Andy Little 2015-10-28 01:07:02
After a recent mediation, a young attorney asked me if I would talk with him about how he could improve his negotiation skills. So we sat for a while and I gave him the quick version of our advanced negotiation course in five easy steps. 1 – Preparation. Negotiation is not a shortcut to a quick payday. To negotiate well, lawyers need to prepare as seriously as they prepare for trials. There’s information to develop; there’s research to be done; there are experts to be consulted; there’s information to be exchanged and evaluated; and there are clients who need to be educated as the case develops. In short, if you and your client don’t understand the case, you have little chance of negotiating a settlement. That understanding takes time and attention to achieve. So why is it that we lawyers are less prepared for mediation than for trial? One factor is that the consequences of not being ready for trial are far more serious and far more public than not being ready for negotiations. Any time there’s a trial or motion hearing in our immediate future, that court appearance will capture our attention and beat out preparing for mediation/negotiation every time, unless we become intentional about making long-range plans that include time to prepare for negotiations. An additional factor is that negotiation – the preparation for and the conduct of – as a field of study has not received the same priority in our system of legal education as has preparing for and conducting trials. When I was in law school, there was hardly a mention of the word, negotiation, in the curriculum. And there wasn’t any attention paid to negotiation in the world of continuing legal education. 2 – Exchange Information. Lawyers often come to mediation and other negotiations without having swapped basic information that both sides need to evaluate the case and appreciate its risks. I guess it’s natural in an adversarial system of adjudication that the parties don’t want to reveal everything they know about their case. However, it’s equally true that your opponents are never going to appreciate the risks in their case if they don’t have the information that demonstrates that risk. So, deciding what information is strategic and, therefore, not to be shared with your opponents and deciding what information must be shared in order for the other side to assess your claim or defense and, thus accept your proposals, are necessary parts of preparation that should occur well in advance of mediation. In my experience, the aspect of a civil law suit that is the least prepared and documented for mediation is the subject of damages. In a personal injury case, this may include failure to provide one or more of the following: medical expenses, medical records, last wage verification, and opinions as to causation and future medical expenses. In a contract or other business claim, it may include an accounting of funds collected and spent, lists of customer defections, and relevant invoices. In a construction case, it may include invoices and receipts, logbooks of products delivered, or itemizations of corrective repair costs. This is information that your opponent most definitely needs to justify giving you the money you think your client deserves. Why is it that lawyers often do not provide a complete picture of their damages to their opponents well in advance of mediation? One reason is that they do not understand the need of their opponents to do their due diligence about the proffered damages in order to test their legitimacy. A second reason has already been discussed; lawyers often have not set aside the time for preparation and we get into gear only when mediation is just around the corner. Whatever the reason may be, the net result is that mediations often reach impasse because the parties’ bargaining positions reflect unrealistic assessments of the damages in the case. Or, the mediation has to be recessed in order to complete necessary discovery. 3 – Know Your Case. Quite frequently, one or more of the litigation teams do not fully understand the value and risks of their case. The lawyer may be unprepared in one or more aspects of the case. The lawyer may be prepared but hasn’t communicated his/her understanding about value to the client. And, more frequently, the lawyer is prepared and has tried on many occasions to communicate his/her analysis to the client, and the client either does not get it or accept it. As a result, that team doesn’t have a common understanding about the value of the case and, thus, their initial bargaining positions are often unrealistic. Much of the time spent by mediators at the beginning of private sessions is aimed at helping an unprepared lawyer and client team come to a common understanding about the value of their case. As a result of that disparity, many hours are spent by mediators helping the members of an unprepared team communicate with each other in order to create productive and realistic proposals. 4 – Develop a Bargaining Plan. A plan for bargaining consists of at least three elements: a starting number, a tentative walk away number (the other end of the bargaining range), and a series of moves that could take one through that range if need be to settle the case. This is where conducting a case analysis, including jury verdict research, and developing a bargaining plan inform each other. As an example, let me suggest that one’s (plaintiff ’s) starting number should be no higher than one’s highest damage figure possible in court with no discount for risk in either the liability or damage aspects of the case. If one’s starting number cannot be justified by case analysis and thus is unrealistically high (or low, for the defense), it will motivate the other side to counter with unrealistic proposals as well. Most attorneys neglect this aspect of the bargaining phase. Because they have no plan for movement from proposal to proposal, attorneys tend to react to the other side’s movement in kind. We tend to reward the other side’s movement with movement of our own or punish the other side’s meager movement with meager movement of our own. As a result of this reactive bargaining, the parties’ subsequent increments decrease in value and result in what I call the positional bargaining death spiral, impasses that occur before the parties have exhausted their negotiation ranges. 5 – Negotiation Skills and Trial Skills Aren’t the Same. The tone and choice of words for persuading a jury should be different from the tone and choice of words for negotiation. In trial practice, we use a lot of adjectives and adverbs, designed to heighten or lower the passions of our audience which is either a judge, a jury or an arbitrator. The audience for our persuasive conversation in negotiations is the opposing team. Unlike juries, they aren’t persuaded by the use of adjectives and adverbs; rather, they are incensed and repelled by them. Hence, I suggest you excise adjectives and adverbs from your speech if you want to persuade the other side about risks they face in the case. Similarly, most people are repelled by the use of intimidation and harsh words, so if you want the other side to move toward you in negotiations, do everything you can do not to intimidate your opponent (unless of course, you intentionally have built your strategy around intimidation). In addition, the most casual use of legal jargon by lawyers often is experienced by lay people as threatening or intimidating. That includes the use of words like fraud and heinous, or legal concepts such as punitive damages. Remember, the very people we are suing are the same people we need to persuade to settle with us. I suggest that you use plain English to explain legal concepts, so that your opponents are not repelled by your choice of words. I suggest that you pay attention to the way in which you communicate nonverbally. I’m referring in particular to our communications in opening sessions in which we talk about our views of the case. It is current wisdom that we should use that opportunity to talk directly to lay persons on the other side. I counsel against that approach and suggest that locking eyes with an opposing party, no matter how benign our language and tone may be, is an intimidating experience to most lay persons. The average lay person cannot absorb legal analysis while being locked in visual contact with opposing counsel. They feel trapped, caged and put on the spot, without being able to respond. After 17 years as a trial lawyer, Andy Little formed Mediation, Inc. He has mediated over 5,500 cases and has conducted over 130 40-hour mediation trainings. He can be reached at www.mediationincNC.com or at email@example.com.
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