Litigation Strategy

Focus on the Win-Win

When trying to settle a legal dispute, it is often helpful to move away from a discussion of who was right and who was wrong, either in relation to the law or the parties’ underlying conduct. Arguing about who is right and who is wrong is useless when there’s no judge or jury to declare a winner.  And, as a practical matter, it is extremely unlikely that one side will convince the other to accept its legal position wholesale—no matter how correct or persuasive that position is.

So, what do you focus on instead? Consider how both sides could be better off by settling rather than taking their chances in court. The goal of a good settlement is to place the parties in a position superior to that of litigation. So, invite the other side to join in the pursuit of this goal by appealing to their practical and business sense, not their command of technical arguments or their desire to win. This win-win strategy was successfully used in the settlement between AIG and two of its former executives, which relieved both sides of the crushing legal costs and allowed them to continue with their businesses.

The key is to be forward-looking and focused on the positive (how both sides can start to benefit), not backward-looking and focused on the negative (how one side was wronged by the other).

For practical tips on negotiation and case settlement, turn to CEB’s California Civil Procedure Before Trial, chap. 46.

© The Regents of the University of California, 2010. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. 


3 replies on “Focus on the Win-Win”

Great post! I was also looking to see something on focusing on underlying interests. A lawyer friend of mine sent me this post, but as a pop quiz. He posed the first paragraph and the first question of the 2nd and said, “you’re the expert – what’s the right answer?” Here was my answer:

In mediation training, we teach the difference between positions and interests. Positions are the demands and offers that parties stake out based on their interpretation of the events, the facts and the law, and presumably their probability of prevailing. Their interests are the underlying reasons why they want those things and often end up driving their real settlement desires. In a property line case, for example, one party may take the position that they want big dollars and the property line acknowledged where they think it goes, along with an agreement from their neighbor that they neighbor won’t encroach to trim their landscaping any more. But their real interest may be that they’re deeply saddened by the neighbor’s cutting down (or fatally trimming) of an old oak tree that the plaintiff grew up playing in as a child, and may distrust anything (fact or offer) that comes from the other side until some trust can be established, or may want a sincere apology before they’re willing to talk about a compromise or settlement on dollars and other terms. Interests aren’t always emotions, but emotions are almost always interests. So, we focus them on their underlying interests and what the settlement really means to them, rather than their positions.

I hope you will consider this a humble, friendly addendum. When we train mediators, we explain that compromise (the method emphasized above) is better than competition (trial), but that collaboration (around underlying interests) is even better than compromise on the ladder of win-win.

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