Negotiations rarely proceed as smoothly or swiftly as we first envision. This is partially because settling a case requires finding a result that satisfies both parties, yet litigators are trained to be zealous advocates for their clients and their clients alone. Instead of thinking how much you can get for your client relative to how much your counterpart can get for his or her own, try thinking in terms of how much more you could both get for your clients relative to litigating in court.
Contrary to what many believe, a problem-solving orientation to negotiation doesn’t require you to compromise your client’s position or give up more than you get back. It doesn’t even mean you have to be nice (although why wouldn’t you be?). You can seek to maximize your client’s fair share while still recognizing that you stand more to gain by working with the other side—not to help them, but to help both of you achieve better results.
Think of it as making a deal, not winning a contest. However much you view the other side as wrong or unreasonable, the reality is that you need to make a deal with them to get your client out of the litigation ASAP.
Here are three problem-solving techniques to help you, your client, and your counterpart move the negotiation process forward when it seems to be stuck. It may be effective to use only some or all of these techniques at varying points in the negotiation, or to combine them in a way that makes sense for the particular situation you face.
- Focus on interests more than positions. A big reason that negotiations break down is that counsel is often unable to distinguish between the client’s stated positions and the more general interests that underlie them. Drawing such a distinction can enable you and your counterpart to think in more-flexible terms about what your respective clients truly need to settle the case, thereby opening up avenues for settlement that did not, at first glance, appear possible.
- Expand the settlement pie. Litigation is a “zero-sum” game: One party’s gain is directly proportional to the other party’s loss. Litigators often approach settlement as if it too were a zero-sum game. This is known as the “fixed-pie bias.” One of the advantages of negotiation over litigation is that it enables us to look for value-creating opportunities, i.e., opportunities that expand the pie, instead of simply fighting about how to divide up what appear to be fixed resources.
- Develop creative settlement options. Negotiators often come to the table with a limited view of what settlement outcomes are possible. They discuss only a few options for settlement and then try to compromise their positions to make one of the options work. In the vast majority of cases, however, there are more options for settlement than meet the eye. Having more options on the table increases the likelihood of finding one that is mutually acceptable.
It may be that one side may walk away with a larger share of the cooperative surplus than the other, but which is more important: getting more for your client in the absolute, or getting more for your client relative to what your counterpart got for his or hers? You will settle far more cases if you focus on the former rather than on the latter.
On ethics issues that may arise during negotiations, check out CEB’s program Selected Ethics Issues in Mediation and Settlement Negotiations on January 20, 2012 in Santa Clara and thereafter available On Demand. For more great advice on negotiation and case settlement, turn to CEB’s California Civil Procedure Before Trial, chap 46.
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