GETTING OUTSIDE THE LITIGATION BOX THROUGH BETTER NEGOTIATION

Published:  Sacramento Lawyer, April/May 2009 Issue, p.22

 

 

By Dave Finch

 

          Clients come to lawyers because they want resolution.  In some cases trial may be the preferred or the necessary means of that resolution, but ethical lawyers realize that we, like investment advisors, need to think also about the suitability of particular risks and the costs to which we may subject our clients.  The success of a law practice can be understood not only in terms of adversarial talent and zeal, but also in terms of skillful negotiation as well. 

            If the lawyer thinks of settlement negotiation as a litigation tool, the mindset is laced with thoughts of what the parties can do to each other in the courtroom and efforts are directed primarily toward adversarial rather than cooperative behaviors, even though the latter are more likely to yield the desired results.  On the other hand, if we begin with the proposition that negotiation is not simply a phase of, or an integral part of the litigation process, but is a stand-alone enterprise, the lawyer is more apt to treat it as a distinct topic of learning and practice, and will develop those separate skills peculiar to it. 

            The skillful negotiator, whether justifiably optimistic about the courthouse alternative or not, will be cautious in using the courthouse threat.  Reliance on such threat tactics runs the risk that the opposition will be goaded into a defiant stance and an escalation of conflict.  Remember that egos are involved.  A different sense of “fairness” may predominate on the other side, and a coercive threat may only serve to incite a more energetic opposition, however misguided that might be.  Moreover, such a threat will be a waste of time where the opposing sides hold honest and reasonable differences of opinion as to the potential case outcome. 

Conversely, if faced with an opponent using such tactics, the effective negotiator will not allow the opposition to throw her off stride with threats or belligerent demeanor, but will look for ways to bring them around to a dialogue in which her own points have a good chance to be heard.   If one retires in the face of belligerence or hostility to a self-righteous “well I tried” position, whatever opportunity may temporarily lie hidden for a successful negotiation is likely to be lost, possibly forever. 

Negotiation is communication, and behaviors that foster good communication are integral to it.   A mannerly offer to hear the opponent’s position followed by attentive listening is a good step toward a fuller dialogue from which a great deal of useful information may be gleaned.  It shows respect and encourages a more detailed exchange. The better you understand your opponent’s argument, the facts that he thinks support it, the level of emphasis he places on certain facts and the reasoning he employs, the better you will be able to formulate your own argument in a way that will be more persuasive to him.  In other words, by listening, one learns about which factual and rhetorical choices are more likely to be respected when the time for response arrives. 

In most disputes one side is likely to feel that it is being asked to pay more than it believes is warranted; while the other side feels it is being asked to accept less than it deems just.  A party’s resistance to giving up something is even greater when the other party seeks it in a self righteous and belligerent manner. By asking questions to seek clarification of the opposition argument, expressed in a genuinely interested way, the negotiator is able to learn more, while at the same time increasing the chance of focusing her opponent’s attention on the opponent’s weaker points.   Such a cooperative demeanor may sometimes effectively include an acknowledgment, free of irony or condescension, of the sacrifice or dislocation or emotional hurt the opposition is being asked to accept, while presenting the favorable considerations for the opponent.  There is no danger in this, and much to be gained. 

The mediation process often requires patience because a party who is still learning about the case needs time to digest the new information and alter her thinking about what she can and cannot accept.   What a party says about a given proposal may be a camouflage of what she is actually thinking, and allowing time and additional discussion usually results in some level of moderation or modification of the views expressed, as the parties move toward compromise. 

Negotiating success involves a focused, non-litigious, tolerant, receptive, patient and persistent effort.  It deserves to be studied and mastered as a subject separate from litigation.  The rewards include nothing less than the well-served client.

 

Dave Finch has a civil litigation background.  He limits his practice to Alternative Dispute Resolution (ADR) services from his home near Grass Valley.  He serves as Program/Education Chair of the ADR Section of SCBA.  For more information visit  www.mediationserv.com.