Checklists Litigation Strategy Settlement Negotiation

Checklist for Your Next Negotiation

ThinkstockPhotos-459334539Negotiation skills are one of those things that lawyers tend to think they have innately. But actually, negotiations skills are learned and honed over time and practice. As you engage in your next settlement negotiation, use this checklist to be sure you don’t miss an opportunity.

__  Keep in mind your overarching goal, i.e., to find a result that places both parties in a better position than the one they could achieve through their next-best option—typically litigation.

__  Consider your opening to the negotiation.

__  Determine the appropriate tone and how that tone can be most effectively conveyed.

__  Develop rapport with your counterpart.

__  Hear and acknowledge the other side.

__  Convey your client’s sincerity and optimism about settlement.

__  Introduce a problem-solving orientation.

__  Articulate your client’s intentions, needs, and perspective on a settlement.

__  Agree on the agenda, goals, and process for the negotiation with your counterpart.

__  Consider negotiation styles—understand your own style, identify your counterpart’s style, and determine how to best interact.

__  Exchange information with the other side.

__  Consider how to structure the process of sharing information and reach agreement on the structure with your counterpart.

__  Consider the timing of information sharing.

__  Use listening and questioning techniques, e.g., active listening.

__  Determine what information you should get, e.g., information about underlying interests and assumptions, information about the other side’s bottom line.

__  Determine what information you should give.

__  Determine what information you should guard.

__  Know the numbers and how you will negotiate with them.

__  Know your client’s bottom line.

__  Know your client’s “target point,” i.e., optimistic goal.

__  Determine your “opening offer or demand.”

__  Determine whether to make the first offer or demand.

__  Determine how to open optimistically.

__  Consider your concession strategy.

__  Consider the messages you and your counterpart communicate to each other through your concessions.

__  Be prepared to recognize hard-bargaining tactics and to deal with them.

__  Think of problem-solving approaches.

__  Focus on interests over positions.

__  Expand the settlement pie, i.e., look for value-creating opportunities.

__  Develop creative settlement options.

__  Brainstorm options first.

__  Evaluate options later.

__  Reflect on ways to break through impasse.

__  Use your leverage.

__  Point to objective standards to evaluate each side’s proposals, e.g., reported jury verdicts.

__  Name the dynamic that is creating the impasse and work with your counterpart to move the negotiation forward.

__  Exchange more information.

__  Focus on finding ways for both parties to be better off than their alternative of litigation.

__  Consider taking a break from the negotiation.

__  Think about carving out intractable, discrete mini-disputes.

__  Reexamine your position from the other side’s perspective.

To learn more about each of these subjects, turn to CEB’s California Civil Procedure Before Trial, chap 46. And if you hit a negotiation stumbling block, check out CEB’s program Overcoming Settlement Impasse to get beyond it.

Other CEBblog™ posts you might find useful:

© The Regents of the University of California, 2016. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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