Try a Little Civility. Start by Setting a More Positive Tone for Your Negotiations at The

Rethinking Negotiation Strategy
by Dale E. Ordas
The charisma of the designation “trial lawyer” is not shared by “negotiator.” However, since less than 5 percent of civil cases go through trial, enhancing your negotiating repertoire will likely reap rewards. In contrast to trial, where control of the outcome rests with the Court and/or Jury, a skilled negotiator can retain control of the outcome for the client. Therefore, it behooves the prudent litigator to augment your negotiator prowess. In the past, negotiation was not a part of law school curriculum. Today, law schools have entire sections devoted to negotiation and allied disciplines (e.g., mediation). While there is much to be gained from these courses of study, simply adding the following implements to your negotiator’s tool belt will likely have a positive impact on your scorecard.

Develop a game plan for your negotiations. Research key issues, check jury verdicts for results in similar cases and work out a realistic evaluation of your client’s case. Identify the issues, risks and interests of your client and opponents.[1] Outlining your offers and responses to anticipated counters enables you to maintain the tempo of the process, during actual negotiations.[2] Look for “value added” non-monetary items such as an apology[3] that can be just what is needed to clinch a deal. Googling opponents may yield valuable insights for your strategy. An absolutely inviolable rule is to provide your adversary with sufficient information (e.g., records, data and evidence) to obtain maximum authority.

Try a little civility. Start by setting a more positive tone for your negotiations at the outset. Instead of insisting on your preferred mediator, engage your opponent in a more collaborative way by asking for suggestions. This is likely to create a more collegial interaction for the negotiations. In pre-mediation communication such as teleconferences, refraining from pyrotechnics is more likely to build trust that can pay dividends as the negotiations progress.

If adversarial “hardball” tactics are not settling your cases, isn’t continuing imprudent? If you want your opponent to agree with your position on issues, is belittling your opponent’s case, overstating yours, or making pejorative comments the key to making that happen? Ratchet down your rhetoric. The same applies to puffing and posturing with excessive demands countered by lowball offers and the tired old classics “... I won’t negotiate against myself!”[4] Avoid being drawn into personality conflicts (it is your clients’ case, it is not about you).

Instead follow the lead of the masters, “... When negotiations stall, stop (to think), look (keep your eyes on the prize), identify the stakeholders and listen (to yourself; reactions and emotions) then step to their side (step into their shoes), listen more than talk, acknowledge their point ...”[5] For those accustomed to the “settlement conference model,” in which the Judge dictates the process and does the heavy lifting by pressuring and cajoling the parties to remove the case from the docket, it may take some time and effort to develop a comfortable transition.

Include a “plan B” to deal with unforeseen roadblocks. If in the midst of negotiations, your client is stuck, is unrealistic or is fixated on a zero sum game, consider requesting a mediator proposal. This non-binding tool can be an effective way of easing the process past a stalemate. Another possibility is med-arb. This hybrid process has a history in labor-management and commercial disputes, though it is not without its’ detractors.[6]

Be mindful of cultural differences, which can scuttle a resolution if not handled adroitly. If you don’t have a copy of “Kiss, Bow or Shake Hands”[7], it’s a great quick resource for avoiding cultural faux pas. A person’s culture or cultural identity is formed by a constellation of factors, inter alia, education, religiosity, ethnicity, social affiliations, vocation, gender identity and philosophic perspective. “Culture is more often a source of conflict than synergy ...”[8] Gender based stylistic differences in speech must also be considered in your strategy. Women tend to engage in “rapport” talk, which they tend to lace with validation, while engaging in non-verbal conduct (nodding, leaning forward coupled with eye direct contact). Men generally use “report” speech to convey information.[9]

Don’t overlook your client’s role in the negotiations. Make sure that you and your client(s) are on the same page. Reduce client anxiety by making sure that there is an understanding of the negotiation process and the client’s role. In contrast to the ‘settlement conference model” your client’s participation is likely to be the key to maximizing the outcome. Restricting the client’s role to speaking only through you is likely to constrict the negotiations. Don’t scrimp on the time devoted to client preparation lest your client’s misconceptions about the process will undermine the negotiations. Make sure your client understands that not being combative is not capitulation and that shaking hands with opposing counsel is strategic, not selling out. Be sure that you and your client allocate sufficient time for the negotiations. Leaving the mediation before its completion regardless of the reason, may cause irreparable harm to the negotiations.

Preparation of a brief statement of your client’s case serves multiple essential functions. It will cause you to focus on key issues and how to deal with them. Word selection in the drafting of your brief and framing demands can pay dividends.[10] Providing a copy of your brief to your client will aid client preparation and minimize the likelihood of mishaps during the negotiation process. The brief should be focused on the issues and only long enough to cover them. Provide a copy of the brief to your opponents to ensure that they will come to the table with sufficient authority. Finally, make sure to provide the brief to all necessary parties, including the mediator, sufficiently in advance of the negotiations. Otherwise, your mediator will be required to learn about the case during the mediation session, which will add to its length and cost.

In an earlier century a country lawyer said “… discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser--in fees, expenses, and waste of time ...”[11] So follow the lead of Abraham Lincoln, one of our wisest presidents. Prepare, keep a cool head and remember that compromise is not a dirty word, it is synonymous with negotiation.

[1] Beyond Winning (supra, pages254-261

[2] Legal Counseling, Negotiating and Mediating: A Practical Approach by G. Nicolas Herman, Jean M. Cary (pages 230-231, 268-269); Negotiation Mastery for the Legal Pro by Douglas E. Noll (pages 82-85)

[3] The Power of Apology by Beverly Engel.

[4] Beyond Winning (Robert H. Mnookin 2000, pages 24-43)

[5] Getting to Yes, Negotiating Agreement Without Giving In (Roger Fisher, William Ury and Bruce Patton, 1991 update of the original)

[6] Med-Arb and Its Variants: Ethical Issues for Parties and Neutrals. by Richard Fullerton; See also Med-Arb: The Best of Both Worlds May Be Too Good to be True; by Brian A. Pappas; Note that AAA does not recommend same-neutral med-arb "except in unusual circumstances because it could inhibit the candor which should characterize the mediation process and/or it could convey evidence, legal points or settlement positions exparte improperly influencing the arbitrator." However, the AAA says it will administer a case using same-neutral med-arb if that is what the parties want. JAMS, also, does not recommend same-neutral med-arb, but will administer such a process if the parties expressly agree to it. The International Institute for Conflict Prevention and Resolution (CPR), on the other hand, promotes having two neutrals. "[T]o ensure the integrity of the arbitration process, Med/ Arb agreements should provide that then arbitrator shall not be the same person who served as mediator in the matter."'? In contrast, Deborah Katz of the Expanded Conflict Management Processes Committee of the Dispute Resolution Section of the ABA has said: After completing the mediation session, it is not unusual for the parties to agree to have the mediator continue on as the arbitrator as long as the parties do not feel that they have shared any private or confidential information with the mediator that might adversely affect the decision of the mediator/arbitrator." No professional dispute organization has been found that recommends the practice of med-arb without conditions.

[7] Kiss, Bow or Shake Hands by Terri Morrison, Wayne A. Conaway

[8] Culture's Consequences, 1983, Geert Hofstede

[9] You Just Don't Understand: Men and Women in Conversation. by Deborah Tannen

[10] Yes!: 50 Scientifically Proven Ways to Be Persuasive by Noah Goldstein, Steve Martin & Robert Cialdini

[11] Collected Works of Abraham Lincoln, edited by Roy P. Basler et al Lincoln Presidential term March 4, 1861 – April 15, 1865