There are five easy steps to being a good negotiator. In the last issue’s article, I spelled out the first two steps: preparing for negotiations and exchanging necessary information. Today, I’ll pick up on steps three, four and five, all of which I teach in my advanced negotiation course.
Know Your Case Quite frequently, one or more of the litigation teams do not fully understand the value and risks of their case. The lawyer may be unprepared in one or more aspects of the case. The lawyer may be prepared but hasn’t communicated his/her understanding about value to the client. And, more frequently, the lawyer is prepared and has tried on many occasions to communicate his/her analysis to the client, and the client either does not get it or accept it.
As a result, that team doesn’t have a common understanding about the value of the case and, thus, their initial bargaining positions are often unrealistic.
Much of the time spent by mediators at the beginning of private sessions is aimed at helping an unprepared lawyer and client team come to a common understanding about the value of their case. As a result of that disparity, many hours are spent by mediators helping the members of an unprepared team communicate with each other in order to create productive and realistic proposals.
Action: Prepare yourself and your client about the facts and law in the case, so that in the days prior to the negotiation your team develops a common understanding of the case’s strengths and risks
Develop a Bargaining Plan A plan for bargaining consists of at least three elements: a starting number, a tentative walk away number (the other end of the bargaining range), and a series of moves that could take one through that range if need be to settle the case.
This is where conducting a case analysis, including jury verdict research, and developing a bargaining plan inform each other. As an example, let me suggest that one’s (plaintiff’s) starting number should be no higher than one’s highest damage figure possible in court with no discount for risk in either the liability or damage aspects of the case.
If one’s starting number cannot be justified by case analysis and thus is unrealistically high (or low, for the defense), it will motivate the other side to counter with unrealistic proposals as well.
Most attorneys neglect this aspect of the bargaining phase. Because they have no plan for movement from proposal to proposal, attorneys tend to react to the other side’s movement in kind. We tend to reward the other side’s movement with movement of our own or punish the other side’s meager movement with meager movement of our own. As a result of this reactive bargaining, the parties’ subsequent increments decrease in value and result in what I call the positional bargaining death spiral, impasses that occur before the parties have exhausted their negotiation ranges.
Action: Develop a negotiation range before you arrive at mediation that is based upon your case analysis and plan your moves through that range rather than react to the other side’s movement.
Negotiation Skills and Trial Skills Aren’t the Same. The tone and choice of words for persuading a jury should be different from the tone and choice of words for negotiation. In trial practice, we use a lot of adjectives and adverbs, designed to heighten or lower the passions of our audience which is either a judge, a jury or an arbitrator. The audience for our persuasive conversation in negotiations is the opposing team. Unlike juries, they aren’t persuaded by the use of adjectives and adverbs; rather, they are incensed and repelled by them. Hence, I suggest you excise adjectives and adverbs from your speech if you want to persuade the other side about risks they face in the case.
Similarly, most people are repelled by the use of intimidation and harsh words, so if you want the other side to move toward you in negotiations, do everything you can do not to intimidate your opponent (unless of course, you intentionally have built your strategy around intimidation). In addition, the most casual use of legal jargon by lawyers often is experienced by lay people as threatening or intimidating. That includes the use of words like fraud and heinous, or legal concepts such as punitive damages. Remember, the very people we are suing are the same people we need to persuade to settle with us. I suggest that you use plain English to explain legal concepts, so that your opponents are not repelled by your choice of words.
I suggest that you pay attention to the way in which you communicate non-verbally. I’m referring in particular to our communications in opening sessions in which we talk about our views of the case. It is current wisdom that we should use that opportunity to talk directly to lay persons on the other side. I counsel against that approach and suggest that locking eyes with an opposing party, no matter how benign our language and tone may be, is an intimidating experience to most lay persons. The average lay person cannot absorb legal analysis while being locked in visual contact with opposing counsel. They feel trapped, caged and put on the spot, without being able to respond.
Action: In general sessions, say your pleasantries to the opposing parties and then address the mediator with your evaluation of the case. They will be more likely to hear what you have to say.Andy Little