One of the key components of the opening phase of a negotiation is articulating your client’s intentions, needs, and hopes regarding a settlement. You can strongly assert your client’s point of view in a way that also fosters an atmosphere conducive to settlement.
Here are 4 tips for putting your client’s needs out front while moving toward a negotiated settlement:
- Be firm but flexible. Avoid using terms such as “no” or “never.” Instead, try to use other expressions that will keep the other side’s expectations in check but still convey optimism and possibility, e.g., “maybe,” “possibly,” and “unlikely, but.” Note that a willingness to be flexible doesn’t compromise your professional duty to act as a zealous advocate of your client. Flexibility is in your client’s interest because it gives you room to craft a solution that will be sellable to the other side. It’s not inconsistent to be firm about what’s important to your client and to remain flexible about the details of how your client’s needs are satisfied.
- Avoid making judgments. When the dispute that gave rise to litigation is highly contentious, it’s easy to make judgments about one side’s conduct or character, or to make statements that appear accusatory or defensive. Mitigate this tendency by eschewing judgments of the other side in favor of subjective descriptions of your client’s experience, and by disentangling the intentions behind words or conduct from the impact of those words or conduct.
- Emphasize your client’s interests, not positions. At the outset of the negotiation, it’s wise not to start with a particular position such as “My client needs at least $100,000 to settle this case.” Instead, emphasize what motivates your client’s position. Why does your client need $100,000? Is it important to your client to have enough financial resources to honor other contractual obligations? Does your client seek some kind of insurance against future breaches by the same party? Is it important that your client feel respected or receive some acknowledgment or apology for the breach? By getting to the root of what is important to your client, you can demonstrate flexibility about outcomes. Revealing your client’s motives and underlying interests early on in the negotiation may leave your client exposed. Nonetheless, expressing your client’s desires and aspirations for settlement in terms of primary concerns—i.e., what is most important to your client—is typically a more fruitful strategy than issuing a narrow or specific demand.
- Avoid extreme contentions. When it comes to human interactions, sweeping conclusions and absolute judgments are extremely difficult to support. Instead, try to embrace the multifaceted aspect of every human interaction and acknowledge the role, however small, that your client had or may have had in causing or worsening the problem.
Because most cases settle, you need to have the strongest negotiation skills possible. Get practical advice for all stages of settlement negotiation in CEB’s California Civil Procedure Before Trial, chap 46. Also check out CEB’s program Overcoming Settlement Impasse, available On Demand.
Other CEBblog™ posts on case settlement:
- Plaintiffs: Reject §998 Settlement Offers at Your Peril
- Think Creatively about Settlement Options
- When Settlement Pits Client Against Attorney
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