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Settlement discussions where my client does not want to sue, and the counterpart just wants to procrastinate as much as possible

#1 · May 30, 2022, 10:18 am

Quote from Bel on May 30, 2022, 10:18 am
Hi Guys!

I find myself in this professional predicament.

Context

I, as lawyer, sent a warning letter to a counterpart (a works company) for damages (defects in works for home renovation) for one of my clients.

The lawyer of the counterpart contacted me and immediately proposed settlement. My client immediately agreed on the terms of the settlement, which was very favourable to us, and I prepared the draft settlement and sent it to the other lawyer.

Then my client found out that several documents (certifications) due under the law at end of works were never given to her by the counterpart. I asked the other lawyer that his client may produce these certifications, which were due under the law and were preliminary to the settlement for us.

Power moves start?

Then the other lawyer basically started procrastinating as much as possible:

he started referring to his client being busy, and the draft certificates would be ready not immediately but in three days;

then after three days, his client had a problem in the software to issue the certificates, and they would be ready in one week;

then after one week he (the lawyer) was busy, and he would need some more time to send me the draft certificates that his client had already sent to him;

then he asked me to confirm my address (which he already knew) to mail them;

one week came by and documents did not arrive; I pushed, and he said his client had assured him to have mailed them but he would check;

after four days (let's say on day "X"), he assured me his client had mailed the documents.

Throughout this, he started constantly tasking me on things I would have to do anyway ("check", "update me", and so on, to which I responded by self-tasking myself: "I will let you know", "I will update you", etc.).

After two more days, he sent me this text:

Him: Hi Colleague got the docs?

Verify, that they'll arrive at your office

G evening. [name initials]

I started getting really annoyed and didn't answer.

Two days after this text, I received the documents. They had been posted to me exactly on day "X".

I then sent him the following email enclosing the amended settlement agreement (three simple pages to which I just added a reference to having received the above certifications) and pushing for closing. This email was a result of seriously toning down my strong annoyance:

My email: Dear Colleague,

I confirm receipt of the package mailed on [day X] by your client.

I reenclose here the settlement agreement with small amendments for coordination and to also mention this delivery.

In order to facilitate quick definition and ensure the efforts we both made are successful, will you please confirm by tomorrow evening that we can sign and close this in the afternoon of [day Z, at time X], or at the latest [day W same time].

He pushes back, wants to procrastinate more and show he's the one with power; tasking also escalates

Other lawyer waited day W, my last proposed date, and sent me the following:

His email: Hi Colleague

I read your last draft

here reattached

I think it's ok

Please remove

reds and underlined words

and send it to me ready

Then I'll send it to my client

for appropriate final reading

Thank you

Kind regards

*click on blockquote above to expand

This email is a further escalation in power moves from him, because he is now tasking me on things I am not required to do ("clean the file") and he can clearly do himself.

My question

I am not really able to understand here if:

I am being successful in assisting my client (I did obtain the documents and it seems the thing is headed, albeit very slowly, towards solution);

or if I am being successful in just letting myself be disrespected and losing power.

The fact that my client was (and still is) averse to suing, which the other lawyer somewhat picked up, did not help.

My question now is this: how do I respond?

My ideas:

Option A:

I could not respond and just wait, to subcommunicate this is unacceptable. But I am the party who is interested in closing quickly.

Option B:

I could convince my client that we need to set a firm deadline (end of week?) to this lawyer and then interrupt negotiations and sue in any case.

I don't think other lawyer would want this outcome (which would probably put him at odds with his client), but it's also possible that he will relish the opportunity for the legal fight, even if he loses.

But I will devote my every waking effort to win this fight.

Option C:

I could simply go along, reempower against tasking by saying I am enclosing the final draft, and mention that my client is starting to reconsider and I think this must be closed quickly to avoid our efforts to be vain (which, BTW, I already mentioned twice in different terms, to no avail).

Option D:

I could go meta on what he is doing (deliberately delaying things) and state it is unacceptable, but it just doesn't feel right to me in this context.

Option E:

I could "detach", "submit" and "power-align" to this guy and his timing, in the hope that this makes him more eager to close and less prone to restating he's the boss here.

Maybe the problem is that he did not feel appreciated enough since they are conceding on the substance of the matter (even though I do not have this feeling).

I could send him an email thanking him profusely for his "help" and his "influence" on his client and for what he "will do to close quickly".

But this would be a clear backtrack from my last email.

My thoughts

This is yet again another situation where I should have all the power (my client has legal recourse, settlement has been proposed in terms very favourable to us, other party is in the wrong on multiple counts), but somewhat the other party still tries (somewhat successfully) to somewhat reverse the power dynamics.

Do you think there is anything I am missing or not seeing, or do you have any other ideas?

If need be, I can also post the previous email / text conversations with this lawyer.

Hi Guys!

I find myself in this professional predicament.

Context

I, as lawyer, sent a warning letter to a counterpart (a works company) for damages (defects in works for home renovation) for one of my clients.

The lawyer of the counterpart contacted me and immediately proposed settlement. My client immediately agreed on the terms of the settlement, which was very favourable to us, and I prepared the draft settlement and sent it to the other lawyer.

Then my client found out that several documents (certifications) due under the law at end of works were never given to her by the counterpart. I asked the other lawyer that his client may produce these certifications, which were due under the law and were preliminary to the settlement for us.

Power moves start?

Then the other lawyer basically started procrastinating as much as possible:

he started referring to his client being busy, and the draft certificates would be ready not immediately but in three days;
then after three days, his client had a problem in the software to issue the certificates, and they would be ready in one week;
then after one week he (the lawyer) was busy, and he would need some more time to send me the draft certificates that his client had already sent to him;
then he asked me to confirm my address (which he already knew) to mail them;
one week came by and documents did not arrive; I pushed, and he said his client had assured him to have mailed them but he would check;
after four days (let's say on day "X"), he assured me his client had mailed the documents.

Throughout this, he started constantly tasking me on things I would have to do anyway ("check", "update me", and so on, to which I responded by self-tasking myself: "I will let you know", "I will update you", etc.).

After two more days, he sent me this text:

Him: Hi Colleague got the docs?

Verify, that they'll arrive at your office

G evening. [name initials]

I started getting really annoyed and didn't answer.

Two days after this text, I received the documents. They had been posted to me exactly on day "X".

I then sent him the following email enclosing the amended settlement agreement (three simple pages to which I just added a reference to having received the above certifications) and pushing for closing. This email was a result of seriously toning down my strong annoyance:

My email: Dear Colleague,

I confirm receipt of the package mailed on [day X] by your client.

I reenclose here the settlement agreement with small amendments for coordination and to also mention this delivery.

In order to facilitate quick definition and ensure the efforts we both made are successful, will you please confirm by tomorrow evening that we can sign and close this in the afternoon of [day Z, at time X], or at the latest [day W same time].

He pushes back, wants to procrastinate more and show he's the one with power; tasking also escalates

Other lawyer waited day W, my last proposed date, and sent me the following:

His email: Hi Colleague

I read your last draft

here reattached

I think it's ok

Please remove

reds and underlined words

and send it to me ready

Then I'll send it to my client

for appropriate final reading

Thank you

Kind regards

*click on blockquote above to expand

This email is a further escalation in power moves from him, because he is now tasking me on things I am not required to do ("clean the file") and he can clearly do himself.

My question

I am not really able to understand here if:

I am being successful in assisting my client (I did obtain the documents and it seems the thing is headed, albeit very slowly, towards solution);
or if I am being successful in just letting myself be disrespected and losing power.

The fact that my client was (and still is) averse to suing, which the other lawyer somewhat picked up, did not help.

My question now is this: how do I respond?

My ideas:

Option A:

I could not respond and just wait, to subcommunicate this is unacceptable. But I am the party who is interested in closing quickly.

Option B:

I could convince my client that we need to set a firm deadline (end of week?) to this lawyer and then interrupt negotiations and sue in any case.

I don't think other lawyer would want this outcome (which would probably put him at odds with his client), but it's also possible that he will relish the opportunity for the legal fight, even if he loses.

But I will devote my every waking effort to win this fight.

Option C:

I could simply go along, reempower against tasking by saying I am enclosing the final draft, and mention that my client is starting to reconsider and I think this must be closed quickly to avoid our efforts to be vain (which, BTW, I already mentioned twice in different terms, to no avail).

Option D:

I could go meta on what he is doing (deliberately delaying things) and state it is unacceptable, but it just doesn't feel right to me in this context.

Option E:

I could "detach", "submit" and "power-align" to this guy and his timing, in the hope that this makes him more eager to close and less prone to restating he's the boss here.

Maybe the problem is that he did not feel appreciated enough since they are conceding on the substance of the matter (even though I do not have this feeling).

I could send him an email thanking him profusely for his "help" and his "influence" on his client and for what he "will do to close quickly".

But this would be a clear backtrack from my last email.

My thoughts

This is yet again another situation where I should have all the power (my client has legal recourse, settlement has been proposed in terms very favourable to us, other party is in the wrong on multiple counts), but somewhat the other party still tries (somewhat successfully) to somewhat reverse the power dynamics.

Do you think there is anything I am missing or not seeing, or do you have any other ideas?

If need be, I can also post the previous email / text conversations with this lawyer.

#2 · May 30, 2022, 12:17 pm

Here is another idea:

Hi Colleague,

you will find attached the text in pdf for signature.

I convinced my client to wait some more with respect to the dates she had indicated,

since conclusion of the settlement phase is now imminent in any case.

At this point let me have yourself a pair of dates in which you are available to close this.

Kind regards

I am expending more effort in power moves thinking than in working!

#3 · May 30, 2022, 4:33 pm

Or maybe

Hi Colleague,

since I did not hear from you on my date proposal to proceed to closing, please indicate to me as soon as possible a pair of definitive dates in which your client is available to close this settlement.

Missing this I will assume there is no real interest to close this and will communicate this to my client.

#4 · May 30, 2022, 5:45 pm

This is what I'm settling on:

Dear Colleague,

Perfect! Here enclosed the clean file, can you let me know a pair of dates in which you are available for the closing?

#5 · May 31, 2022, 1:51 am

Quote from Lucio Buffalmano on May 31, 2022, 1:51 am
Hey Bel,

A few notes that I think are more important than the exact wording of the latest reply:

Get your customer comfortable with a possible escalation...

... Whenever possible.

And especially so when things look good for the client.

That gives you power.

Don't accept the first offer

Obviously that's a "rule of thumb" full of exceptions, but worth keeping in mind.

Make sure you got everything you wanted before accepting

This is social exchange dynamics.

Because to ask for something on top of the already agreed-upon deal even, it feels exactly like that, that you're asking something extra.

Even if it was due, the human feeling is the same: that you're asking more and more and "annoying" the other party.

Obviously, this is not legal dynamics, so if you escalate, you win.
But still, it helps to make things smoother.
Because when the feel is that you're asking extra, the other party feels justified to make you wait because you get framed as that "rompi palle" who keeps badgering us.

Check his lies, don't let him get away with them (date of shipping the missing files)

Why are you letting him get away with blatant lies.

Enforcing boundaries has a wide meaning.

Enforcing boundaries includes boundaries of truthful and honest communication.

I'd have replied to him:

Finally and with much delay, I received the files.
Going forward, I expect and appreciate more honest communication.
If X company needs time to produce the files, we can talk about that.

Or:

I received the files on date X, not Y as it was initially stated.
Going forward, I expect and appreciate more honest communication.
If X company needs time to produce the files, that can be OK. We can talk about that. No need to "gain time" with long detours.

Of course, exceptions apply and sometimes "going with the lies' flow" is either fine, or the best strategic option.

Plus, some lies nad power moves are acceptable.

But I personally felt it was too much in this case.
If you don't check it, then the other party feels justified, validated, and empowered to keep lying and stringing you along at will, without any consequences.

Send his tasks back

I think you got it right on those tasking dynamics.

Do what's fair to do, and send back the tasks that aren't yours to do:

Him: enclosed is the draft, please fix the red marker and send back
You: dear colleague, I'm waiting for the clean draft by the end of the week (it's not up to me to clean the document)

Hey Bel,

A few notes that I think are more important than the exact wording of the latest reply:

Get your customer comfortable with a possible escalation...

... Whenever possible.

And especially so when things look good for the client.

That gives you power.

Don't accept the first offer

Obviously that's a "rule of thumb" full of exceptions, but worth keeping in mind.

Make sure you got everything you wanted before accepting

This is social exchange dynamics.

Because to ask for something on top of the already agreed-upon deal even, it feels exactly like that, that you're asking something extra.

Even if it was due, the human feeling is the same: that you're asking more and more and "annoying" the other party.

Obviously, this is not legal dynamics, so if you escalate, you win.
But still, it helps to make things smoother.
Because when the feel is that you're asking extra, the other party feels justified to make you wait because you get framed as that "rompi palle" who keeps badgering us.

Check his lies, don't let him get away with them (date of shipping the missing files)

Why are you letting him get away with blatant lies.

Enforcing boundaries has a wide meaning.

Enforcing boundaries includes boundaries of truthful and honest communication.

I'd have replied to him:

Finally and with much delay, I received the files.
Going forward, I expect and appreciate more honest communication.
If X company needs time to produce the files, we can talk about that.

Or:

I received the files on date X, not Y as it was initially stated.
Going forward, I expect and appreciate more honest communication.
If X company needs time to produce the files, that can be OK. We can talk about that. No need to "gain time" with long detours.

Of course, exceptions apply and sometimes "going with the lies' flow" is either fine, or the best strategic option.

Plus, some lies nad power moves are acceptable.

But I personally felt it was too much in this case.
If you don't check it, then the other party feels justified, validated, and empowered to keep lying and stringing you along at will, without any consequences.

Send his tasks back

I think you got it right on those tasking dynamics.

Do what's fair to do, and send back the tasks that aren't yours to do:

Him: enclosed is the draft, please fix the red marker and send back
You: dear colleague, I'm waiting for the clean draft by the end of the week (it's not up to me to clean the document)

John Freeman and Bel have reacted to this post.

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#6 · May 31, 2022, 10:36 am

Quote from Bel on May 31, 2022, 10:36 am
Thank you very much Lucio.

This is invaluable and incredibly helpful.

Your level of depth and knowledge in these dynamics is simply out of this world.

Everything you say is 100% spot on, so my thought here below are just for myself, to clear in my mind why it went like this:

Quote from Lucio Buffalmano on May 31, 2022, 1:51 am

Get your customer comfortable with a possible escalation...

Agree 100%, and that's exactly what I did after I saw how things started going.

I spoke with my client yesterday and she told me she has decided that if in 1 more month things don't go to closing, we will sue.

Don't accept the first offer

Agreed. Here first offer was full payment, and closing further legal recourse, so not much to negotiate.

But of course I was able to still make a mistake on top of this!

Because my client then asked me to negotiate a small increase in the settlement amount, in exchange for waiving further legal recourse for other defects in the works.

I later understood that this also annoyed the other lawyer (who of course rejected it outright).

And made a mental note never to do this anymore.

Make sure you got everything you wanted before accepting

This is social exchange dynamics.

Because to ask for something on top of the already agreed-upon deal even, it feels exactly like that, that you're asking something extra.

Even if it was due, the human feeling is the same: that you're asking more and more and "annoying" the other party.

Obviously, this is not legal dynamics, so if you escalate, you win.
But still, it helps to make things smoother.
Because when the feel is that you're asking extra, the other party feels justified to make you wait because you get framed as that "rompi palle" who keeps badgering us.

This is 100% true, and I own it.

I should have pushed my client to verify everything before sending warning letter.

It is very difficult to take account of every dynamic in play (legal, plus social-power).

Check his lies, don't let him get away with them (date of shipping the missing files)

Why are you letting him get away with blatant lies.

Enforcing boundaries has a wide meaning.

Enforcing boundaries includes boundaries of truthful and honest communication.

I'd have replied to him:

Finally and with much delay, I received the files.
Going forward, I expect and appreciate more honest communication.
If X company needs time to produce the files, we can talk about that.

Or:

I received the files on date X, not Y as it was initially stated.
Going forward, I expect and appreciate more honest communication.
If X company needs time to produce the files, that can be OK. We can talk about that. No need to "gain time" with long detours.

Of course, exceptions apply and sometimes "going with the lies' flow" is either fine, or the best strategic option.

Plus, some lies nad power moves are acceptable.

But I personally felt it was too much in this case.
If you don't check it, then the other party feels justified, validated, and empowered to keep lying and stringing you along at will, without any consequences.

This is the most helpful part of your post for me. Reasons why I did not escalate this:

I was afraid my escalation would derail settlement, as it was getting closer nonetheless;

other lawyer was good in framing the lie as his client's (he said "my client had assured to me documents had been sent"); but I could have still said I expected more honest communication in reference to his client, or even in general;

I felt part of the problem was that I had asked for the certifications on top, just like you mention above. So, in my thinking, I felt somewhat "power-down" due to that and was not sure I could now escalate on this;

part of me was so angry for how things were going that, in the end, having my client sue was not a bad outcome anymore; meaning, if more games started getting played, I would have had an excuse to close negotiations;

I just did not know what to say to point this out.

I understand I created part of the problem here, and that's very helpful going forward.

Send his tasks back

I think you got it right on those tasking dynamics.

Do what's fair to do, and send back the tasks that aren't yours to do:

Him: enclosed is the draft, please fix the red marker and send back
You: dear colleague, I'm waiting for the clean draft by the end of the week (it's not up to me to clean the document)

His tasking is unfair and a clear power move to further detour things and dominate me.

That said, my take here was that debating on this would be harmful to settlement, as the debate could be used by him to derail things for one/two weeks.

He could simply say: "I don't know how to do that, that's why I asked".

So I preferred to respond to this as follows:

frame him as helping me;

strategic volition and set the vision-frame for the task;

task him back.

This was the intended meaning of my response:

Perfect! (meaning: thank you for your request that makes this go forward)

I am enclosing the file for signature (meaning: I am not only doing what you asked, even if it's unfair, but I am also saying that no more amendments can be made from now on)

Give me two dates yourself to close this. (task back)

Thank you very much Lucio.

This is invaluable and incredibly helpful.

Your level of depth and knowledge in these dynamics is simply out of this world.

Everything you say is 100% spot on, so my thought here below are just for myself, to clear in my mind why it went like this:

Quote from Lucio Buffalmano on May 31, 2022, 1:51 am

Get your customer comfortable with a possible escalation...

Agree 100%, and that's exactly what I did after I saw how things started going.

I spoke with my client yesterday and she told me she has decided that if in 1 more month things don't go to closing, we will sue.

Don't accept the first offer

Agreed. Here first offer was full payment, and closing further legal recourse, so not much to negotiate.

But of course I was able to still make a mistake on top of this!

Because my client then asked me to negotiate a small increase in the settlement amount, in exchange for waiving further legal recourse for other defects in the works.

I later understood that this also annoyed the other lawyer (who of course rejected it outright).

And made a mental note never to do this anymore.

Make sure you got everything you wanted before accepting

This is social exchange dynamics.

Because to ask for something on top of the already agreed-upon deal even, it feels exactly like that, that you're asking something extra.

Even if it was due, the human feeling is the same: that you're asking more and more and "annoying" the other party.

Obviously, this is not legal dynamics, so if you escalate, you win.
But still, it helps to make things smoother.
Because when the feel is that you're asking extra, the other party feels justified to make you wait because you get framed as that "rompi palle" who keeps badgering us.

This is 100% true, and I own it.

I should have pushed my client to verify everything before sending warning letter.

It is very difficult to take account of every dynamic in play (legal, plus social-power).

Check his lies, don't let him get away with them (date of shipping the missing files)

Why are you letting him get away with blatant lies.

Enforcing boundaries has a wide meaning.

Enforcing boundaries includes boundaries of truthful and honest communication.

I'd have replied to him:

Finally and with much delay, I received the files.
Going forward, I expect and appreciate more honest communication.
If X company needs time to produce the files, we can talk about that.

Or:

I received the files on date X, not Y as it was initially stated.
Going forward, I expect and appreciate more honest communication.
If X company needs time to produce the files, that can be OK. We can talk about that. No need to "gain time" with long detours.

Of course, exceptions apply and sometimes "going with the lies' flow" is either fine, or the best strategic option.

Plus, some lies nad power moves are acceptable.

But I personally felt it was too much in this case.
If you don't check it, then the other party feels justified, validated, and empowered to keep lying and stringing you along at will, without any consequences.

This is the most helpful part of your post for me. Reasons why I did not escalate this:

I was afraid my escalation would derail settlement, as it was getting closer nonetheless;
other lawyer was good in framing the lie as his client's (he said "my client had assured to me documents had been sent"); but I could have still said I expected more honest communication in reference to his client, or even in general;
I felt part of the problem was that I had asked for the certifications on top, just like you mention above. So, in my thinking, I felt somewhat "power-down" due to that and was not sure I could now escalate on this;
part of me was so angry for how things were going that, in the end, having my client sue was not a bad outcome anymore; meaning, if more games started getting played, I would have had an excuse to close negotiations;
I just did not know what to say to point this out.

I understand I created part of the problem here, and that's very helpful going forward.

Send his tasks back

I think you got it right on those tasking dynamics.

Do what's fair to do, and send back the tasks that aren't yours to do:

Him: enclosed is the draft, please fix the red marker and send back
You: dear colleague, I'm waiting for the clean draft by the end of the week (it's not up to me to clean the document)

His tasking is unfair and a clear power move to further detour things and dominate me.

That said, my take here was that debating on this would be harmful to settlement, as the debate could be used by him to derail things for one/two weeks.

He could simply say: "I don't know how to do that, that's why I asked".

So I preferred to respond to this as follows:

frame him as helping me;
strategic volition and set the vision-frame for the task;
task him back.

This was the intended meaning of my response:

Perfect! (meaning: thank you for your request that makes this go forward)

I am enclosing the file for signature (meaning: I am not only doing what you asked, even if it's unfair, but I am also saying that no more amendments can be made from now on)

Give me two dates yourself to close this. (task back)

Lucio Buffalmano has reacted to this post.

#7 · May 31, 2022, 11:06 am

So, putting it all together, I think this is what I'm going to send:

Hi Colleague,

perfect.

I overlooked the mailing of the certifications after the date Your client has assured to You, but I appreciate clear and linear communication: if Your client needs a week more to close this, we can talk about it, but there's no need to gain time with long detours.

You will thus find attached the text for signature.

Can you let me know a pair of dates useful for you?

Thank You and kind regards.

Lucio Buffalmano has reacted to this post.

#8 · May 31, 2022, 7:43 pm

Update.

He answered with this, I am omitting some portions:

Hi Colleague.

My client will be able to make payment next week on [x].

I will see my client on [...], I'll send you then the signed settlement and you will send me yours; please insert in the settlement that payment will take place on [x] and we will send you transcript of the wire.

I am very sorry for the phrase you used in your email putting me in discussion. Nobody wants to lose time here and I invite you not to use these expressions anymore towards me considering my loyal collaboration for a quick solution.

I look forward to hearing from you

Kind regards

* click blockquote above to expand

Lucio Buffalmano has reacted to this post.

#9 · May 31, 2022, 8:03 pm

Congratulations, that is an apology. As good as you can get.

Also, I think what is important to think about is your mindset. If you think: "I need this guy more than he needs me", it will be sub-communicated in your emails.

If you think: "I'm his equal and I deserve respect" then your communication will be a reflection of that. If you don't let others dominate you, you will gain self-respect and it will snowball for your next actions.

The secret to assertiveness in emails I think is staying fact-based, short and to the point. Then you can add politeness as "Please" or "thank you" or "thank you for..." to soften it. This is my bread-and-butter professional communication.

For instance I would reply to the above:

Dear Colleague.

These are good news for everyone involved. Here is the last version of the settlement.

Thank you for your collaboration,

Kind regards,

Bel

#10 · June 1, 2022, 8:40 am

Thank you John. My thought on his response:

While I made sure to refer the assertive statement to his client more than to him, he seems to nonetheless have personalized it and considered it as if it were referred only to himself.

This is something I have seen happening, in various shapes and forms, many times in the past (another variant is where I said something, and the other person answered as if I had said something worse than what I actually said).

I interpret this as a possible indication that he himself was somewhat delaying things here, and he felt I struck a nerve.

But it is also possible that it was my delayed reaction (with respect to the previous situation with the mailing of the files) that was somewhat "off".

In any case we got to a date, so this is a success.