1) Take a good look at your cards.
Make sure that you know all key facts. Often the best way to learn the key facts is tolisten to the other side speak. The best setting for this is typically in mediation. Never assume that what your client tells you the facts are is entirely accurate, at least not where such allegations could be verified. Be sure to look for all “negative” facts about your own client. Know what the facts are, whether they are admissible in evidence, and how they can be established in court. Do not engage in loose or wishful thinking.
2) Do the jury instructions up front.
Know exactly what the applicable law is. Having a strong equitable position is different than being able to establish through available and admissible evidence that you have proved (or disproved) each element of the cause of action. Jury instructions are the legal template against which you will have to measure your claims.
3) Know what you want.
Determine the fundamental needs of your client. This sounds obvious and easy but some lawyers do not adequately do this. The only satisfactory way to learn your client’s basic objectives is to listen to them at length and, when they are fully finished talking, cross-examine them on such objectives. Restate their goals and values to make sure that you correctly understand them. Often persons who are angry ask for things that are either not reasonably possible or in their self-interest. Many individuals, and some institutions, are not immediately able to articulate their visceral or sub-conscious motivations. It is the attorney’s job to delicately probe these.
4) Prepare for the negotiation.
Just as for a court hearing, develop a strategy and prepare tools of persuasion. Negotiation has several stages. The first is to gather your evidence and develop a tentative plan for the negotiation process. First, decide what key evidence is exclusively in the control of the other party and whether formal court-rule discovery will be required. Often the other party will voluntarily disclose such information in mediation if they believe that you are bargaining in good faith [but not always]. You need to determine which side has “the bigger end of the stick” and what steps you can take to enhance your leverage. You need to evaluate your clients’ personal impact and ability to communicate (but this is not the same as their articulateness). You need to evaluate the other party and their counsel as to their personality and style of negotiation. You should ask yourself: What is my absolute minimum need? (What is your BATNA?). What is my opening offer/demand range? (Should be a high/low range but one that is plausibly defendable. Using a range gives parties more flexibility and tends to avoid painting oneself into a corner). How will I objectively support this offer/demand? What can I concede to the other side? How will I close the deal? (Get the deal in writing at once, check for the presence of loose ends, be sure to spell-out the details of compliance, and don’t kill a deal by being greedy or nitpicky).
5) Listen before you speak.
Determine what is important to the other party and why. The single most important skill in negotiation is closing your mouth and opening your ears. Listen to understand not to rebut; that comes later. Generally, don’t interrupt the other person while they are speaking, hold your questions or objections until they have finished. Summarize the position of the other side as you understand it and have them acknowledge that you do correctly understand it. State affirmatively, “I think I understand what your position is”. Probe with non-directive questions why the other side believes certain things and why they disagree with the positions of your client. Ask if they are willing to work with your client to hammer out a fair settlement. Don’t hesitate to be silent while you think about what the other side has said or how you should reply.
6) Smile when you say it.
Speak to opposing counsel as though you were explaining your case to the judge. Courtesy, patience, empathy and humor will all serve to advance your ability to get the other side to co-operate. Your mother likely told you that one catches more flies with honey than with vinegar. No matter how far apart the parties are nor how difficult the relationship between the parties, being polite, pleasant and professional to opposing counsel will never harm your client’s interest but may well help in the negotiation of a resolution of the dispute.
7) Begin collaboratively
Then respond in kind (tit-for-tat) to the behavior of the other side. Empirical negotiation studies have demonstrated that co-operative negotiators, over all, get better results for their clients than do competitive negotiators. It is not the attorneys’ dispute; it is the clients’ dispute. The attorneys’ job is to help their client get a good resolution of the dispute as quickly and economically as possible. However, if the other side fails to act in a collaborative manner then you should begin to act competitively while making sure that the other side understands that you will again act collaboratively once they begin to act that way. Try to sell the negotiation as a joint problem solving exercise rather than as a “cards-to-the-chest”, ping-pong between an absurdly high demand and a ridiculously low offer. Counsel set the tone for the negotiation at the very beginning, especially in their initial presentation. Remember, negotiation is about persuasion not intimidation.
8) Separate the person from the problem.
Be easy on the other persons but hard on the problem. Be firm in challenging the other side’s position but be cordial to the other party and their lawyer. Negotiation is difficult and stressful but hostility or offensive personality is not only in bad taste it decreases the chance that your client will get the deal they want. View, at least initially, the other attorney as a colleague who can help you work out, and sell to the other side, a deal that your client will take.
9) Keep your eyes on the prize.
Be persistent and do not let anger or ego distract you from your goals. Negotiation tends to be difficult and time-consuming. Having the other side reject a position that you feel is fair tends to cause anger. Back-sliding by the other party is highly discouraging. Nevertheless, if you patiently re-explain your position, justify it by reference to objective standards (e.g. prior verdicts, prior rulings by the trial judge, etc.) and indicate your willingness to re-examine your own position and continue to negotiate, you maximize your chances of reaching an agreement. Often requesting a break or a continuance will allow the negation to proceed on a more positive track.
10) Remember your BATNA.
Your Best Alternative to a Negotiated Agreement (i.e. the probable result at trial) is your legitimate walk-away point in a negotiation. The proffered deal has to be superior to your BATNA or it should be refused. Do not, however, fail to account both for the costs (attorney fees, litigation expenses, lost time, and stress) and the vagaries of the civil justice system. Some cases need to be tried and others arguably justify the risk of trial. In these situations counsel should politely and respectfully break-off the negotiation and explain why this happened.
© Richard Morley Barron
The mediation community is a-buzz. Should mediation confidentiality be allowed to cause harm to innocent third parties who were neither invited to be, nor present at, mediation? Evidence Code §1119...By Max Factor III