Negotiations: not leisure, but not that bad

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The word “negotiation” derives from French and Latin words that originally meant “business,” “traffic,” or, in the verb form, “to carry on business.” An alternate meaning is “difficulty, pains, trouble, labor.” Perhaps my favorite, however, is the literal translation from the Latin “neg — otium” — not leisure. I think that the notion of a negotiation as something difficult and the opposite of leisure is particularly appropriate.

Having been through many negotiations myself (and just recently completing a case in which negotiation was wildly unsuccessful), I have been thinking about what it takes to negotiate well and what an attorney can do to help make a negotiation succeed. To be an effective negotiator, I think the etymology is particularly useful. It is important to keep in mind that what you are about to engage in is difficult and laborious and most decidedly not leisure. Put more simply, negotiation is hard work.

Approaching any negotiation with this mindset has two benefits. First, knowing that the negotiation will be difficult means that you can prepare your client effectively for the back and forth and, perhaps, the length of time it might take to reach a resolution. Second, you can prepare yourself to engage in something difficult.

One of the most difficult things about negotiation is preparing yourself to handle and respond effectively to any counteroffer or settlement demand that your opposing party might raise. The best way to do this is to have complete command of the facts and to communicate honestly and effectively with your client about the negotiation process, which includes making recommendations about key thresholds in the process. In addition to the hard work of preparing yourself mentally, understanding your case and communicating with your client, negotiating effectively requires a complex set of skills as well as a healthy amount of common sense. I’ll offer these three broad categories as the essentials:

1. Leverage

In most negotiations, one party has an advantage over the other. This leverage can take many forms. It can a piece of evidence, a particularly good client who a jury will like, a plaintiff- or defense-friendly jurisdiction, an expert who has done extremely well or poorly in deposition or something as simple as the facts themselves or the attorney handling the case.

The difficult part is being able to actually understand your own leverage. There is a tendency, I think, to overrate the strength of one’s own case — after all, it’s your case and you’ve lived and breathed it. Of course it’s a good case (or at least a better case than your opposing counsel thinks).

Some of the most interesting moments of my career have occurred during a negotiation or mediation when an opposing attorney has stated in clear terms, “Here is where I think you have a problem with your case.” This can take many forms: I do not think your expert will be qualified; you will not be able to get your ‘smoking gun’ into evidence; the jury will not like you star witness (who I know you think is great); or, perhaps worst of all, the jury will not like or believe your client. It’s true that some — if not all — of these examples are unknowns. What is clear, though, is that failure to recognize the possible points of leverage in your case — and your opponent’s — will likely have a disastrous effect on negotiations.

2. Civility

Civility is certainly a desired element in every step of the litigation process but it’s not necessary. Many of us, I am sure, have encountered attorneys who are rude, non-responsive and obstructionist at almost every step along the way. This doesn’t always mean that they aren’t good or successful attorneys. However, it very often will make it very difficult to negotiate successfully. Most people do not want to compromise with someone they do not like and in any sort of negotiation, whether a formal mediation or an informal courthouse hallway post-motion conversation, a civil attorney is always going to have an advantage over one who isn’t civil.

It is important to remember to save the showmanship for trial. It’s certainly important to put your best foot forward at a negotiation or mediation, but sometimes it makes more sense to pass on an opening statement so as not to poison the waters for actual dealmaking. If an opening statement is asked for, it is important to give a strong but civil one. I have had mediations where it has been clear from the outset that the case would not settle because of one attorney’s attitude. (Here’s a tip: saying, “There’s no way I can lose this case” in your opening statement is basically like telling everyone there that they’ve already wasted their time by driving to the site of the mediation). Conversely, I have had experiences where the friendliness of the attorneys permitted a deal where one might not otherwise have been made.

3. Empathy

Empathy requires being able to put oneself in the place of the opposing party (or the opposing attorney) and think about the case — the facts, the witnesses, the jurisdiction — from that perspective. I usually use the “best day” approach, which is also a phrase I use with my own clients to explain the best-case scenario.

It goes like this: “If we got into court, had a judge who granted all of our motions in limine, sustained all of our objections, overruled all of theirs and a jury who completely bought into what we were presenting, then we would get verdict x.” Trying to think about the other side’s answer to this question should help to highlight their overall mindset and approach to negotiations.

At times, this empathetic approach can also help you recognize and understand some of the opposing side’s deal-breakers or non-negotiables in advance, thereby saving not only time but also alleviating potential argument over terms on which the opposing side will never budge.

So while it is clear that negotiation in “not leisure,” it is also clear, especially to any attorney who engages in even a small amount of litigation, that becoming an effective negotiator is essential. I hope these tips are helpful and I would encourage you to add your own.