2 Comments Published on June 19th, 2015 by Jason Long
- Identify the interests in the case. Use broad categories to get you started like economic, social, psychological, reputational, political, and expertise. Does your client have something to lose economically like a job or lost wages? Is their reputation in jeopardy? Does the other side have economic interests at stake as well? Is there any psychological harm or trauma to your client or your opponent?
- Determine which side holds the power in each of these categories. Rank them in descending order, starting with the most powerful position for each side. This task provides you with an outline for the most powerful points for each side.
- Structure your arguments and positions around your outline. This not only helps you prepare your case, but it also gives you insight into the other side’s positions. When you realize the driving forces behind each argument, you can focus on the requirements to achieve a settlement in an efficient way.
- Information is power – You have the power to listen and learn from your opponents. It’s critical to get as much information as possible throughout the entire negotiation process. When possible, make the other side go first and play your cards close to the vest. This allows you to respond to arguments accordingly, not having to “tip your hand” and reveal your positions unnecessarily. Building rapport and asking a lot of questions (especially open-ended ones) will give you insight into the other sides’ goals, interests, and options. In short, be an information sponge.
- Maximize your leverage – As Latz lays out, this can be challenging for litigators because “they must, in effect, send two seemingly inconsistent signals.” That they’re ready, willing, and able to take the case to trial but that they’re also interested in settling. How do you do this? On the litigation side, move towards trial with a somewhat aggressive attitude. On the settlement side, try to influence the other side to start the process or note that it’s standard for your firm to discuss settlement at that particular stage of the matter.
- Use “fair” criteria – Fairness (and the perception of fairness) is key to most negotiations, legal or otherwise. As Latz points out, it “boils down to a matter of relatively objective standards, like market value, precedent, efficiency or expert opinion.” A successful negotiation often involves both sides agreeing to a fair and reasonable standard. Focusing on standards can also depersonalize the negotiation and create a foundation based on objective views.
- Design a thoughtful offer-concession strategy – This will help you avoid leaving valuable interests and items on the table. You need to understand the psychology behind the concession behavior and be able to recognize signals coming from the other side that will give you an edge. An integral offer-concession element in the legal context involves ensuring the other side leaves feeling like they made a good deal. Do this by building flexibility into your offers so you have room to move. Start at a point that allows for a range of options so you don’t get stuck on one point (see below on breaking a deadlock).
- Control the agenda – Managing the negotiation process effectively is a challenge. To strike a great settlement, you have to understand when to use and how to keenly operate within deadlines. You also need to have some insight into the psychology behind the deadlines to have an advantage during your negotiation. If the other party tries to control the agenda, negotiate in a way that meets the interests of both sides.
Jason Long is a 2015 graduate of the Oklahoma City University School of Law.