ADR Cases and Commentary
Today, in contrast to the not too distant past, the art of negotiating is the subject of many courses of study. Though space does not permit covering the nuances and depth of information of such courses, there are things you can do to improve your success ratio. In Rethinking Negotiation Strategy (mediate.com 9/02/2014; North County Lawyer, June 2014) I covered the fundamentals, which developed into a presentation (The Art of Negotiation; SCMA 9/18/2014). Regardless of whether you are one of the fortunate few inherently gifted as a negotiator, you can enhance your negotiator skills set by employing a few simple tools.
Develop your negotiation “Game Plan” by the following:
- Identify the issues, risks and interests of your client and opponents.
- Research key issues, check jury verdicts for results in similar cases and work out a realistic evaluation of your client’s case.
- Determine the magnitude of the opposition – Google opponents & counsel
- Outlining your offers and responses to anticipated counters will enable you to maintain the tempo (i.e., momentum) of negotiations.
- Look for “value added” non-monetary items such as an apology that can be just what is needed to clinch a deal.
- Provide your adversary with sufficient information (e.g., records, data and evidence) to obtain maximum authority.
Try a little civility. Being civil is not wimping out. You are creating an environment for settlement .
- Try a collaborative approach instead of adversarial “hardball” tactics.
- Ratchet down your rhetoric.
- Avoid being drawn into personality conflicts (it is your clients’ case, it is not about you).
- Refrain belittling your opponent’s case, overstating yours, or making pejorative comments re opposition
- Abstain from puffing and posturing with excessive demands countered by lowball offers and the tired old classics “… I won’t negotiate against myself!”
- Instead establish points of agreement on issues and facts
The Clients Role. 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.
To succeed a negotiator must 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” (Kiss, Bow or Shake Hands by Terri Morrison, Wayne A. Conaway), 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 …” (Culture’s Consequences, 1983, Geert Hofstede). 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. (You Just Don’t Understand: Men and Women in Conversation. by Deborah Tannen)
Links to Sources of Dispute Resolution Information