Having been a civil litigator for 22 years and also a mediator for the past 8, I estimate I’ve been involved in settlement of more than 600 cases. I can’t say whether I’m better or worse at it than anyone else with similar experience, but some fundamental concepts about the negotiation process have hammered themselves into my head. Following are five lessons I’ve learned that might be helpful to you, especially if you’re fairly new to the negotiation game, or if you only do it occasionally.
1. Know your talking points.
Regardless of what you think about modern politicians, the successful ones have this skill in common: knowing their talking points on an issue inside and out, and craftily wedging them into any conversation as often as possible. To be an effective advocate as a lawyer, you need to do the same any time you discuss your case with the other side. Regularly refresh your memory of the facts and law, as well as the strengths and weaknesses of your position. Be ready with specifics to support your new offer or response.
2. Never believe your own B.S.
Notwithstanding No. 1 above, the best advice I ever received about being a lawyer was to never believe my own B.S. In other words, use your powers of persuasion to the fullest, but when push comes to shove (e.g., when you must advise your client on whether or not to accept a final proposal), retain the ability to drop the pretense and evaluate the case as objectively as possible.
3. Don’t jump to conclusions.
Especially as a mediator, where I get a glimpse of both parties’ thinking, I’m constantly surprised at how far people are willing to move as long as they believe the other side is willing to do the same. I’ve had cases where both sides assumed for hours that the other side was intractably stuck in an extreme position, only to have the case settle shortly after one side had the courage to move toward the edge of its comfort zone — which prompted the other side to do the same. I’ve had innumerable cases that settled after looking hopeless.
4. Keep notes.
When negotiating a client’s case, I use a form on which I record each of our moves and those of the other side, including not only the financial terms of each proposal, but the issues we discussed and any subtleties or not-so-subleties I picked up from the discussion. I note any clues as to where the other side is headed or what additional steps we might take to move them in our direction. In the heat of battle, those things tend to get lost if you don’t write them down.
5. Be respectful, even if they don’t deserve it.
Early in my career, I had one or two “negotiating” sessions where I totally lost my cool and ended up in a shouting match with my opponent. I remain convinced that I was absolutely right in each of those cases and that my opponent was a jackass. Nevertheless, I doubt that it benefited my client that the negotiation got personal and emotional, rather than remaining focused on the issues. Negotiating is partly a “tough love” situation, where you need to fight for your case but without attacking your opponent personally — whether it’s the opposing lawyer or his or her client.