals
Professionals can help their clients by encouraging them to write down a list of issues that need to be negotiated, followed by two proposals that the client is prepared to offer for each issue (usually saving the second one until they hear a response to their first). Then, the professional can discuss additional information that may be helpful, such as how similar proposals have worked out in other cases – or not.
Then, the client can discuss how they expect their proposal will be received. Perhaps even rate the likelihood of acceptance on a percentage scale. (“I think there’s a 50% chance the other person will accept my proposal.”) You can say what you think will happen. (“I think it has only a 10% chance, so let’s work hard on your second proposal.”) The benefit of helping the client think about this in advance is that he or she will be less surprised and more able to stay focused on problem-solving during negotiations.
It may also be helpful to role-play making a proposal with the client - especially on a difficult topic. You can have the client start out playing the other party, and you can play the client. Then switch roles. This helps the client think about being in the other person’s shoes and makes them more realistic about how their proposal will be received.
Lawyers and other professionals who teach their clients how to make proposals may fear that they will work themselves out of a job. But instead, they may impress their clients with how valuable they can be in the negotiation process. After all, clients who are well-informed about legal standards and realistic proposals may be much more willing to spend time with professionals than those who don’t understand the value of these out-of-court skills. And clients appreciate learning these skills, because they can use them in every aspect of their lives, including at work, with neighbors, with family members and in future conflicts with the other party, such as in a divorce. So I propose that you give it a try!