Julie Brook, Esq., reprinted with permission from CEB.
Whether it happens informally on the telephone or in a formal, face-to-face meeting, the beginning of a negotiation can be critical to its success. First words and impressions are lasting; a bad start can erode trust, dampen optimism for settlement, and increase the probability of deadlock.
Think of the opening as an opportunity to set a positive, productive tone for the remainder of your negotiation. Further, the opening can be used to clarify assumptions and expectations, build rapport, and lend structure to the discussion.
1. Set the right tone. How to set the right tone for the negotiation depends on what tone you wish to convey. For example, you may strongly believe that a particular lawsuit against your client was frivolous and brought in bad faith. In that case, your attitude toward settlement may understandably be very different than if you believe that resolution is in the best interests of all parties involved. Consider the following to set the right tone:
• Develop rapport. Establishing a good rapport with your counterpart will go a long way toward fostering conditions that facilitate settlement. Rapport can be established in a number of ways, including chit-chat, paying compliments, humor, and graciousness. Choose a method that comes naturally and works for you; it’s less important how you do it than the sincerity with which you do it.
• Convey understanding of, or empathy toward, the other side. Show your understanding of how the other side may be feeling as a result of the underlying events, or why it’s taking a certain position or advancing a certain argument. By understanding and acknowledging the other party’s point of view first, before you forge ahead with your own, you’re sending a signal that you’re prepared to be fair and balanced.
• Assure the other side that you’re participating in good faith. Convey your client’s sincerity and optimism about settlement by, e.g., explaining why your client is interested in terminating the litigation at this time. Conduct is as important as words in conveying your client’s seriousness about settlement, e.g., extend to your counterpart the courtesy of returning calls and emails.
• Pay attention to body language. Be attuned to the nonverbal cues you transmit, such as facial expressions, hand gestures, and the way you sit. In addition to your own body language, pay attention to that of your counterpart.
2. Introduce a problem-solving orientation. An important component of setting a positive tone for the settlement negotiation is to steer away from an adversarial orientation and toward a problem-solving one. Here’s how to foster a problem-solving atmosphere:
• Don’t argue about right and wrong. Arguing about the merits is of little use without a judge or jury to declare one side the winner. It’s far more productive to determine how both sides could be better off by settling instead of taking their chances in court.
• Turn the dispute into a deal. Consider your counterpart as a partner who can help both of your clients avoid a potentially much larger problem, i.e., the costs, time, and risks of continued litigation.
• Approach their problem as your problem. Frame the negotiation as a joint search for solutions to joint problems, not as a separate search for partisan solutions.
3. Convey your client’s perspective and aspirations for settlement. Articulate your client’s intentions, needs, and hopes for a settlement. Here’s how to assert your client’s point of view:
• Be firm but flexible. Avoid using terms such as “no” or “never.” Instead, use expressions that will keep the other side’s expectations in check but still convey optimism and possibility, e.g., “maybe,” “possibly,” and “unlikely, but.”
• Avoid making judgments. Avoid judgments of the other side; rather, favor subjective descriptions of your client’s experience.
• Emphasize your client’s interests, not positions. Don’t start with a particular position, such as “My client needs at least $100,000 to settle this case.” Instead, emphasize what motivates your client’s position. Why does your client need $100,000? By getting to the root of what’s important to your client, you can demonstrate flexibility about outcomes.
• Avoid extreme contentions. Sweeping conclusions and absolute judgments are extremely difficult to support. Instead, try to embrace the multifaceted aspect of every human interaction and acknowledge the role, however small, that your client had or may have had in causing or worsening the problem.
4. Agree on an agenda, goals, and a process. It’s useful toward the beginning of the process to reach agreements about how to work together and what to accomplish.
It’s very important to conduct settlement discussions with an agenda, which can be limited to an upcoming meeting or wide enough to set the framework for a series of meetings.
5. Consider each side’s negotiation style. It’s helpful to understand your own negotiation style and how it interacts with other styles, including that of your counterpart. Consider how you might alter your style in light of your counterpart’s style.
For more on negotiation and case settlement, see California Civil Procedure Before Trial (4th ed Cal CEB), chap 46.